Kays, R (On the Application Of) v Secretary of State for Work and Pensions

Factual and Procedural Background

This appeal arises from the dismissal by Judge Swift of a judicial review claim brought by the Appellant against the refusal of his universal credit claim by the Respondent, the Secretary of State for Work and Pensions. The Appellant is a student at The University who has severe disabilities and receives a personal independence payment (PIP). The issue concerns amendments made by the Universal Credit (Exceptions to the Requirement not to be receiving Education) (Amendment) Regulations 2020 ("the 2020 Regulations"), which require a person receiving full-time education to have a prior determination of limited capability for work before claiming universal credit.

The Appellant applied for universal credit but was refused because he had not been assessed as having limited capability for work before making his claim. He challenged the lawfulness of the 2020 Regulations and the refusal decision. The Judge dismissed the claim, holding that the Respondent was not obliged to consult before making the regulations, that the amendments were not irrational or discriminatory, and that the Respondent complied with equality duties under the Equality Act 2010.

The Appellant appeals on four grounds, challenging the rationality of the decision not to consult, the manner in which the 2020 Regulations achieve their purpose, the alleged irrationality and discrimination of the Regulations, and the adequacy of the Respondent’s compliance with the public sector equality duty.

Legal Issues Presented

1. Whether the decision not to consult before making the 2020 Regulations was irrational.
2. Whether the 2020 Regulations achieve their purpose in an irrational and arbitrary manner.
3. Whether the 2020 Regulations are irrational and discriminatory in their differential treatment of disabled students.
4. Whether the Respondent failed to comply with the public sector equality duty under section 149 of the Equality Act 2010.

Arguments of the Parties

Appellant's Arguments

• The decision not to consult was irrational because it was based on a mistaken premise about the original policy intent and failed to consider the lack of consultation on the 2020 Regulations themselves.
• The 2020 Regulations result in arbitrary outcomes by preventing backdating of universal credit claims and leaving assessment delays to the department’s discretion.
• The purpose of the 2020 Regulations is irrational and discriminatory by creating arbitrary distinctions between disabled students who have or have not been assessed before claiming universal credit, ignoring the equal needs of disabled students for financial support.
• The Respondent failed to have due regard to the equality impact, including the financial and age-related effects on disabled students, and did not adequately assess or obtain necessary information before making the Regulations.

Respondent's Arguments

• There was no statutory or common law duty to consult before making the 2020 Regulations, and the decision not to consult was rational given the settled policy and prior lack of consultation on the original 2013 Regulations.
• The 2020 Regulations rationally addressed the unlawful practice identified by the First-tier Tribunal by removing the requirement to refer students for assessments triggered by universal credit claims, while keeping other related arrangements under review.
• The differential treatment between groups of disabled students is justified and rational, reflecting social and economic policy considerations and the distinction between those already receiving universal credit and those entering education from school.
• The Respondent complied with the public sector equality duty by having due regard to the impact on disabled students, considering available support systems, and acting with appropriate urgency given the unlawful practice and policy context.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by acknowledging the absence of any statutory or common law duty to consult prior to making the 2020 Regulations. It accepted that the Respondent had a clear, settled policy that students receiving specified disability benefits must have a prior determination of limited capability for work before claiming universal credit. The decision not to consult was rational and lawful, reflecting a policy continuity rather than a new policy requiring consultation.

Regarding the manner in which the 2020 Regulations achieved their purpose, the court found it rational for the Respondent to take a stepwise approach—amending the universal credit regulations promptly while leaving related employment support allowance arrangements under review. The court recognized that the Regulations closed the primary route for disabled students to claim universal credit without a prior assessment, addressing prior unlawful practice, and that delays or errors in assessments were not attributable to the Regulations themselves.

On the alleged irrationality and discrimination, the court identified a rational distinction between two groups of disabled students: those entering full-time education directly from school expected to rely on the student finance system, and those already receiving universal credit who would not be discouraged from education by retaining their benefits. The court found the distinctions justified by social and economic policy considerations, rejecting the Appellant’s claim of unlawful discrimination or irrationality.

In relation to the public sector equality duty, the court applied established principles emphasizing substance over form and the contextual nature of due regard. It found that the Respondent had sufficient information about the impact on disabled students, had considered available support mechanisms, and had appropriately balanced urgency with equality considerations. The court accepted that the Respondent’s approach complied with section 149 of the Equality Act 2010.

Holding and Implications

The court DISMISSED THE APPEAL.

The direct effect of this decision is the upholding of the 2020 Regulations and the dismissal of the Appellant’s claim for judicial review. The court confirmed that the Respondent acted lawfully and rationally in amending the universal credit eligibility criteria without consultation, in the manner of achieving the policy aims, in the differential treatment of disabled students, and in compliance with equality duties. No new legal precedent was established; the decision reinforces established principles concerning rationality, discrimination, and the public sector equality duty in the context of social security regulations.