The Tribunal unleashed

Secretary of State for Work and Pensions v Carmichael and Sefton BC (HB) [2017] UKUT 0174 (AAC)

Oh my. This was the DWP’s appeal to the Upper Tribunal of the First Tier Tribunal’s decision on the Carmichael’s bedroom tax appeal (our report here). It was initially surprising that the DWP sought to pursue this appeal, given that in the meantime, the Supreme Court had found that the bedroom tax regulations were a breach of the Carmichaels’ human rights under article 14 (discrimination) with Art 1 Protocol 1 (our report here). But it soon became clear that the DWP’s target was not the Carmichaels per se (they had had DHP and the DWP was going to have to change the regulations to remove their bedroom tax). It was instead the FTT decisions in general that had ‘read the regulations so as to comply with human rights’, by effectively adding new clauses.

In the Carmichael’s FTT, the tribunal had effectively added words to reg B13(5)(a) – as italicised:

“(a) a couple (within the meaning of Part 7 of the Act) or one member of a couple who is unable to share a bedroom because of his or her disability or the disability of the other member of that couple”.

A number of FTTs have made similar attempts to ‘interpret’ the bedroom tax regulations in a human rights compatible manner, under Human Rights Act s.3(1) , but by adding words, many words, to them. I have previously expressed my doubts about the validity of this, as being beyond the bounds of ‘interpretation’, and sure enough, this was the DWP’s line of attack – the Tribunal could not do this.

The Upper Tribunal agreed – the FTT decision had indeed involved an error of law and, as the Supreme Court decision showed, Reg B13 could not be read in a manner compatible with the Carmichael’s human rights. It was, quite simply, unlawfully discriminatory.

So far so good for the DWP. But the Carmichaels, via Richard Drabble QC, had a fresh argument as to what the FTT could and should have done, to which I’ll come back in a moment.

The DWP position was, therefore, that the FTT decision was wrong. Moreover, even after the Supreme Court decision (and before the revised regulations were brought in, some 4 months later), the only remedy that someone in the Carmichaels’ position would have would be a free standing Human Rights Act claim for damages for the breach. On what the FTT could do about an apparent human rights breach in the regulations (or indeed any benefit regulations that were not primary legislation), the DWP’s position was, well, the FTT could do nothing, except apply the regulations.

The Upper Tribunal was clearly not impressed with this line of argument. Instead, it turned to the Carmichael’s argument, following on from the Supreme Court decision in Mathieson v Secretary of State for Work and Pensions [2015] UKSC 47. This was a human rights challenge to a  suspension of DLA case, but the part focused upon was the question of the remedies available to the FTT. At para 48-49 of Mathieson, Lord Wilson says ( in the lead judgment):

I conclude therefore that:
(a) by his decision dated 3 November 2010 to suspend payment of DLA to Cameron, the Secretary of State violated his human rights under article 14 of the Convention when taken with A1P1;
(b) there is therefore no need to consider whether he also violated Cameron’s human rights under article 14 when taken with article 8;
(c) in that the Secretary of State was not obliged by any provision of primary legislation to suspend the payment, he acted unlawfully in making the decision dated 3 November 2010: section 6(1) and (2) of the Human Rights Act 1998 (“the 1998 Act”);
(d) accordingly the First-tier Tribunal should have allowed Cameron’s appeal against that decision; should have set it aside; and, if only for the sake of clarity, should have substituted a decision that Cameron was entitled to continued payment of DLA with effect from 6 October 2010 to the date from which payment of it was reinstated; and
(e) this court should allow Cameron’s appeal and make the orders at (d) which the First-tier Tribunal should have made.

Mr Mathieson seeks further relief which the Secretary of State energetically opposes. First, he seeks a formal declaration that the Secretary of State violated Cameron’s human rights. The First-tier Tribunal had no power to make a formal declaration and it appears that, by virtue of sections 12(4) and 14(4) of the Tribunals, Courts and Enforcement Act 2007, the jurisdiction of the Upper Tribunal and of the Court of Appeal in relation to Mr Mathieson’s successive appeals was no wider than that of the First-tier Tribunal. It may well be that this court is not similarly confined but a formal declaration would seem to add nothing to the conclusions articulated in (a) and (c) of para 48 above. Second, more controversially, Mr Mathieson asks this court to discharge its interpretative obligation under section 3 of the 1998 Act by somehow reading the provisions for suspension of payment of DLA in regulations 8(1) and 12A(1) of the 1991 Regulations so as not to apply to children. In my view however it is impossible to read them in that way.

Further in both Mathieson and in Burnip/Gorry (both appeals from tribunals, not JRs), the DWP had issued guidance which took the determination of the court as decisive prior to a (later) amending of the regulations.

The Upper Tribunal decided:

i) the Tribunal was itself a public body, bound under section 6 Human Rights Act to act in a convention compatible way.
ii) It was not possible to read regulation B13 in a convention compatible way in this case.
iii) The tribunals did not have the statutory power to make a declaration of incompatibility
iv) Following Mathieson, where the relevant regulations were secondary legislation and the Secretary of State was not bound by primary legislation to make such rules (or local authority bound by primary legislation to follow them), it was possible, indeed necessary for the First Tier Tribunal (or Upper Tribunal) to ‘not give effect’ to the regulations

We conclude that in such cases, and in the light of Mathieson and similar authorities discussed below, courts and tribunals ultimately have the power to determine and so order or direct that to the extent that subordinate legislation is incompatible with a person’s Convention rights it should not be given effect to in determining the person’s lawful entitlement, or should be otherwise applied or disapplied in a way that does not breach the person’s Convention rights. In our judgment that is a “relief or remedy” which a court or tribunal may make “within its powers as it considers just and appropriate” under section 8(1) of the 1998 Act.

The Decision was remade by the Upper Tribunal as follows

“1. Mr Carmichael’s appeal against Sefton Council’s decision dated March 5, 2013 is allowed.
2. Mr Carmichael’s housing benefit entitlement is to be recalculated without making the under-occupancy deduction of 14%.
3. The reason for so directing is that if the Tribunal or the Council were to apply this deduction there would be a clear breach of Mr (or Mrs) Carmichael’s Convention rights, contrary to section 6(1) of the Human Rights Act 1998 (R (on the application of Carmichael and Rourke) (formerly known as MA and others) v Secretary of State for Work and Pensions [2016] UKSC 58).”

The FTT’s effect of the FTT’s decision was right, even if its method of getting there was wrong.

Comment

Utterly unsurprisingly, the DWP have announced their intention to go to the court of appeal on the same day the UT decision was released. Faced with this, I would have expected them to.

The DWP might have thought they were seeking to close off one form of FTT decision rejecting bedroom tax decisions, but the result has been an Upper Tribunal decision opening up a whole fresh set of powers for the FTT, not just on the bedroom tax but across a whole range of benefit related secondary legislation.

Where a tribunal finds that the operation of such secondary legislation results in a breach of human rights, it can disapply or ‘not give effect’ to the relevant part of those regulations so as to avoid the breach.

This, surely, is a horrible prospect for the DWP…

Whether this decision will survive a trip to the Court of Appeal (or indeed beyond) we will have to see. For now, at least, the FTT (SS&CS) has this power.

And though this will thankfully no longer affect them personally, in this decision or in any further appeal, the Carmichaels’ courage and determination has now resulted in not one but two important decisions.

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London.
You can find him on Linkedin and on
Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.

Posted in assured-tenancy, Benefits, Housing law - All, secure-tenancy and tagged , , .

20 Comments

  1. How could the DWP believe and argue that the First-tier Tribunal (Social ENTITLEMENT Chamber) to give its full title could not give entitlement as remedy?! Regardless of jurisdiction point, secondary legislation etc, its name is Ronseal!

    • Well the jurisdiction and powers issue IS the important point. If tribunal doesn’t have that power, then it can’t. And the point that the tribunal is a creature of statute (unlike say the High Court) is an issue – can only exercise powers given to it by statute. You can’t just dismiss these issues as they are valid.

      For example, if the bedroom tax regulations had been primary legislation, the tribunal would have no power to disapply, absolutely none.

      That is why this is a very significant decision….

  2. So if the CoA hear and overturn on this point there is no purpose to the First-tier Tribunal in ALL social security benefit appeals as it cannot give remedy, that is correct entitlement, where there is secondary legislation? How many UC SI’s are issued almost by the day?! How many primary welfare benefit Acts give huge powers to SSWP to issue SIs? There will be no point in having ANY social security benefit tribunals at all and this will apply to all social security benefits not just housing benefit.

    This is much more than a power struggle between UT and SSWP, it is SSWP being despotic

    • The issue will be can the FTT disapply the regulations where there would be a breach of human rights resulting from them being applied.

      The job of the FTT, according to the DWP’s argument, is to determine whether the regulations have been correctly applied in the individual case and on the individual facts. Of course there would still be remedy, if the benefit decision was wrong.

      This is indeed the DWP seeking to limit what the FTT can do – but what happened in this UT decision was that the UT asserted that the FTT had a power that nobody had previously thought it had.

  3. I would phrase your last sentence differently. The UT has found authorities as perhaps a ‘device’ to allow this and Mathieson is a tribunal case too, so it is not a case of not being previously thought, only that FtT denied it then but Supreme Court overturned that and said that tribunals (see para 45 referring to 48(d)) did have that right

    • Yes, it all rests on the Mathieson paragraphs. Not previously though before that – and not something that any FTT has done on the bedroom tax to date, as far as I know. They all went the ‘interpreting’ route, presumably on the basis that they didn’t think the had the power to disapply either.

      I do actually quote the relevant Mathieson paras above ;-)

  4. Complex!! … and we can now all see why DWP went to UT over this!!

    The FtTs do have pretty broad powers under their constitution and “overriding objective” and one concern is if DWP allowed in and overturn they will have to totally rip up and rewrite this constitution stating what they cannot do and could open the door to many tribunal decisions retrospectively. Hoping the historic reluctance of CoA to interfere with the specialist nature of these esoteric tribunals will prevail and not happen else the proverbial could hit the fan and DWP end up creating a monster

    • Oh it is going to be very. very interesting. DWP can’t write the FTT’s role – that is an MoJ and Parliament issue – and of course this goes beyond that benefit FTTs – impacts all the other Tribunals too.

  5. Why can’t you make the case that counting bedrooms is fundamentally illogical? Most countries think of properties in term of square metres or feet. What about kitchen size, dining space, storage, garden shed, garage etc? All the bedroom tax considers is the number of walls in a property – should be renamed the “internal wall tax”. In fact, one local council did take the approach of removing internal walls to help their tenants.

    • Because that is how the regulations work. There is no legal requirement that regulations, or primary legislation, actually be logical.

  6. DWP confirms that the UT has suspended its adverse finding pending a possible appeal https://www.gov.uk/government/publications/hb-bulletin-u12017-upper-tribunal-decision-concerning-spare-room-subsidy “6. The Department is seeking to appeal this decision to the Court of Appeal in relation to the specific jurisdiction point raised. However, pending the appeal, the Upper Tribunal has suspended the effect of this decision: this means that the decision has no effect in law. We therefore advise that no action is taken at present. We will issue further guidance in due course.”

  7. Which reads:

    Judicial Summary

    Regulation B13 (‘bedroom tax’ or ’spare room subsidy’) – claimant and disabled wife unable to share same bedroom owing to wife’s disability needs; FTT should have directed local authority to calculate the claimant’s housing benefit entitlement without making a deduction of 14% for under occupancy (to avoid an unlawful breach of Mr & Mrs Carmichael’s ECHR art 14 rights (following R (Carmichael and Rourke) (formerly MA and others) v SSWP [2016] UKSC 58.

    Courts and tribunals have power to determine and so direct that, to the extent that subordinate legislation is incompatible with a person’s Convention rights, it should not be given effect to in determining the person’s lawful entitlement (or should be otherwise applied or disapplied in a way that does not breach the person’s Convention rights): Mathieson v Secretary of State for Work and Pensions [2015] UKSC 47 applied.

    An application by the Secretary of State for Work and Pensions for permission to appeal against this decision was refused by the Upper Tribunal. The Secretary of State has the right to renew that application for permission to appeal before the Court of Appeal. Subject to further order by the Upper Tribunal or the Court of Appeal the effect of the Upper Tribunal’s Decision is suspended for 28 days from 27 April 2017.

  8. U1 issued 2 May so drafted 1 May saying seeking to…

    Decision of UT on refusal of permission (and somewhat weird application to suspend possibility) dated and issued on 3 May two days later???

  9. The U1 guidance is factually incorrect at 4 when it says “The tribunal did not consider any issue in relation to local authority decision makers… when it clearly did consider and concern the at paras 11, 52, 56 and 70 … so surprise surprise the DWP are clearly incorrect again and factually misleading local authorities once more!!

    • 70. is key on decision makers. The other mentions aren’t of any importance. But 70 and 71 offer two ways of reaching same conclusion, but only one of them would be an issue for decision makers – the other would be FTT only. The UT does not decide between the two. Another dangling issue…

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