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RR v Secretary of State for Work and Pensions - (13 Nov 2019)

A provision of subordinate legislation which results in a breach of a Convention right must be disregarded, if it is possible to do so without affecting the statutory scheme


On 9 November 2016, present Court handed down judgment in the series of cases collectively reported as R (Carmichael) v Secretary of State for Work and Pensions (“Carmichael (SC)”). This was a judicial review of the regulations governing the removal of the spare room subsidy, otherwise known as the “bedroom tax”. Regulation B13 of the Housing Benefit Regulations 2006 (first introduced in 2013) 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) and (6) as appropriate for the size of the household living there. This Court held that where there was “a transparent medical need for an additional bedroom” not catered for in regulation B13(5) and (6) there was unjustified discrimination on the ground of disability and thus a violation of the claimant’s rights under article 14 read with article 8 of the European Convention on Human Rights.

The principal issue in present case is the effect of this Court’s decision in Carmichael (SC) upon the decision-makers in the housing benefit system - the local authorities, responsible for the payment of housing benefit, and the First-tier Tribunal (“FTT”) and the Upper Tribunal (“UT”) hearing appeals from local authority decisions - in claims relating to periods before the regulations were amended. Do they have to carry on applying the regulation in its original form? Or do they have to calculate housing benefit without making the percentage deduction in cases where to do so will breach the Convention rights of the claimants in the way determined in the Carmichael and Rutherford cases.

A secondary issue is whether, if the housing benefit is to be calculated without the percentage deduction in such cases, account should be taken of any discretionary housing payments (“DHPs”) received by the claimant during the period in question.

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 HRA draws a clear and careful distinction between primary and subordinate legislation. This is shown, not only by the provisions of section 6(1) and 6(2) of Human Rights Act, 1998 which have already been referred to, but also by the provisions of section 3(2). The Courts have consistently held that, where it is possible to do so, a provision of subordinate legislation which results in a breach of a Convention right must be disregarded, if it is possible to do so without affecting the statutory scheme.

The obligation in Section 6(1), not to act in a way which is incompatible with a Convention right, is subject to the exception in Section 6(2). But this only applies to acts which are required by primary legislation. If it had been intended to disapply the obligation in section 6(1) to acts which are required by subordinate legislation, the HRA would have said so. Again, under section 3(2), primary legislation which cannot 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.

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. It is for the local authority to consider whether there are any steps which they can take to recover any DHPs and if there are whether they wish to take them.

The appeal against the local authority’s decision of 5 March 2013 is allowed. RR’s housing benefit entitlement is to be recalculated without making the under-occupancy deduction of 14%. The reason for doing so is the same as that, which the UT gave: “if the tribunal or the council were to apply this deduction, there would be a clear breach of [RR’s] Convention rights, contrary to Section 6(1) of Act, 1998 (R (Carmichael) v Secretary of State for Work and Pensions.” Appeal allowed.


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