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Thread: TP & AR fourth win at judicial review

  1. #1
    Senior Member nukecad's Avatar
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    TP & AR fourth win at judicial review

    As expected-
    https://www.leighday.co.uk/latest-up...versal-credit/

    If you moved to UC you lost both SDP & EDP.
    Previous judicial reviews resulted in a SDP transitional element added to UC but the EDP loss was still being ignored.
    This new ruling changes that.

    (Just to add - this ruling is also significant for those on IR ESA who didn't get the covid uplift. It reaffirms that those with LCW/LCWRA should be treated the same whether ESA or UC).
    Last edited by nukecad; 21-01-22 at 18:20.
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    Good News (as expected ), but it dont say nowt about the 20 uplift or am I missing summit

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    Not the sharpest knife here but was on esa income related until March 2021 what does that mean for the likes of myself know about the transition thing but that’s about it

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    Apologies had to move from income related esa to universal credit as I moved to a different local authority in March 2021

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    Senior Member nukecad's Avatar
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    Quote Originally Posted by StueyR View Post
    Good News (as expected ), but it dont say nowt about the 20 uplift or am I missing summit
    No you are not missing anything.
    This case goes back to well before covid and is not about the £20 covid uplift.
    The ruling does mention it in passing, but only because the DWP had ridiculously tried to claim that the temporary covid uplift compensated for the permenant loss of EDP.
    (Clutching at straws, they knew they had no reasonable argument at all).
    Mr Justice Holgate found:

    • The Covid-19 uplift received by UC claimants during the pandemic does not undo or make up for the disadvantage caused by the failure to cover the loss of EDP.
    • The inclusion of relief for EDP would not overpay those of the 71,000 claimants who receive SDP but not EDP. Overpayment could be avoided if legislation provided for six fixed rates of payment rather than three. “The suggestion that transitional payments in respect of EDP could not be deliverable has simply not been made out,” he said.
    • The risk that a ruling in favour of TP and AR would trigger ‘piggyback’ (similar, other) claims was not realistic.
    • The Secretary of State had not shown a reasonable relationship of proportionality between her aim of curtailing public expenditure, and the decision not to provide any element of transitional relief against the loss of EDP.
    The main point to bear in mind is that the whole basis of the judgements in the 4 TP & AR Judicial Reviews (all 4 have ruled that the DWP have been acting unlawfully) is that the government/DWP can't treat you differently just because of the timing of when you will migrate from legacy benefit to UC.
    It's unlawful if/when they do that.

    So in the TP & AR cases the rulings have all been that they had to be given the same "Transitional Protection" that someone who is going to be Managed Migrated will get.

    In other words those who naturally migrate to UC and those who are waiting to be managed migrated to UC have to be treated the same.

    And that has relevence to the seperate uplift JR case - because 'treated the same' works both ways, and those already migrated from legacy benefits to UC got the £20 uplift while those still waiting to be migrated didn't, so they weren't treated the same.

    Note that that argument only applies to legacy benefits that will be eventually migrated to UC, and not to any benefits that will not be migrated.
    The Uplift JR as it has been made tries to include all legacy benefits rather than just those that will be migrated, so personally I think it was trying for too much and the outcome is still not certain.
    Depending on how that judge rules in that uplift JR then it may need doing again - just for those that will be migrating and so haven't been treated the same.

    I would expect that now this 4th TP & AR judgement is out the uplift JR judge will be studying it carefully.
    Last edited by nukecad; 22-01-22 at 09:03.
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    Senior Member nukecad's Avatar
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    Quote Originally Posted by robbie66 View Post
    Not the sharpest knife here but was on esa income related until March 2021 what does that mean for the likes of myself know about the transition thing but that’s about it
    This new ruling will affect anyone who had the EDP (Disability Income Guarantee) in their IR benefits before moving to UC, and those who migrate in future.
    That's mainly those in Support Group/LCWRA but there are some others.

    The DWP will have to backpay those who have already migrated for the loss of EDP since they moved to UC, and add an ongoing 'EDP Transitional Element' in UC.

    Although they might just rename the current 'SDP Transitional Element' and pay it at different rates depending on what premiums you had in ESA.
    (That's what the judge suggests when he talks about 6 rates rather than 3, see the quote above).

    I notice that there was also a side ruling that addresses a loss of child disability Tax Credits during a migration to UC,
    The failure to provide transitional protection against the loss of the lower disabled child element of Child Tax Credit was found to constitute unlawful discrimination.
    I'm not well up on that particular issue but obviously someone was being thorough.
    Last edited by nukecad; 22-01-22 at 09:16.
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    Thanks nukecad got confused with the transition thing with universal credit so yes I’m missing the EDP since transferring over to universal credit last March 2021 and I presume the dwp will also lose the covid uplift case for which I missed out on for best part of a year the result of that case is due soon ?

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    Senior Member nukecad's Avatar
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    The covid uplift case has been heard back in November and we are waiting for the judgement.

    As I said above I'm slighty worried that the legal team on that one have maybe asked for too much by trying to include all benefits, even those that won't be migrated to UC.

    If the benefit is not one that will be migrated to UC anyway then the 'treated the same whatever date you migrate' principle obviously doesn't apply.

    You can kind of see why they tried to include all benefits and not just those that will be migrated, but trying to include benefits that won't be migrated means using a different part of the law, which may be one step too far, and may backfire.

    It would have been simpler just to argue that benefits that will be migrated to UC should also have got the uplift.
    (And then once you got that you could push for other 'non-migrating' benefits to get it too).

    All these legacy/UC discrepancy problems are arising simply because the government/DWP can't get managed migration to UC started let alone finished.
    Remember that according to the original plans everybody should have been migrated to UC by 2019, well before covid, and if that had happened on time then they would all have got the uplift.
    Last edited by nukecad; 22-01-22 at 13:04.
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    Perhaps Im just dimmer than I thought the benefits uplift was only for universal credit (agreed) the only way to get it is to claim universal credit (agreed) So they tell me to claim UC, but Iget SDP which prevents me from claiming UC errr, summits not right here, can someone explain? So I cant get the uplift because Im not on Universal Credit and the system wont let me on universal credit, you cant win

  10. #10
    Senior Member nukecad's Avatar
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    Having SDP no longer prevents you from claiming UC, you can now migrate to UC and get a 'SDP Transitional Element'.
    And have been able to since 27 Jan 2021.

    So it's correct that if you had SDP you couldn't migrate to UC during the first 10 months of the UC uplift, but you could have done for the last 8 months.

    Smoke and mirrors MP statements tend to give false impressions

    This 4th TP & AR case was all about that SDP Transitional Element only making up for the loss of SDP but not for the loss of EDP.

    Those who will be managed migrated will get protection for both and so those naturally.migrated should get the same.
    The first TP & AR ruling said just that, but the government have kept trying to pay less. And will no doubt keep trying.
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