The UC and PIP Bill: Part 2 - A Detailed Legal Analysis Of The Equality Impact Assessment (EIA)

This is the transcript of my YouTube video "The UC and PIP Bill: Part 2 - A Detailed Legal Analysis Of The Equality Impact Assessment (EIA)".

Welcome to the second part of our look at the Universal Credit and Personal Independence Payment Bill as we take a detailed analysis of the Equality Impact Assessment which includes key case-law precedents under Article 14 ECHR and related equality provisions, focusing on discrimination and methodology errors.

I know this video is quite long but I hope you stick around to the end because there’s a lot of important information being covered.

Under the Equality Impact Assessment (EIA) and Public Sector Equality Duty (PSED) the Starmer regime is at legal risk because internal DWP documents showed no EIA was published before consultation began.  This was despite awareness that approximately 100,000 individuals could be pushed into poverty and that there is an extreme possibility of provoking mental health crises in vulnerable groups.

The failure to publish and meaningfully consult on the EIA breaches the PSED requirement to have due regard to eliminating unlawful discrimination and advancing equality.  As it is, the consultation was described as rushed and misleading, lacking transparency about real financial losses and true policy rationale (cost savings prioritized over claimant welfare).

After the consultation, an EIA was reportedly completed but remained unpublished, meaning decision makers lacked publicly available equality‐informed evidence, in breach of the Public Sector Equality Duty (PSED) under s.149 Equality Act 2010.  As such, any decisions based on such a process may be legally susceptible to judicial review on grounds of procedural unfairness and violation of public law duties.

So, let’s now turn our attention to some relevant European Convention on Human Rights Article 14 and other case law precedents.

A. TP & AR v SSWP (Court of Appeal, 2020)

• Severely disabled claimants (TP & AR) lost approximately £180/month after being placed on UC when moving authorities.
• The Court found this to be discrimination contrary to Article 14 read with Article 1 Protocol 1 (protection of possessions), as:
• They were treated worse than legacy-benefit claimants.
• No objective justification for the differential treatment - reasoning based on cost savings failed the manifestly without reasonable foundation (MWRF) test.
• So the messaging is that cost considerations alone do not legally justify treating disabled claimants less favourably.

B. TD & Ors v SSWP (Court of Appeal, 2020)

• In this case, legacy-benefit claimants lost entitlement due to administrative errors; they received UC without transitional protection.
• The Court ruled their different treatment from claimants with correct managed migration breached Article 14 and Article 1 Protocol 1, again due to lack of reasonable foundation and failure to justify the unequal treatment. The government’s appeal was refused by the Supreme Court.

 

 

C. TW (UKUT 2017, Upper Tribunal) (Transition from DLA to PIP)

• Appellant was moved from DLA to PIP; tribunal refused back dating of PIP from claim date, resulting in financial loss of approximately £1,000.
• Tribunal and later the Upper Tribunal held this did not breach Article 14, because:
• Policy objective was to protect PIP losers from immediate loss, balancing winners and losers.
• Reasonable justification existed under transitional rules.
• Distinguishing point: A carefully balanced transitional scheme was considered lawful; contrast with TP & AR v SSWP where treatment was deemed arbitrary.

 

D. Upper Tribunal decisions on PIP Tribunal errors

• Cases such as JT v SSWP (July 2024) and RJ, GMcL & CS v SSWP (PIP) (2017) require tribunals to properly consider the “safety” and regulation 4(2A), assess correctly Regulation 7 (“50% rule”), and make reasonable factual findings.
• Failure to engage with specialist medical evidence or DLA legacy evidence may amount to legal errors in PIP decisions.

Moving on to the Equality and Human Rights Risks with the Universal Credit and Personal Independence Bill.

The fact is that without a meaningful, transparent EIA, the PSED is not fulfilled - opening up the opportunity for a judicial review to be called.

If the Bill reproduces a system where new claimants are treated differently from existing ones without objective justification, it mirrors TP & AR v SSWP and TD & Ors v SSWP cases and could therefore be open to legal challenge.

If the new PIP criteria and UC health element changes are applied as irreversible thresholds without individualized assessment, they may amount to unjustified indirect or direct discrimination under Article 14 and Article 1 Protocol 1 of the European Convention on Human Rights as enshrined in the Human Rights Act 1998.

If tribunal processes fail to properly consider medical evidence or regulation safeguards, they will be opening themselves up to legal challenges on administrative fairness grounds.

So, let’s summarise.

The absence of a proper published EIA and procedural consultation breaches the Equality Act 2010’s Public Sector Equality Duty and introduces serious procedural illegality.

The Bill risks repeating discrimination errors seen in TP & AR v SSWP and TD & Ors v SSWP cases if new vs. existing claimant treatment lacks objective justification.

Tribunal-level failures in applying PIP regulations could further compound legal risk in assessing individual entitlement.

Unless the Starmer regime demonstrates clear, proportionate, and evidence-based justification - and fixes the current procedural deficiencies - the reforms are vulnerable to successful challenge under both equality law and ECHR jurisprudence.

We’ve come to the end of our look at the Universal Credit and Personal Independence Payment Bill but let’s just summarise what we’ve learned over these two videos before we say goodbye.

The Starmer regime is in a legally and ethically precarious situation due to the lack of a published Equality Impact Assessment at the time the Bill was being voted on, the lack of a comprehensive human rights memorandum, and seemingly no meaningful engagement with disabled people’s organisations.  This further compounds the legal and ethical failings of this Bill. The Starmer regime's duty under Section 6 of the Human Rights Act 1998 is clear: it must act compatibly with the ECHR. This Bill, as it was drafted and passed at 2^nd and 3^rd readings, fails that test.