About this case:

• Citation:
  [2025] NIKB 23
• Judgment:
  External link
• Court:
  NI High Court
• Judge:
  Mr Justice David Scoffield

Delivering judgment for the High Court, Mr Justice David Scoffield determined: “Notwithstanding the sympathy the court has for the applicant in her particular circumstances, this is a case where there was a rational foundation for the respondent (and, more importantly, Parliament) proceeding as it did and excluding those potential COLP claimants who were in receipt of HB only; and where the difference in treatment is justified generally notwithstanding hardship on the facts of certain individual cases.”

Roman Lavery KC and Sinead Kyle appeared for the applicant, instructed by the Law Centre NI. Tony McGleenan KC and Philip McAteer appeared for the respondent, instructed by the Crown Solicitor’s Office.

Background

The applicant, then a recipient of Universal Credit (UC) comprising a housing costs element, became homeless in July 2021 and was accommodated in temporary accommodation provided by the Northern Ireland Housing Executive (NIHE) until she resolved her living situation in May 2023.

When the applicant became homeless, her housing costs could only be paid by way of Housing Benefit (HB) instead of being paid through UC due to regulation 6 of the Universal Credit (Persons Required to Provide Information, Miscellaneous Amendments and Saving and Transitional Provision) Regulations (Northern Ireland) 2018 (SR 2018/92). The effect of her receipt of HB reduced her UC entitled to nil when her other income was taken into account.

In circumstances where, unlike UC, HB is not a qualifying benefit for the purpose of Cost of Living Payments (COLPs) under sections 1 and 2 of the Social Security (Additional Payments) Act 2022 and of the Social Security (Additional Payments) Act 2023, the applicant was ineligible to receive COLPs.

The applicant challenged sections 1 and 2 of the 2022 and 2023 Acts on the basis that they violated her rights under Article 14 of the European Convention on Human Rights (ECHR), in conjunction with Article 8 ECHR and/or Article 1 of the First Protocol to the ECHR (A1P1).

The applicant contended that she unlawfully lost out on COLPs in the total sum of £951.00 due to the operation of the operation of the impugned provisions.

Submissions

The applicant contended that there was no objective justification for the difference in treatment between her as a homeless person in temporary accommodation versus others who were eligible for COLPs. 

The respondent argued that there was reasonable justification for any such difference in that the exclusion of HB-only claimants from the COLP regime inter alia enabled the quick and simple delivery of the scheme in circumstances where their account details would not necessarily be held by the Department of Welfare and Pensions, and avoided potential duplications of payments for those claiming HB and some other qualifying benefit.

The High Court

Having set out the relevant statutory provisions, Mr Justice Scoffield considered the policy developments in the UK which led to the enactment of the 2022 and 2023 Acts. 

The judge also described the backdrop to the Acts being the cost-of-living crisis in the UK arising in the period of recovery from the Covid-19 pandemic, which crisis was contributed to by the effects of the war in Ukraine.

As to the applicant’s case, the court noted that the applicant’s Article 14 ECHR challenges required a structured analysis of whether the circumstances fell within the ambit of another ECHR right, whether the difference in treatment was on the grounds of the applicant’s status which is recognised under Article 14, whether there is a difference in treatment between the applicant and another person in an analogous situation, and whether the difference in treatment was reasonably and objectively justified.

Finding that the applicant’s case did fall within the ambit of A1P1 and so Article 14 was engaged, the court also proceeded on the basis that the alleged discrimination fell within the ambit of the applicant’s Article 8 rights, without formally deciding on the matter.

As to whether the applicant’s status was a protected one under Article 14, the court was satisfied that a status capable of being protected under Article 14 need not be permanent and that the concept of “other status” in the article is now often given a broad meaning. 

The court accepted that the applicant’s status called for a justification of the differential treatment provided that her circumstances were sufficiently analogous to those of a comparator treated more favourably, and rejected the respondent’s contention that the applicant’s status was entirely defined by the differential treatment complained of.

However, the court noted that the position was complicated as a key feature of her situation was that her housing costs were met through HB rather than a housing component of UC; and her non-eligibility for COLPs arose because her additional income reduced her UC entitlement to nil when the housing component was removed.

As to her comparator, the applicant compared herself to the broad cohort or people who had not lost their eligibility for COLPs by becoming homeless and being housed in temporary accommodation.

Contrary to the respondent’s arguments, Mr Justice Scoffield did not consider the applicant’s position to be too dissimilar to her chosen comparator group, noting that in any event, this issue was not determinative.

Moving to consider whether there was justification for the difference in treatment complained of, the judge explained that much of the analysis would depend upon how the applicant’s situation should be categorised and what one takes as the starting point for the justification advanced.

The court noted that the on the respondent’s case, the applicant was to be viewed as part of the cohort of HB-only claimants, which was specifically considered and ruled out of eligibility at the time of policy development for reasons discussed and weighed at the relevant time. 

As to the applicant’s case, the court considered her arguments that while she was excluded from eligibility for COLPs because she was in receipt of HB only, this arose for a particular reason (namely the manner in which her housing costs were met by reason of her being homeless and housed in temporary accommodation) and that individuals in her specific position were not identified and considered when the policy was developed such that the respondent could not now claim that it addressed the matter in a rational and informed manner.

The court did not agree that the absence of specific consideration of cases such as the applicant’s should be given significant weight having regard to the jurisprudence in that area, and accepted the respondent’s rationale for the use of broad categorisations in state benefits schemes and for the exclusion of potential COLP claimants who were in receipt of HB only.

Mr Justice Scoffield was concerned that the differential treatment did not solely arise due to the applicant’s relevant status, but arose in part because of her other income which also materially reduced her entitlement to UC, reducing this to zero.

The judge was convinced that the ground upon which discrimination was asserted was not a “suspect” ground but rather the measures were of general economic and social strategy and the differential treatment reasonably and objectively justified.

Noting that a very low intensity of review was appropriate in the case before it, the court found that the respondent’s approach “prioritised simplicity and speed in order to meet the crisis which households were facing; recognising that this was not a perfect scheme but that other discretionary funding was available to mitigate hardship where claimants fell outside the eligibility criteria. It was rational and proportionate for government and the legislature to proceed on this basis and it is not for the court to seek to dictate or rewrite the terms of the intervention”.

Conclusion

Accordingly, the High Court dismissed the application for judicial review. 

In The Matter Of An Application By Louise McCarron For Judicial Review [2025] NIKB 23