The Supreme Court has held that social security tribunals and local authorities have the power or duty to calculate entitlement to housing benefit without making deductions for under-occupancy, so as not to violate a claimant’s rights under the European Convention on Human Rights.
The background to the appeal was that on 9 November 2016 the Supreme Court gave judgment in a series of judicial review claims concerning Regulation B13 of the Housing Benefit Regulations 2006, which governed the removal of the spare room subsidy, otherwise known as the ‘bedroom tax’ (R (Carmichael) v Secretary of State for Work and Pensions  UKSC 58 (‘Carmichael SC’)).
It declared that where there was a ‘transparent medical need for an additional bedroom’, which was not catered for in regulation B13 (5) and (6), there was unjustified discrimination on the ground of disability, contrary to article 14 of the European Convention on Human Rights.
Regulation B13 was amended in 2017 by Parliament to reflect the ruling, but this was not retrospective.
The principal question arising in RR v Secretary of State for Work and Pensions  UKSC 52 was the effect of the Supreme Court’s decision in Carmichael SC on decision-makers in the housing benefit system – local authorities, and the First-tier Tribunal (‘FTT’) and the Upper Tribunal hearing appeals from local authority decisions – in claims relating to periods before the amendment.
A second issue was whether account should be taken of any discretionary housing payments (‘DHPs’) received by the claimant during the period, if the deduction to housing benefit should not have been applied.
The appellant, RR, lives with his severely disabled partner in a two-bedroomed social housing property for which he claims housing benefit. They require separate bedrooms because of her disabilities and her need to accommodate medical equipment and supplies.
In 2013 his local authority applied the discount to his housing benefit required by Regulation B13.
RR appealed to the FTT which found that he had suffered unjustified discrimination. To avoid this discrimination the FTT held that regulation B13(5)(a) should be read so as to apply to persons in RR’s position, pursuant to s 3 of the Human Rights Act 1988.
The respondent Secretary of State appealed to the Upper Tribunal. The appeal was stayed while a similar appeal by Mr Carmichael proceeded to the Upper Tribunal and then to the Court of Appeal.
The Upper Tribunal held that the FTT’s reading of regulation B13(5)(a) was impermissible but reached the same result by holding that the decision to make a deduction from Mr Carmichael’s housing benefit was a clear breach of his Convention rights, contrary to s 6(1) HRA (‘Carmichael UT’).
The Court of Appeal reversed that decision. The stay in RR’s case was then lifted and the Secretary of State’s appeal was allowed by the Upper Tribunal.
The Upper Tribunal granted RR a ‘leapfrog certificate’ under s 14A Tribunals, Courts and Enforcement Act 2007, enabling him to appeal directly to the Supreme Court.
The case was heard in the Supreme Court by Lady Hale (President), Lord Reed (Deputy President), Lady Black, Lord Briggs and Lady Arden.
The Supreme Court unanimously allowed the appeal against the local authority’s decision. It ordered that RR’s housing benefit is to be recalculated without making the under-occupancy deduction of 14%, in order to avoid a breach of RR’s rights under the Convention, contrary to s 6(1) of the Human Rights Act.
Lady Hale, who gave the only reasoned judgment, said: “There is nothing unconstitutional about a public authority, court or tribunal disapplying a provision of subordinate legislation which would otherwise result in their acting incompatibly with a Convention right, where this is necessary in order to comply with the HRA. Subordinate legislation is subordinate to the requirements of an Act of Parliament. The HRA is an Act of Parliament and its requirements are clear.”
The Supreme Court President said the Human Rights Act drew “a clear and careful distinction” between primary and subordinate legislation.
She added: “This is shown, not only by the provisions of section 6(1) and 6(2) which have already been referred to, but also by the provisions of section 3(2). This provides that the interpretative obligation in section 3(1):
‘(a) applies to primary and subordinate legislation whenever enacted;
(b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and
(c) does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents the removal of the incompatibility.’
“Once again, a clear distinction is drawn between primary and subordinate legislation.”
Lady Hale said primary legislation which could not be read or given effect compatibly with the Convention rights must still be given effect, as must subordinate legislation if primary legislation prevents removal of the incompatibility. “If it had been intended that the section would not affect the validity, continuing operation or enforcement of incurably incompatible subordinate legislation, where there was no primary legislation preventing removal of the incompatibility, the HRA would have said so.”
The President said the courts had consistently held that, where it was possible to do so, a provision of subordinate legislation which resulted in a breach of a Convention right must be disregarded, if it was possible to do so without affecting the statutory scheme.
Lady Hale continued: “…Where discrimination has been found, a legislator may choose between levelling up and levelling down, but a decision-maker can only level up: if claimant A is entitled to housing benefit of £X and claimant B is only entitled to housing benefit of £X-Y, and the difference in treatment is unjustifiably discriminatory, the decision-maker must find that claimant B is also entitled to benefit of £X.”
Lady Hale quoted Lord Bingham of Cornhill, who in Attorney General’s Reference (No 2 of 2001)  UKHL 68;  2 AC 72, 92, said “I cannot accept that it can ever be proper for a court, whose purpose is to uphold, vindicate and apply the law, to act in a manner which a statute (here, section 6 of the Human Rights Act 1998) declares to be unlawful”.
On the question of whether any DHPs received by the appellant should be deducted from the housing benefit to which he is entitled as a result of the Supreme Court’s decision, the parties were agreed as to the position, Lady Hale said.
The appeal concerned the initial decision made by the local authority to make a deduction under regulation B13 to the appellant’s housing benefit. “The initial decision which is under appeal to this Court was made by the local authority on 5 March 2013, applying the size criteria which were to come into force on 1 April 2013. At that stage no question of DHPs could have arisen.”
Lady Hale said: “…Neither the initial decision-maker in the local authority, nor the FTT on appeal, nor the UT on appeal, was concerned with anything other than entitlement to housing benefit. They were not concerned with DHPs and had no power to take them into account.
“Indeed, the Secretary of State relied upon this fact to bolster the argument that an award of damages under section 8 of the HRA was a more appropriate remedy than applying section 6, because such an award could take DHPs into account. But we are concerned with whether the initial decision was correct and in my view it was not.”
The Supreme Court added that it was for the local authority to consider whether there were any steps which they could take to recover any DHPs and if there were, whether they wished to take them.
Lady Hale concluded by saying it followed that the Supreme Court should make the same order as the Upper Tribunal made in Carmichael UT for the same reason as the Upper Tribunal gave in that case.
Lucy Cadd, solicitor at law firm Leigh Day, who together with Carolin Ott represented Mr RR, said: “This ruling is of great significance because it not only allows for the case of our client and that of the 130 couples whose cases were stayed behind it to be resolved with the social security tribunals disapplying the bedroom tax to ensure none of those individuals suffer a human rights breach, but also because it paves the way for decision-makers to avoid human rights breaches in other areas.”
[This article was largely based on the Supreme Court’s press summary]