R (on the application of Caine) v Secretary of State for Work and Pensions

Administrative Court: Julian Knowles J, [2020] EWHC 2482 (Admin), 23 September 2020

The claimant unsuccessfully sought to challenge the calculation of the housing element of Universal Credit (UC) on the basis, inter alia, that it discriminated between weekly and monthly paying tenants. The Judge accepted that the discrimination at issue fell within the scope of A1P1 and was “prepared to assume in the Claimant’s favour that, having regard to the broad approach in … cases [such as R (Stott) v Secretary of State for Justice [2018] UKSC 59, [2018] 3 WLR 1831 and R (DA & Ors) v Secretary of State for Work and Pensions (Shelter Children’s Legal Services and others intervening) [2019] UKSC 21, [2019] 1 WLR 3289] that being a weekly tenant is such a status”. In his view, however, that the applicable test for justification in the context of welfare benefit was the “manifestly without reasonable foundation” test had been “authoritatively determined by the Supreme Court’  in DA [65], approving Humphreys v HM Revenue and Customs Commissioners[2012] UKSC 18, [2012] 1 WLR 1545, §§20-22. (Note that the Humphreys approach has been superseded as a result of the decision of the Supreme Court in R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26, [2021] 3 WLR 428 (see later post)).UC is paid monthly. Where rent is paid weekly, the monthly rent element of UC (leaving aside deductions) is calculated on the basis of the weekly rate multiplied by 52 and divided by 12. The effect is that those with weekly rent are underpaid by one day’s rent a year (two in a leap year). The claimant alleged a  breach of Article 14 ECHR read with A1P1, claiming that being a weekly paying tenant was a “status” for the purposes of Article 14. In dismissing the claim the Judge cited the caselaw set out above and stated that “Where the Government puts forward reasons for having countenanced adverse treatment produced by a measure in the field of welfare benefits, it establishes justification for the measure unless the complainants can demonstrate that it was manifestly without reasonable foundation”. Applying this test, he was satisfied that any difference in treatment was not manifestly without reasonable foundation in view of the aims pursued by the defendant’s formula: “consistency with other UC Regulations; simplicity; ease of explanation; [a match with] the actual number of payments which most weekly tenants will make in most years. Added to these factors are that UC was not intended to provide full reimbursement for tenants, and DHPs [Direct Housing Payments] exist for those who may get into difficulty”. Further, “any difference is very small, and may not occur at all for many weekly tenants.”

The claimant’s rationality challenge having also failed, the application for judicial review was dismissed.

 

Claimant: Tom Royston and Ciara Bartlam, instructed by Greater Manchester Law Centre

Defendant: Claire Palmer, instructed by Government Legal Department

post modified 15 January 2022

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