Administrative Court: Kerr J,  EWHC 608 (Admin), 17 March 2021
The Claimants unsuccessfully challenged the Defendant’s policy of making deductions at a fixed rate from universal credit (UC) to pay off criminal fines. So far as relevant here, the claim alleged breach of the PSED (s149 Equality Act 2010) and unlawful indirect disability discrimination. The latter claim failed on the evidence, Kerr J pointing out that it would more suitably have been brought in the county court. The Judge did accept that the Defendant had breached the PSED but ruled against the claimants on the basis that compliance with the PSED would very likely have made no difference and that, therefore, s31A of the Senior Courts Act 1981 defeated the claim.
The policy under challenge set the level of deduction at 30% of UC payments, though this figure also represented the maximum permissible overall deduction from UC payment where deductions also made in respect of was subject to a general maximum of 30% deductions which could be made in respect of fines fell to be made in respect of other debts such as child maintenance payments and council tax arrears. Whereas the policy permitted reductions in the level of deductions made for debts such as benefit debts, Social Fund loan repayments and rent arrears to be made in cases of financial hardship, no such reductions were permitted in the case of criminal fines.
The disability discrimination claim failed because the claimant who made the disability discrimination claim failed to establish that the policy placed disabled people at a particular disadvantage, the Court rejecting the “sweeping generalisation that disabled persons are ‘generally less able to cope on an income set significantly below the subsistence level’” (quoting counsel for the Defendant). Kerr J ruled that the discrimination would have been better brought in the county court where there would have been “scope for further information, disclosure and cross-examination to the extent necessary”:
- “Mr Day’s difficulty is that there is, on the evidence, no clearly identified group of disabled persons (in the Equality Act sense) from whose benefits deductions are being taken to pay off court fines. It is for Mr Day to identify persons within that group and to prove the impact of comparing their position with that of people who are not disabled but are receiving UC standard allowance from which deductions are being taken to pay off court fines.
- That comparison is not appropriately made by considering the position of persons receiving, or (like Mr Day) not receiving disability related benefits available to those who satisfy different tests of disability which are not the Equality Act definition. The different definitions and tests produce a different cohort of people which makes the relevant comparison not possible.
- Furthermore, those who meet the criteria entitling them to disability related benefits are in a different position from those who, like Mr Day, do not, but may (as I assume Mr Day does) meet the Equality Act definition. The policy does not generate deductions from those disability related benefits which are paid over and above UC standard allowance; those in receipt of such top up benefits are in a different position from Mr Day and others who do not qualify for them but do meet the Equality Act definition of disability.”
The PSED claim also failed. Kerr J accepted, as the Defendant had, that no equality impact assessment had been carried out before the policy was adopted in October 2019. The Defendant argued, however, that “any failure in that regard is immaterial and has had no effect on what would have been ‘highly likely’ to have been the outcome for Mr Day” (relying on s31(2A) of the Senior Courts Act 1981) because the standard UC allowance was not designed or intended to meet additional needs of disabled people or additional costs they might incur, which needs were met by disability related benefits. The Defendant also relied on the fact that the deductions policy adopted in October 2019 was a continuation of the deductions policy for legacy benefits, as amended to apply to UC on its introduction, the only change made in October 2019 having been to reduce the overall maximum deduction from 40% to 30% of UC standard allowance.
Finally, the Defendant sought to rely on an equality analysis carried out in September 2020, after the claims were brought, which indicated that the deductions policy did not have any particular or disproportionate impact on the disabled. This argument was disputed by Mr Day on the basis that the September 2020 impact assessment used the class of persons eligible for disability related benefits as a proxy for disabled persons under the Equality Ac, thus excluding from consideration those such as Mr Day whose disability fell short of precluding them from working and therefore qualifying for top up benefits. It was said that the failure to assess the impact of the policy on this sub-group of disabled people constituted a breach of the PSED.
Kerr J accepted that the Defendant had breached the PSED because no impact assessment on the policy (or its predecessors) had analysed the impact of deductions from benefits or court fines. He further accepted(§130) that the September 2020 assessment was “a ‘rearguard action’” (citing Bracking v SSWP  EWCA Civ 1345 §25(4)) “not apt to cure the prior breach of the PSED” which “came after the event, perhaps prompted by these claims or other similar complaints. It was not a substitute for having due regard to the Equality Act objectives at the time the policy, and its earlier incarnations, were adopted.” Kerr J went on to refuse relief under section 31(2A) of the Senior Courts Act 1981 on the basis (§§131-132) that:
“timely performance of the PSED would have been highly likely to have led to an outcome for Mr Day and others in his position that was not materially different… The ex post facto September 2020 equality impact assessment found no material adverse impact from the policy on disabled persons, using eligibility for disability related benefits as a proxy for the Equality Act definition. There is no good reason to suppose that the conclusion would have been any different if the exercise had been done three or five years earlier.”
“133. I think it was well within the scope of the “due regard” duty to use statistics available to the government as a proxy. The PSED did not require a monumental data collection exercise to define the differently constituted class of persons disabled within the Equality Act definition. I am also not surprised to learn that the 2020 impact assessment found no material adverse impact on those it treated as disabled, for the reason given by Mr Coppel: they were entitled to top up benefits, over and above UC standard allowance.”
Claimants: Richard Drabble QC and Tom Royston, instructed by Shelter Legal (England and Wales)) for the Claimants in the first claim; Richard Drabble QC and Michael Spencer, instructed by Hackney Community Law Centre, for the Claimant in the second claim
Defendant: Jason Coppel QC and Joanne Clement, instructed by Government Legal Department
post modified 15 January 2022