RR v Secretary of State for Work and Pensions (2019) UKSC 52

The question of the powers of the First Tier and Upper Tribunals (and indeed initial decision makers) to disapply secondary legislation where there is a breach of the appellant’s human rights has reached the Supreme Court. The decision has some far reaching implications for bedroom tax appeals and beyond.

The issue was that, following the Supreme Court decision in November 2016 on Mr Carmichael’s appeal in MA & Ors, R (on the application of) v The Secretary of State for Work and Pensions[2016] UKSC 58 (our note), where disability discrimination under Art 14 had been found in Regulation B13 (the bedroom tax regulation) in respect of people where there was clear medical need for an additional bedroom, the government had made amended regulations in March 2017. But the DWP insisted that they did not have retrospective effect, so only counted for HB claims after that date.

There were already some 130 other ‘Carmichael’ kind of appeals in the First Tier Tribunal. These were all stayed, while  Mr Carmichael’s own case (for it was not enough that he had had to go to the Supreme Court) progressed through the Tribunals. We noted here the Upper Tribunal’s decision that it had the power to find that secondary legislation was of no effect where and to the precise extent that it involved a breach of human rights.

Of course, the SSWP appealed. The Court of Appeal (our note here) held that the Tribunals had no such power to disapply secondary legislation and had to give effect to the Regulations. And so to the Supreme Court. Not, however this time on behalf of Mr Carmichael. Entirely understandably, given the many years he had spent fighting these cases, the family’s personal circumstances and that their personal position had been secured by DHPs (after yet another long legal struggle), Mr Carmichael understandably declined to take his case forward.

(On a personal note, I have to salute Jayson Carmichael’s courage over many years in bringing these cases, despite the care and support needs of his family. He has had excellent legal representation, but no-one should underestimate the time, commitment and dedication required for a person to pursue the most challenging of litigation. He has kept at it despite the personal cost and even after his own position was secured by long term DHPs, for the benefit of others. He is a hero.)

Instead, an Upper Tribunal case of RR (a ‘Carmichael’ case) was leapfrogged to the Supreme Court on this issue of the Tribunal’s powers.

A five Judge Supreme Court unanimously (briefly and very firmly) decided for RR (at 27-29).

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) which have already been referred to, but also by the provisions of section 3(2). This provides that the interpretative obligation in section 3(1):

“(a)     applies to primary and subordinate legislation whenever enacted;

(b)       does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and

(c)       does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents the removal of the incompatibility.”

Once again, a clear distinction is drawn between primary and subordinate legislation.

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. 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 HRA would have said so.

The statutory scheme could clearly be applied without the offending provision in this case. The decision facing the decision maker (or tribunal) was clear (para 30)

where discrimination has been found, a legislator may choose between levelling up and levelling down, but a decision-maker can only level up: if claimant A is entitled to housing benefit of £X and claimant B is only entitled to housing benefit of £X-Y, and the difference in treatment is unjustifiably discriminatory, the decision-maker must find that claimant B is also entitled to benefit of £X.

The issue raised of DHPs paid in the meantime, was, in effect, a red herring. The initial LA decision maker, and the Tribunal (FTT or UT), could only be concerned witht he situation at the time the decision was made. Thus

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. But we are concerned with whether the initial decision was correct and in my view it was not. 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.

Appealed allowed.

Comment

Well now. We commented at the time of the Carmichael Upper Tribunal decision

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…

And so it has come to pass. This is a very significant decision, impacting not only first instance benefit decision makers, but extending the powers of the FTT and Upper Tribunal. This will have ramifications that will be explored for quite some time.

Also, the lesson is ‘don’t try to short change the Supreme Court on an adverse finding’.