Loss of severe disability premiums — update

Some women who lost severe disability premiums (SDPs) have been in touch with us since the judge ruled in favour of the two disabled men who lost severe disability premiums after they moved area and were made to change from ESA to Universal Credit (UC).

It’s so frustrating that despite winning in court, other disabled people affected by the same cut have not been reimbursed.  There is no DWP process at the moment to apply for the money up until compensation comes in — only bringing a legal case individually.  Those who have already lost out by moving to a UC area are dependent on new regulations which are still to be finalised.  The regulations are currently expected to come into force at the beginning of 2019.

We checked with the solicitors Leigh Day (info below) who represented the disabled men who brought the legal challenge.  They told us that the government (minister Esther McVey) had applied to the Court of Appeal to appeal against the ruling in favour of the disabled men.  They are waiting for the Court of Appeal’s decision.

There is a provision in the regulations to compensate people who lost their SDPs — but by how much is being fought out.  Esther McVey has proposed a flat rate of £80/month; for now, this amount would be both backdated and an ongoing payment. This is below the SDPs amount by about £55 per month.  It doesn’t include any provision for the loss of the enhanced disability premium (now £16.40), so many people are losing out by £100 a month. Enhanced disability premium is added where the disabled person gets the highest rate DLA or PIP for their care or daily living needs.

The draft regulations have been scrutinised by the Social Security Advisory Committee (SSAC) which is made up of independent people, some who are disabled. We put in evidence to the SSAC. Various other organisations have put in representations.

The SSAC have now sent their recommendations to the DWP.  But unfortunately, the SSAC’s recommendations won’t be published until the DWP publish their response, together with the regulations that will be laid before Parliament. The DWP may decide to amend the draft regulations as a result of SSAC’s recommendations but they are not obliged to – we will see whether the government continues its harsh position or what difference everyone’s efforts make.

Here is more detail from the legal team at Leigh Day:

“The Government’s draft regulations on managed migration as sent to SSAC provide that from the date the regulations come into force no individuals in receipt of SDP who continue to fit the eligibility requirements will be moved onto Universal Credit until managed migration begins in 2019 when full transitional protection will be available. For those, like our clients who have been unlucky enough to already have been moved onto Universal Credit and lost the SDP which was paid into their ESA (or certain other legacy benefits such as IS) the Government in the draft regulations proposes to provide compensation at a flat rate of £80 per month both retrospectively and as a “top up” going forward. There are different provisions contained in the draft regulations for those individuals now in receipt of LCW [Work-Related Activity Group]. The following is the link to the website which contains the draft regulations and an explanatory memorandum to them: https://www.gov.uk/government/consultations/moving-claimants-to-universal-credit-from-other-working-age-benefits.

We made submissions to SSAC about why we considered the draft regulations were inadequate and in our view constitute unlawful discrimination.  The Government do not have to follow the recommendations that SSAC make, but they may do and so it is possible the draft regulations may change (which could cause them to be delayed beyond January 2019). If the regulations do not change and do not compensate those affected properly then we consider that there are clear grounds to bring further urgent judicial review proceedings challenging the relevant provisions on the basis that they constitute unlawful discrimination.   

Esther McVey has sought permission to appeal the judgment of the High Court in the case of TP and AR and the parties are currently waiting for the Court of Appeal’s decision on whether to grant her permission to appeal. At this stage there are no further public law proceedings which individuals could bring on the issue in the case but individuals could seek legal advice regarding issuing private law proceedings for compensation.”