RR v SSWP  UKSC 52
ECHR and subordinate legislation (1) 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 Human Rights Act 1998. (2) On the facts of this case, the public authority should disobey Regulation B13 of the Housing Benefit Regulations 2006 and retrospectively apply the Supreme Court's decision in R (Carmichael) v SSWP ! that the "bedroom tax" was an unjustified discrimination on the ground of disability where there was a transparent medical need for an additional bedroom.
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RR v Secretary of State for Work and Pensions (Equality and Human Rights Commission and others intervening)
2019 July 3; Nov 13
Baroness Hale of Richmond PSC, Lord Reed DPSC, Lady Black, Lord Briggs, Lady Arden JJSC
Human rights— Breach of Convention rights— Remedy— Supreme Court in judicial review proceedings declaring regulation in subordinate legislation concerning benefit entitlement to be in breach of individual’s Convention rights— Regulation amended but not retrospectively— Whether “public authority” able to disapply regulation to claims for periods before amendment taking so as to avoid breach of Convention rights— Human Rights Act 1998 (c 42), s 6(1)
Social security— Housing benefit— Assessment— Secretary of State introducing regulation reducing housing benefit payable to public sector tenants where deemed under-occupancy save in specified classes of persons— Regulation requiring couples to share bedroom— Couple living in two-bedroomed social sector property unable to share bedroom due to disabilities— Supreme Court in unrelated proceedings declaring unjustified discrimination and breach of Convention rights where transparent medical need for additional bedroom not catered for in regulation— Regulation amended to include member of couple unable to share bedroom— Amendment not retrospective— Whether “public authority” able to disapply regulation and calculate housing benefit without making deduction so as to avoid breach of Convention rights— Whether account to be taken of discretionary housing payments received by claimant— Human Rights Act 1998 (c 42), s 6 — Housing Benefit Regulations 2006 (SI 2006/213), reg B13 (as inserted by Housing Benefit (Amendment) Regulations 2012 (SI 2012/3040), reg 5(7) and amended by Housing Benefit (Amendment) Regulations 2013 (SI 2013/665), reg 2(3), Housing Benefit and Universal Credit (Size Criteria) (Miscellaneous Amendments) Regulations 2013 (SI 2013/2828), reg 2(3) and Housing Benefit and Universal Credit (Size Criteria) (Miscellaneous Amendments) Regulations 2017 (SI 2017/213), reg 4(3)(a)(i))
By amendments introduced by the Housing Benefit (Amendment) Regulations 2012, regulation B13 was inserted into the Housing Benefit Regulations 2006 which required a percentage reduction in the eligible rent for social sector housing if the number of bedrooms in the property exceeded the number defined by regulation B13(5) as appropriate for the size of the household living there. In 2012 the local authority, applying regulation B13, decided that, since the claimant and his severely disabled partner, who lived together in two-bedroomed rented social sector accommodation for which he claimed housing benefit, were a couple they were entitled to one bedroom only, pursuant to regulation B13(5)(a), and applied the discount required by regulation B13(3)(a). Allowing the claimant’s appeal, the First-tier Tribunal, having found as a fact that the claimant and his partner needed separate bedrooms because of his partner’s disabilities and the need to accommodate medical equipment and supplies, concluded that he had suffered unjustified discrimination and that, applying section 3(1) of the Human Rights Act 1998, regulation B13(5)(a) should be read so as to apply either to a couple or one member of a couple who could not share a bedroom because of the disability of one of them. The Secretary of State’s application for permission to appeal was stayed pending an appeal in unrelated judicial review proceedings in which the Supreme Court held that where there was a transparent medical need for an additional bedroom which was not catered for in regulation B13(5)(6) there was unjustified discrimination on the ground of disability and violation of that claimant’s rights under article 14 read with article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, and granted a declaration that the claimant had suffered discrimination contrary to article 14. As a result in 2017 further categories were added, without retrospective effect, to regulation B13(5)(6), including a member of a couple who could not share a bedroom. Subsequently, in similar proceedings, the Upper Tribunal decided that a claimant’s housing benefit claim, relating to periods before the 2017 amendment, was to be recalculated without making the deduction required by regulation B13(3)(a) because to make it would be a clear breach of his Convention rights, contrary to section 6(1) of the Human Rights Act 1998. In that case the Court of Appeal allowed the Secretary of State’s appeal, with the majority holding that a statutory decision-maker had no such power to disapply regulation B13 so as to avoid a breach of Convention rights, any remedy for such breach being an action for damages under section 8(2) of the 1998 Act. In the present case, the Upper Tribunal lifted the stay and allowed the Secretary of State’s appeal on the basis that it was bound by the majority’s reasoning of the Court of Appeal in that case. A certificate was granted under section 14A of the Tribunals, Courts and Enforcement Act 2007, as inserted, and the claimant appealed directly to the Supreme Court, contending that under the obligation in section 6(1) of the 1998 Act it was unlawful for a public authority, which by section 6(3)(a) of the Act included a court or tribunal, to apply the deduction required by regulation B13(2)(b)(3), which was neither contained in nor mandated by primary legislation, in breach of the claimant’s Convention rights, in respect of housing benefit claims relating to periods before regulation B13 was amended and therefore it was unlawful for a public authority to make or uphold an award which was incompatible with the claimant’s Convention rights. The parties agreed that if the claimant’s housing benefit entitlement was to be re-calculated without the deduction, any discretionary housing payments received by him during the relevant period were not to be taken into account.
On the claimant’s appeal—
Held, appeal allowed. Subordinate legislation was subordinate to an Act of Parliament. The Human Rights Act 1998, which drew a clear and careful distinction between primary and subordinate legislation, provided by section 6(1) that it was unlawful for a public authority to act in a way which was incompatible with a Convention right. The exception in section 6(2), disapplying the obligation in section 6(1) to acts which were required by primary legislation, did not apply to acts which were required by subordinate legislation. Further, the courts had consistently held that a provision of subordinate legislation which resulted in a breach of a Convention right must be disregarded where it was possible to do so, such as where it was clear how the statutory scheme could be applied without the offending provision. Therefore, it was not unconstitutional for a public authority, court or tribunal, to disapply a provision of subordinate legislation which would otherwise result in their acting incompatibly with a Convention right, where to do so was necessary in order to comply with the 1998 Act. Accordingly, since, in the present case, if the tribunal or local authority were to apply the deduction required by regulation B13(2)(b) there would be a clear breach of the claimant’s Convention rights, contrary to section 6(1) of the 1998 Act, the claimant’s housing benefit for the relevant period was to be re-calculated without making the deduction. Further, any discretionary housing payments received by the claimant during the relevant period were not to be deducted from his housing benefit entitlement because they were not in issue when the local authority made its initial decision as to his housing benefit entitlement and therefore neither the First-tier Tribunal, under paragraph 6(9) of Schedule 7 to the Child Support, Pensions and Social Security Act 2000, nor the Upper Tribunal, under section 12(4) of the Tribunals, Courts and Enforcement Act 2007, had the power to take them into account (paras 27, 29–30, 34–35).
Francis v Secretary of State for Work and Pensions!, CA, In re G (Adoption: Unmarried Couple) !, HL(NI), Burnip v Birmingham City Council  PTSR 117, CA, Mathieson v Secretary of State for Work and Pensions !, SC(E), R (MA) v Secretary of State for Work and Pensions (Equality and Human Rights Commission intervening) !, SC(E) and JT v First-tier Tribunal (Social Entitlement Chamber) (Equality and Human Rights Commission intervening) !, CA considered.
Secretary of State for Work and Pensions v Carmichael!, CA overruled.
Decision of the Upper Tribunal! reversed.
Richard Drabble QC and Matthew Fraser (instructed by Leigh Day) for the claimant.
Sir James Eadie QC and Edward Brown (instructed by Treasury Solicitor) for the Secretary of State.
Dan Squires QC and Chris Buttler (instructed by Solicitor, Equality and Human Rights Commission, Manchester) for the Equality and Human Rights Commission, intervening.
Martin Chamberlain QC, Tom Royston and Jennifer MacLeod (instructed by Herbert Smith Freehills llp) for Liberty, Child Poverty Action Group and Public Law Project, intervening.
Reported by: Nicola Berridge, Solicitor
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