The claimants in the legacy benefits case which was lost in the High Court are continuing the fight by applying for permission to appeal the decision.
As we reported earlier this month, four legacy benefits claimants brought a case against the DWP claiming that excluding them from the £20 uplift given to universal credit claimants was discriminatory.
That case was lost in the High Court. But the claimants have now applied for leave to appeal the decision.
This is the first step in the process of trying to get the decision looked at by the Court of Appeal.
The initial request for an appeal is likely to be refused by the High Court, who are unlikely to want to admit the possibility that their decision was wrong.
However, a request can then be lodged with the Court of Appeal itself, where there is a much better likelihood of the appeal being accepted and even won.
The claimants legal team will be aiming to show that the High Court made an error of law.
They may focus on the fact that the High Court accepted the DWP’s claim that its aim in giving the uplift was to compensate people who had recently lost their job and who would struggle to adjust to life on benefits. It could be argued that this claim was fatally undermined by the fact that the uplift was given to everyone on UC, regardless of whether they had been in work recently or not.
The result of giving the uplift to everyone was that disabled claimants on UC got the £20 uplift, but disabled claimants on legacy benefits who were in exactly the same position did not and were thus discriminated against.
The High Court held that this was merely indirect discrimination. But the claimants may well want to argue that the discrimination was entirely deliberate, direct and unlawful.
This would rest on the contention that the real reason for the uplift was that the government did not want millions of newly workless people to realise just how impossible it is to live on benefits, so they increased them temporary. They could not limit the increase only to claimants who had lost their income during the pandemic without causing uproar amongst all other UC claimants, who were equally blameless for the position they found themselves in. So they raised it for all UC claimants.
But legacy benefits claimants could be safely discriminated against because they were fewer in number and unlikely to win the support of the media.
In fact, originally the DWP said that the reason legacy benefits claimants were left out was simply because it was not possible to alter the aged legacy benefit software to give them the uplift. It was purely an insurmountable technical problem, the DWP claimed at the time. The idea that the uplift was to protect newly unemployed claimants was only invented when legal action began and has never successfully fitted the facts of the case.
There are real grounds for hope that this appeal will be successful. However, it is likely to take months and, even if the claimants do win, the DWP will almost certainly try to get the decision overturned again by the Supreme Court.
We’ll keep you posted on the progress of the case.