The Supreme Court held that local authorities and tribunals must not apply the housing benefit bedroom tax deduction where doing so would breach a claimant’s rights under the Human Rights Act 1998, including for periods before Parliament amended the regulations. RR and his severely disabled partner needed separate bedrooms, but the unamended rules allowed the couple only one and required a 14% reduction. Decision-makers had to leave that reduction out of his benefit; they were not limited to leaving him to a separate claim for damages.
The housing benefit decision
RR and his partner needed separate bedrooms because of disability. The local authority nevertheless applied the 14% reduction for one supposedly spare bedroom under the housing benefit regulations then in force.
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On appeal, the First-tier Tribunal found that the household needed the second bedroom. The question was what a public authority or tribunal should do when applying the deduction would discriminate unlawfully in the circumstances of the claimant’s case.
What remained after the earlier cases
In November 2016, in R (Carmichael) v Secretary of State for Work and Pensions, the Supreme Court held that the unamended rules unjustifiably discriminated on the ground of disability, contrary to article 14 of the European Convention on Human Rights read with article 8, where there was a transparent medical need for an additional bedroom which the rules did not recognise. The rules allowed an extra room for children who could not share, but not for a couple such as Mrs Carmichael and her husband. They allowed an extra room for an adult who needed overnight care, but not for a child who needed it, as in the Rutherford family. Those judicial review claims ended in declarations of discrimination.
Amending regulations intended to cover those two situations were laid on 2 March 2017 and took effect on 1 April 2017. They were not retrospective. The question in RR was what local authorities and the benefit tribunals were to do about earlier periods: continue applying the original deduction, or leave it out where applying it would breach Convention rights in the way already identified.
Why the deduction could not be applied
In a parallel appeal, the Upper Tribunal refused to rewrite the regulation but held that Mr Carmichael’s benefit still had to be calculated without the 14% deduction. Applying it would breach section 6(1) of the Human Rights Act, which makes it unlawful for a public authority, including a court or tribunal, to act incompatibly with a Convention right. The Court of Appeal allowed the Secretary of State’s appeal. Sir Brian Leveson PQBD and Flaux LJ held that this was an impermissible rewriting and that the remedy was damages under section 8(2). Leggatt LJ dissented on that limit, although he thought discretionary housing payments should have been taken into account. Mr Carmichael did not appeal. The Court of Appeal had stayed RR and some 130 similar cases pending its decision. Bound by that decision, the Upper Tribunal allowed the Secretary of State’s appeal in RR. It then granted a leapfrog certificate, and the Supreme Court gave permission to appeal.
Lady Hale, with whom Lord Reed, Lady Black, Lord Briggs and Lady Arden agreed, held that Leggatt LJ had been right. The Secretary of State accepted the incompatibility found in Carmichael and accepted that section 3(1) could not remove it by interpretation. His case was that the problem lay in the size criteria, that curing it required a legislative redesign which could be done in more than one way, and that councils and tribunals would usurp Parliament if they ignored the regulation. He also argued that calculating benefit without the deduction was tantamount to damages, which those tribunals cannot award, so the proper route was a separate Human Rights Act claim.
The Court held that there is nothing unconstitutional in a public authority, court or tribunal disapplying subordinate legislation where that is necessary to avoid acting incompatibly with a Convention right. The Human Rights Act carefully distinguishes primary from subordinate legislation. Section 6(2) excuses an incompatible act only where primary legislation requires it, or where the authority is enforcing legislation which cannot be read compatibly and primary legislation prevents removal of the incompatibility. Regulation B13 is not primary legislation, and the enabling Act did not require the incompatible form: the regulation was later amended. RR could rely on the Convention in the existing appeal under section 7(1)(b).
This was not a one-off. Where subordinate legislation caused a breach but the scheme could still operate without the offending provision, the courts had disregarded it: disability living allowance continued in Mathieson; a maternity grant was payable in Francis; housing benefit was calculated without the under-occupation deduction in Burnip; an unmarried couple could apply to adopt in In re G; and criminal injuries compensation was not barred by the same-roof rule in JT. RR’s case was in the same position as Burnip. There was no legislative choice left. As counsel for the Equality and Human Rights Commission put it, and the Court accepted, a legislator may level up or level down, but a decision-maker who finds unjustifiable discrimination can only level up.
The Secretary of State suggested that private-sector housing benefit, calculated under a different regulation but using the same size criteria, could not be cured in the same way. That situation was not before the Court and was not fully argued. Lady Hale said she would be surprised if an equivalent calculation could not be made, but the Court left the point open.
Discretionary housing payments
The parties agreed that discretionary housing payments were not to be deducted in this appeal. The decision under appeal was made on 5 March 2013, before the size criteria took effect, so no question of those payments could then have arisen. The First-tier Tribunal had to decide whether the council’s decision was correct, standing in the council’s shoes, and could not take account of circumstances not obtaining when that decision was made. The Upper Tribunal was under the same limit. Those decision-makers were concerned only with entitlement to housing benefit and had no power to take discretionary payments into account. Whether the council can recover any such payments, and whether it wishes to try, was left to the council.
Verdict: The Supreme Court unanimously allowed RR’s appeal and ordered his housing benefit to be recalculated without the 14% deduction. Applying it would have breached his Convention rights. Any issue about recovering discretionary housing payments remained for the local authority.
Source: RR v Secretary of State for Work and Pensions [2019] UKSC 52
