Activists say the legal system has failed disabled people again, after a court found ministers acted lawfully during the pandemic when they refused to offer people on legacy benefits the same £20-a-week increase given to those on universal credit.
Three Court of Appeal court judges ruled this week that the government was legally entitled not to offer disabled people receiving employment and support allowance (ESA), income support and jobseeker’s allowance the £20-a-week increase given to universal credit claimants.
Four claimants had challenged the government’s refusal to extend the uplift to those on legacy benefits between 6 April 2021 and 5 October 2021, when they said the “exceptional circumstances” seen at the beginning of the pandemic no longer applied.
They argued that the actions of the Department for Work and Pensions (DWP) discriminated against disabled people under the European Convention on Human Rights, and were “arbitrary, unprincipled, and unlawful”.
They were appealing against a high court ruling last February which found that, while there was discrimination towards disabled people on legacy benefits, this discriminatory difference in treatment had been justified.
DWP argued that it targeted the uplift on those receiving universal credit because they were “likely to face the most significant financial disruption during the pandemic”, with many of them making new claims for benefits for the first time, while rapid changes to legacy benefits would have created a “very significant risk” to the system’s “safety and stability”.
Evidence provided to the court had shown that new universal credit recipients had in fact been “in a better position to cope and suffered less financial disruption” than existing benefit claimants and that, even among those on low incomes, “disabled people were particularly adversely affected during the pandemic”.
But Lady Justice Simler said in this week’s judgment – following a hearing in December – that DWP had made “a hard choice” to “prioritise those in the labour market… who it was anticipated would quickly become unemployed as a direct consequence of the pandemic and the lockdown measures that followed”.
Dismissing the appeal, she said the judge who had heard the original judicial review case had rightly decided that “the difference in treatment was proportionate in its impact on the disabled legacy benefit claimants” because of DWP’s “legitimate aims”.
Philip Wayland, an ESA recipient and one of the four claimants taking the case against DWP, said he believed they had won the case on moral grounds but lost it in court because it had had to be fought on narrow legal grounds.
He told Disability News Service (DNS): “Morally the case is a slam dunk in most people’s eyes.
“If I was trying to convince a jury, I am pretty sure we would win nine times out of 10, but it had to be argued in quite a narrow, legal, technical argument.”
He added: “That’s why I took the case to start with, because I thought this was so obvious.
“To not give any extra support to the most vulnerable people in society… I was just staggered, even from this government.
“It just seemed so obvious to me and everyone I have ever spoken to about it.”
The £20 uplift was only ever received by those on universal credit, and never made available to those on legacy benefits.
Wayland said he believed the case showed that DWP’s “primary motivation” was “more about forcing you through hardship to go off benefits” through “punitive sanctions or pressure”, and the low level of benefits was “the primary tactic in that aim”.
He said: “Forced hardship is a tactic to get you off welfare, which cannot be right in any civilised society. Surely there’s a more humane way to go about things.”
Disabled activists who attended a vigil outside the Royal Courts of Justice in December said this week that the legal system had failed disabled people again.
Ellen Clifford, a member of the national steering group of Disabled People Against Cuts (DPAC) and author of the award-winning The War On Disabled People, said: “The appeal ruling demonstrates the limitations of the legal system and its inadequacies for the protection of disabled people against discrimination.”
She told DNS: “The DWP made a lot of temporary changes during the pandemic at a time when many non-disabled workers came onto universal credit.
“This conveniently obscured the extent of cruelty and perversity that now runs throughout the benefits system.
“The decision to exclude disabled people from the uplift was itself an example of that cruelty and unfairness.
“But disabled people mustn’t give up hope. It’s clear that the existing social security system is unfit for purpose and allows for discrimination.
“Alternatives are being developed by, for example, the user-led Commission on Social Security, but we need to build support to make real change happen.”
Paula Peters, another DPAC activist, said disabled people had been hit hard by austerity, with rising costs and cuts to support, while she and many others had struggled to cope with the impact of the pandemic.
She suggested that many disabled people will have died during the winter because they were “denied that £20 per week uplift that would have made a difference”.
She said on Twitter: “The justice system failed us again, there is no justice for us.”
Andy Mitchell, who also attended December’s vigil, said on Twitter: “For many of us on older benefits, we do not look at this case in isolation.
“Since 2010, we’ve lost out through austerity, benefit freezes, conditionality and benefit sanctions.
“We’ve had our public services cut, we’ve been demonised and when covid struck we were ignored.
“This is what I find difficult to deal with. The judges knew we suffered hardship, accepted that there was discrimination but still found the [government’s] actions lawful.”
Jamie Burton, one of the barristers who represented the four claimants, said he believed that “the moral argument was won in the court of public opinion long ago”.
He said: “The treatment of disabled people was totally unfair.
“They had the triple whammy during the pandemic of being disproportionately affected by the virus itself, higher living costs than average and the denial of the Covid uplift that would have been a vital lifeline for so many.
“My view is that our clients should have won. The government’s rationale that new claimants would suffer ‘greater financial disruption’ was demonstrably false.
“They had more savings and were better able to cope than legacy benefit/existing universal credit claimants.
“The stark truth is that disabled people have had a cost-of-living crisis for decades.”
An appeal to the Supreme Court has not been ruled out.
A DWP spokesperson said: “We welcome the Court of Appeal’s findings in our favour.
“It has always been the case that claimants on legacy benefits can make a claim for universal credit if they believe they will be better off.”
In April 2022, DWP finally published figures proving that at least one million disabled people would eventually be left worse off through the move to universal credit.
That report concluded that just as many claimants of ESA would eventually lose out as would gain from the move across to universal credit, once the rollout of the new system was complete.
Picture: Paula Peters speaks at last month’s vigil outside the Royal Courts of Justice
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