Public Law Case Update ' Q1 2023

• Jurisdiction: European Union
• Law Firm: Gowling WLG
• Subject Matter: Government, Public Sector, Food, Drugs, Healthcare, Life Sciences, Energy and Natural Resources, Technology, Energy Law, Oil, Gas & Electricity, Terrorism, Homeland Security & Defence, Government Contracts, Procurement & PPP, Human Rights, Security
• Author: Mr Kieran Laird, Emma Kensett and Catrin Headland
• Published date: 17 May 2023

In the May 2023 edition of our case updater, we offer a straightforward and concise overview of six public law and regulation cases from the first quarter of 2023 which highlight important points of principle and procedure.

Gowling WLG's team of public law and regulation specialists examine the following cases and identify the key points which can be taken from them.

The timing of proportionality assessments in human rights claims

In response to the outbreak of the covid-19 pandemic, the Secretary of State introduced the Social Security (Coronavirus) (Further Measures) Regulations 2020 (the 2020 Regulations) which raised universal credit payments by '20 per week for a year starting from 30 March 2020. This was then extended by six months to 5 October 2021 by the Universal Credit (Extension of Coronavirus Measures) Regulations 2021 (the 2021 Regulations). In neither 2020 nor 2021 was there a corresponding uplift made to legacy benefits that universal credit was brought in to replace.

In T & Ors v Secretary of State for Work & Pensions, the appellants challenged the decision not to increase legacy benefits in 2021. They argued that by the time the 2021 Regulations were adopted, the exceptional circumstances that justified the 2020 Regulations no longer applied, meaning that the difference in treatment between those collecting universal credit and those receiving legacy benefits (when the uplift was extended) constituted unlawful discrimination under article 14, when read with article 8 and article 1 protocol 1 of the European Convention on Human Rights (the ECHR).

At first instance, it was held there was indirect discrimination because the measure had a disproportionate effect on disabled people. However, the difference in treatment was justified because of the exceptional circumstances and the need to further the legitimate objective of supporting those out of work and making claims for the first time due to the pandemic.

Swift J accepted the Secretary of State's submissions that increasing the legacy benefits would not further this objective and would require a longer and more complex process. Thus, it was proportionate to make this temporary change only to universal credit. Swift J found that the reasoning for uplifting only universal credit in 2021 was materially the same as the reasoning in 2020.

Permission to appeal was granted solely to assess whether Swift J had erred in his assessment of proportionality by focusing on the decision-making in 2020, and not the current facts.

The Court of Appeal dismissed the appeal holding thatthe Human Rights Act 1998 requires the court to exercise a different role in human rights cases than when considering other public law grounds. As per Lord Nicholls in Wilson v Secretary of State for Trade and Industry, the correct approach when dealing with ECHR cases is to assess questions of justification and proportionality as matters stand at the time when legislation is applied to a person, not when it was originally enacted.

The court will take into account where there is a material change in circumstances such that a measure is no longer rationally connected to a legitimate objective, or that its impact was significantly different at the time of the challenge than it was when the measure was adopted.

However, neither applied in this case, nor had Swift J erred in his proportionality assessment. He addressed both regulations and found that many of the factors that informed the 2020 decision had inevitably also informed the 2021 decision. It was implicit in his judgment that he rejected the appellants' argument that the exceptional circumstances no longer applied at the time of the 2021 Regulations.

A litany of public law wrongs in clawing back benefit overpayments

R (K) v Secretary of State for Work & Pensions concerns a claimant who was overpaid universal credit, due to the Secretary of State mistakenly treating their disabled son as being in full-time, non-advanced education. The claimant had taken all reasonable steps to clarify her entitlement, but the payments were repeatedly miscalculated. Despite this, the Secretary of State refused to waive recovery of the overpayment applying the policy set out in his 'Benefit Overpayment Recovery Guide' (BORG).

The claimant challenged the decision on a number of grounds including that -

1. failure to publish the 'Decision Makers Guide to Waiver' (DMGW), a supporting policy to the BORG, was unlawful,
2. the decision failed to take into account relevant considerations and was therefore irrational,
3. it breached her legitimate expectation, and
4. the Secretary of State had breached the public sector equality duty in section 149 of the Equality Act 2010 (the PSED).

In relation to the first ground, the claimant argued that the DMGW and the BORG were inconsistent, with the criteria...