RR v Secretary of State for Work and Pensions [2019] UKSC 52

RR v Secretary of State for Work and Pensions [2019] UKSC 52 concerns the obligation of public authorities, courts and tribunals to disapply subordinate legislation that would breach Convention rights when calculating housing benefit, and marks an important clarification of the relationship between primary and subordinate legislation under the Human Rights Act 1998. The Supreme Court unanimously allowed the appeal, holding that decision-makers must calculate housing benefit without applying the “bedroom tax” deduction in cases where to do so would breach the claimant’s article 14 Convention rights, and that they need not account for any discretionary housing payments received.

Mr RR lived with his severely disabled partner in a two-bedroom social housing property for which he claimed housing benefit. The local authority, Sefton Borough Council, applied regulation B13 of the Housing Benefit Regulations 2006, which mandated a 14 per cent deduction in eligible rent where the number of bedrooms exceeded the size criteria set out in the regulation, on the ground that they were a couple entitled to one bedroom only. Mr RR appealed. The First-tier Tribunal found as a fact that the couple required separate bedrooms because of the partner’s disabilities and her need to accommodate medical equipment, and that Sefton accepted that Mr RR, as primary carer, needed to be able to get a night’s sleep. The First-tier Tribunal held that the regulation discriminated against him and attempted to read regulation B13(5)(a) under section 3(1) of the Human Rights Act 1998 so as to apply either to a couple or to one member of a couple who could not share a bedroom because of the disability of one of them.

The Secretary of State’s appeal to the Upper Tribunal was stayed pending the outcome of this Court’s decision in R (Carmichael) v Secretary of State for Work and Pensions [2016] UKSC 58; [2016] 1 WLR 4550. In that case, the Court had held that where there was a transparent medical need for an additional bedroom not catered for in regulation B13, there was unjustified discrimination on the ground of disability and thus a violation of article 14 read with article 8 of the European Convention on Human Rights. Mrs Carmichael could not share a bedroom with her husband because of her disabilities, and although the regulation catered for children who could not share a bedroom for that reason, it did not cater for a couple who could not do so. The Court granted a declaration that the claimant had suffered discrimination contrary to article 14. The regulation was subsequently amended with effect from 1 April 2017, but the amendments were not retrospective.

After the stay was lifted, the Upper Tribunal in Secretary of State for Work and Pensions v Carmichael [2017] UKUT 174 (AAC) held that the First-tier Tribunal’s reading of regulation B13(5)(a) was impermissible but nevertheless reached the same result by holding that Mr Carmichael’s housing benefit was to be calculated without making the 14 per cent deduction because to make it would be a clear breach of his Convention rights, contrary to section 6(1) of the Human Rights Act 1998. The Court of Appeal in Secretary of State for Work and Pensions v Carmichael [2018] EWCA Civ 548; [2018] 1 WLR 3429 allowed the Secretary of State’s appeal by a majority, holding that the Upper Tribunal did not have power to direct as it did, as this would amount to an impermissible rewording of the regulation; any remedy for the violation of Convention rights was to be found in an action for damages under section 8(2) of the Human Rights Act 1998. Leggatt LJ dissented on this point but agreed with the majority that the Upper Tribunal had erred in not taking into account the discretionary housing payments that Mr Carmichael had received.

The Upper Tribunal in the case of Mr RR accepted that it was bound by the Court of Appeal to allow the Secretary of State’s appeal, which it duly did, but granted a “leapfrog certificate” enabling Mr RR to appeal directly to the Supreme Court.

Mr Richard Drabble QC, for the appellant, argued that it was unlawful for the local authority, the First-tier Tribunal and the Upper Tribunal to apply the deduction mandated by regulation B13 in breach of the appellant’s Convention rights. Section 6(1) of the Human Rights Act 1998 provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right, and by virtue of section 6(3)(a) a “public authority” includes a court or tribunal. This would not be the case if the decision were mandated by primary legislation, but the regulation was not primary legislation and primary legislation did not require the regulation to take the form that it did. Under section 7(1)(b) of the Human Rights Act 1998, a person who claims that a public authority has acted unlawfully under section 6(1) may rely on the Convention right concerned in any legal proceedings. The authority and the tribunals should therefore have made an award of housing benefit without the 14 per cent reduction which was incompatible with the appellant’s Convention rights. Mr Drabble relied on Mathieson v Secretary of State for Work and Pensions [2015] UKSC 47; [2015] 1 WLR 3250, in which this Court held that the First-tier Tribunal should have allowed a child’s appeal against the suspension of disability living allowance during in-patient hospital treatment because the suspension in those circumstances was a violation of the child’s Convention rights and the Secretary of State was not obliged by any provision of primary legislation to suspend payment. Mr Drabble also relied on a number of other cases in which the courts had treated regulations as having no effect insofar as applying them would violate a claimant’s Convention rights, including Francis v Secretary of State for Work and Pensions [2005] EWCA Civ 1303; [2006] 1 WLR 3202, Burnip v Birmingham City Council [2012] EWCA Civ 629; [2013] PTSR 117, In re G (Adoption: Unmarried Couple) [2008] UKHL 38; [2009] AC 173, and JT v First-tier Tribunal [2018] EWCA Civ 1735; [2019] 1 WLR 1313.

Sir James Eadie QC, for the Secretary of State, accepted that the regulation was incompatible in the respects identified in Carmichael but argued that it could not be interpreted under section 3(1) of the Human Rights Act 1998 in a way which avoided that incompatibility. Rectifying the incompatibility would require rewriting the regulation, which could be done in a variety of ways, and it was not for the local authority or the tribunals to redesign the legislative scheme so as to render it compatible with the Convention rights. That would be constitutionally inappropriate and outside their statutory powers. Mathieson did not represent a consistent line of authority that incompatible provisions in subordinate legislation could simply be ignored; it was a case in which a specific finding was made that could be dealt with as an individual case, not a structural problem as in this case. To allow the tribunals to disapply the regulation would be to cut across the provisions of the Human Rights Act 1998 relating to damages. Section 8(2) provides that damages may be awarded only by a court which has power to award damages, or to order payment of compensation, in civil proceedings. Making an award of housing benefit without the deduction would be tantamount to making an award of damages or compensation which the tribunals have no power to do. The correct remedy was therefore a free-standing application under section 7(1)(a) of the Human Rights Act 1998 to a court which does have power to award damages.

Lady Hale, with whom the rest of the Court agreed, rejected the arguments of the Secretary of State and allowed the appeal. There was 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 was necessary in order to comply with the Human Rights Act 1998. Subordinate legislation was subordinate to the requirements of an Act of Parliament, and the Human Rights Act 1998 was an Act of Parliament whose requirements were clear. The Act drew a clear and careful distinction between primary and subordinate legislation, as shown by the provisions of sections 6(1), 6(2) and 3(2). The obligation in section 6(1) was subject to the exception in section 6(2), but this only applied to acts which were required by primary legislation. If it had been intended to disapply the obligation in section 6(1) to acts which were required by subordinate legislation, the Act would have said so. Under section 3(2), 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 prevented 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 Act would have said so.

Mathieson was not a “one off”, Lady Hale held. 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. There might be cases where it was not possible to do so, because it was not clear how the statutory scheme could be applied without the offending provision. But that was not the case here. There was no legislative choice to be exercised. Where discrimination had been found, a legislator might choose between levelling up and levelling down, but a decision-maker could only level up: if claimant A was entitled to housing benefit of £X and claimant B was only entitled to housing benefit of £X-Y, and the difference in treatment was unjustifiably discriminatory, the decision-maker must find that claimant B was also entitled to benefit of £X. As Lord Bingham of Cornhill had put it in Attorney General’s Reference (No 2 of 2001) [2003] UKHL 68; [2004] 2 AC 72, “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 discretionary housing payments received by the appellant should be deducted from the housing benefit to which he was entitled, Lady Hale held that they should not. The parties were agreed as to the position. The task of the First-tier Tribunal was to decide whether the local authority’s initial decision was correct. In deciding a housing benefit appeal, the First-tier Tribunal was not permitted to take into account any circumstances not obtaining at the time when the decision appealed against was made. Thus, neither the initial decision-maker in the local authority, nor the First-tier Tribunal on appeal, nor the Upper Tribunal on appeal, was concerned with anything other than entitlement to housing benefit. They were not concerned with discretionary housing payments and had no power to take them into account. The initial decision was not correct. It was for the local authority to consider whether there were any steps which they could take to recover any discretionary housing payments and if there were whether they wished to take them.

In short, subordinate legislation which would cause a public authority to act incompatibly with Convention rights must be disapplied in individual cases where this is necessary to comply with section 6(1) of the Human Rights Act 1998, and the remedy is that the decision-maker must calculate the benefit as if the incompatible provision did not exist.

R (Carmichael) v Secretary of State for Work and Pensions [2016] UKSC 58; [2016] 1 WLR 4550
R (Rutherford) v Secretary of State for Work and Pensions [2016] EWCA Civ 29; [2016] HLR 8
Pensions v Carmichael [2017] UKUT 174
Pensions v Carmichael [2018] EWCA Civ 548; [2018] 1 WLR 3429
Pensions v RR and Sefton Bo rough Council [2018] UKUT 3
Burnip v Birmingham City Council [2012] EWCA Civ 629; [2013] PTSR 117
Francis v Secretary of State for Work and Pensions [2005] EWCA Civ 1303; [2006] 1 WLR 3202
JT v First Tier Tribunal [2018] EWCA Civ 1735, [2019] 1 WLR 1313
AG Ref No. 2 of 2001 [2003] UKHL 68; [2004] 1 Cr App R 25
Attorney General’s Reference (no.2 of 2001) [2004] 2 AC 72
Mathieson v Secretary of State for Work and Pensions [2015] UKSC 47

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