DWP faces High Court battle over ‘morally bankrupt’ legacy benefits rule

This week the government finds itself in court over a “morally bankrupt” refusal to give Covid support to disabled people on legacy benefits.

At the start of the pandemic, ministers increased universal credit payments by the equivalent of £1,040 per year. But it did not – and resisted repeated calls to – increase payments to those on legacy benefits including jobseekers allowance and employment and support allowance (ESA).

These welfare payments, which are gradually being replaced by universal credit, are claimed largely by disabled people – who faced soaring living costs in lockdown including deliveries and private transport to appointments in an attempt to stay protected from the virus.

Now the fierce campaign will culminate in a legal showdown driven by four people who rely on legacy benefits to afford basic essentials. On November 17 and 19, solicitors will tell the High Court that the Department for Work and Pensions is guilty of “unlawful discrimination”.

Philip Wayland, a claimant in Essex, first spoke to solicitors about the issue and helped secure permission for a hearing earlier this year. He is unable to work due to long-term mental health issues and relies on ESA to get by. A year after ministers first increased universal credit by £20 per week, he “couldn’t believe nothing had been done”.

“It was around the time of seeing Rashford on TV asking for meals for the kids,” Wayland told The Big Issue. “I felt that someone had to do something. It was a once-in-a-lifetime pandemic, a really serious global illness, and the people the government chose not to give that £20 boost to were sick and disabled people who can’t work.

“It was one of the most abhorrent things a government could do to its citizens yet they’ve got away with it this whole time.”

The 41-year-old lives with his mother, who is retired. Between his welfare payments and her pension they are able to cover the basics, but he said it wouldn’t take much for him to “end up in food bank queues like everyone else.”

He has been hit hard by the increasing cost of living during the pandemic. 

“We had to shield due to my mum’s underlying health conditions, meaning we needed shopping deliveries and that alone is a few extra quid each time. A few extra that we don’t have,” he said. In March 2020 he was paying £49 per month for electricity. Now his bill is £124 per month.

But he has it better than many of the more than two million people currently on legacy benefits, he said, adding that the government ignored pleas to boost their payments too is emblematic of the “invisibility” of disabled people in the UK since 2010.

That’s why he decided to take the issue where he knew they would be heard: the High Court.

It has been surprisingly easy, Wayland said. “I haven’t moved from the couch. I successfully applied for legal aid, I’ve been speaking to the solicitors, all through my iPhone. I don’t even have a laptop.” 

He and the other three claimants behind the case have provided solicitors with documents, bank statements and other evidence of how their low payments affected them through lockdowns – and how an extra £20 per week would have made all the difference.

“Every time a policy decision is made it’s the people who are the most vulnerable, those who can’t work, who are hit hardest,” he said. “And after 11 years of that, you can no longer pass it off as a coincidence. It’s disgusting and morally bankrupt.” 

Even if they had been given the increase, people on legacy benefits would likely still be receiving less than they would had the government not frozen benefit rates for four years.

“They call themselves compassionate Conservatives. There’s all this talk of putting their arms around people. It’s nonsense,” Wayland added. “It’s this old idea that if you can’t work you’re useless to society. You’re completely erased.”

Campaigners, charities and MPs – including the work and pensions committee – started pressuring the government to extend the uplift to people on legacy benefits early in the pandemic, to no avail. 

Around the time Wayland and the group’s solicitors applied for a hearing earlier this year, work and pensions secretary Thérèse Coffey was telling MPs on the committee she didn’t believe people on legacy benefits had been treated badly during the Covid-19 crisis.

They “had no extra help at all even though it’s clearly established disabled people have faced significantly increased costs,” committee chair Stephen Timms told her. “Surely they should’ve had something to help?”

But Coffey said she was “not aware” of extra costs that would have been “unduly incurred” by sick and disabled people in lockdown.

“For the last 18 months millions of disabled people, single parents and others on legacy benefits have been discriminated against and struggled to put food on the table without the £20 a week increase,” Ella Abraham, policy and campaigns officer for anti-poverty organisation Z2K and co-chair for campaigns at the Disability Benefits Consortium, told The Big Issue.

“We’re here at the High Court today to call on this government to put an end to this discriminatory two-tier social security system. We want to see backdated payments for all those on legacy benefits who struggled to pay for essentials during the pandemic.

“We also want the government to recognise that benefit levels are woefully low. Social security income needs to be increased urgently so that everyone is supported to live a stable and dignified life.”

Wayland credits activists such as Z2K and Disabled People Against Cuts (DPAC) for making the concept of taking the government to court a little less daunting. Campaigners are meeting outside ahead of the first day in court to support the claimants bringing the case and to acknowledge the people left behind by the UK’s welfare system.

“It does weigh on you a bit, knowing you’re trying to help about two million other people,” he said. “Ultimately it’ll be up to the solicitors and the judge but it is daunting, especially for someone like myself who struggles with a lot of parts of life. But the support networks and messages from the public have really helped.”

The chancellor cut universal credit back to pre-Covid levels in early October, impacting nearly six million people. Activists want the government to reinstate it for all benefits and give backdated payments of around £1,200 to the sick and disabled claimants who missed out if the court makes a declaration in their favour – but the court can’t compel the government to do so.

A DWP spokesperson said it has “always been the case that claimants on legacy benefits can make a claim for universal credit if they believe that they will be better off”.