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Social Justice

Legacy benefits claimants lose High Court appeal over pandemic payments

Claimants who did not have their benefits uplifted in line with universal credit during the pandemic have had their case for backdated payments dismissed

Over two million legacy benefits claimants will not receive £720 of backdated payments, following a court of appeal decision which disability activists have described as an “absolute travesty”.

People claiming universal credit and working tax credits received a temporary £20 weekly increase on their benefits at the start of the first lockdown. It was intended to support those struggling with the economic toll of the pandemic. 

But not everyone received this. People on legacy benefits like the employment and support allowance, mostly claimed by sick and disabled people who cannot work, were not given the extra cash which was a “lifeline” in the pandemic.

The court accepted that disabled people experienced disproportionate suffering during the Covid pandemic but found in favour of the Department of Work and Pensions (DWP).

A disability activist who goes by the name Ben Claimant said he was “very disappointed”, adding: “Not just for me but for 2.5 million other claimants who were desperate for a positive result”.

Four legacy benefits claimants took the government to court in 2021 over the refusal to increase their payment by £20 a week in line with universal credit during the pandemic. 

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The High Court initially rejected the case in a decision that was described by lawyers and activists as a “national scandal” and “direct discrimination against disabled people”.  The claimants then took the case to the court of appeal in December.

Now the judgement, announced on Tuesday, has dismissed the case.

Paula Peters, a disability activist from Disabled People Against Cuts (DPAC), said the decision was an “absolute travesty”. She said: “The refusal of the legacy benefit uplift appeal will cause anger disappointment and outrage. It’s a travesty we were denied justice again today.”

Ben Claimant told the Big Issue: “When will we ever catch a break? What I find really hard is that the judges knew we suffered and accepted there was discrimination. Further, they recognised that people on legacy benefits and universal credit were in the same position, yet the case was still dismissed.

“I am extremely disappointed and hope it is possible to take this case to the Supreme Court. I cannot accept it was lawful for this Conservative government to treat people (the majority of whom are disabled) in this way and we need to keep fighting.”

The Joseph Rowntree Foundation said at the time that the £20 uplift, alongside increased support for workers, “will take hundreds of thousands of people out of poverty”. 

People claiming legacy benefits will eventually be moved to universal credit, and it is not possible to make a new claim, but there are still many people receiving these benefits today. 

The original claim wanted back payments worth £1,560 for the entire 18 months, but this was shortened at the last appeal.

Lawyer Jamie Burton told the court of appeal the government’s refusal to increase legacy benefits was “a double whammy for disabled people confirming the prejudice they’ve been experiencing and reinforcing it both materially and substantially”.

Edward Brown, the lawyer representing the Department for Work and Pensions (DWP), acknowledged the pandemic impacted “individuals who are most vulnerable in society” the hardest. But he argued that universal credit claimants were in a “fundamentally quite different” position to legacy benefits claimants.

He claimed, although the measure did help alleviate poverty, it was not intended as a “broader anti-poverty initiative”. Instead, it was designed to mitigate the impacts of people not being able to work suddenly because of lockdown.

As legacy benefits are often claimed by people who cannot work because of disability or illness, Brown argued that the “disruption” experienced by this cohort of people was incomparable to people claiming universal credit.

In his response, Burton argued it was “direct discrimination against disabled people”. He said: “If there’s a policy to give a benefit to A but not B, it is of course open to the person who didn’t get that benefit to come to court and say it was unfair.”

Lady Justice Whipple said in her decision: “There is no doubt that the four individual appellants each struggled financially during the Covid-19 pandemic and the restrictions that accompanied it. They have mental health or physical disabilities that impact significantly on their own capability for work, and some also have caring responsibilities.”

But she added: “The uplift was not targeted at alleviating hardship as a result of increased costs during the pandemic. It was targeted at alleviating a particular type of financial disruption, namely that experienced by those who had lost or were at risk of losing employment or significant income.”

In her conclusion, she said: “Despite the natural sympathy felt for the hardship and disruption faced by the appellants in consequence of the pandemic, I can detect no error in Swift J’s approach in this case. Accordingly, I would dismiss this appeal.”

Anastasia Berry, policy co-chair of the Disability Benefits Consortium (DBC) and policy manager at the MS Society, said: “This verdict is an affront to disabled people, including some with MS, and will come as a crushing disappointment to the millions who were denied emergency financial support when they needed it the most. It alsosends the dangerous message that discrimination against disabled people is acceptable.

“We stand in solidarity with the courageous claimants who brought this case all the way to the Court of Appeal, and the tens of thousands who supported the campaign. Today is a devastating blow, but these efforts were not in vain. It is a stark reminder that the fight towards a fairer societyfor disabled people must continue.”

Dan White, policy and campaigns officer at Disability Rights UK who attended the December court hearing said: “To see that another appeal has failed is one thing, but to also hear that disabled people were seen not as worthy of extra help because they were not ‘prioritised’ or ‘not in the labour market’ shows exactly how disabled lives are valued in 21st century Britain.

“Chronically ill and disabled people, have seemingly been in an eternal fight with the DWP – the government department charged with allegedly supporting their welfare – it’s supposed to assist, not deny. The court’s decision today feels like another act of financial aggression against disabled people who are left feeling like second class citizens, and who lost more than most in the pandemic.”

William Ford, the solicitor who represented the claimants, said: “I appreciate that this outcome will be a great disappointment to many people on legacy benefits who have been waiting patiently for this judgment.

“All possible effort was made to persuade the court of appeal to reach a different outcome and it is deeply disappointing that this did not prove possible. All that remains for me to do is give thanks to the claimants for being willing to bring this challenge to the government, as well as to their barrister, Jamie Burton KC and Desmond Rutledge, who so ably put forward the legal arguments on their behalf.”

It is not known yet whether the claimants will attempt a further appeal to the Supreme Court.

Read more of The Big Issue’s coverage of the legacy benefits court case:

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