Secretary of State for Work and Pensions v Carmichael and Sefton BC (HB)  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  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  UKSC 58).”
The FTT’s effect of the FTT’s decision was right, even if its method of getting there was wrong.
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.