RR v Secretary of State for Work and Pensions [2019] UKSC 52

RR's housing benefit was reduced under the 'bedroom tax' despite his disabled partner needing a separate bedroom. The Supreme Court held that public authorities and tribunals must disapply subordinate legislation where applying it would breach Convention rights under the Human Rights Act 1998.

Facts

The appellant, RR, lived with his severely disabled partner in a two-bedroom social housing property and claimed housing benefit. Sefton Borough Council applied regulation B13 of the Housing Benefit Regulations 2006 (the ‘bedroom tax’ or spare room subsidy removal) and reduced his eligible rent by 14% on the basis that, as a couple, they were entitled to only one bedroom. The First-tier Tribunal (FTT) found as a fact that RR and his partner required separate bedrooms because of her disabilities and the need to accommodate medical equipment, and that RR, as her primary carer, needed to sleep undisturbed.

In R (Carmichael) v Secretary of State for Work and Pensions [2016] UKSC 58, the Supreme Court had already held that regulation B13 produced unjustified disability discrimination contrary to article 14 read with article 8 ECHR where there was a transparent medical need for an additional bedroom not catered for by the regulation (for couples unable to share, and for children needing overnight care). The regulation was amended in 2017, but not retrospectively.

In Carmichael (CA) [2018] EWCA Civ 548, the majority of the Court of Appeal held that the Upper Tribunal had no power to disapply the 14% deduction and that the only remedy was damages under section 8 HRA. RR’s case was stayed behind that appeal. The Upper Tribunal, bound by the Court of Appeal, allowed the Secretary of State’s appeal, and RR leapfrogged to the Supreme Court.

Issues

The principal issue was whether local authorities, the FTT and the UT, when calculating housing benefit for periods before regulation B13 was amended, must continue to apply the regulation in its unamended form, or whether they must instead calculate housing benefit without the percentage deduction in cases where applying it would breach the claimant’s Convention rights, as established in Carmichael and Rutherford.

A secondary issue was whether, if the deduction was to be disregarded, any discretionary housing payments (DHPs) received by the claimant during the relevant period should be offset against the recalculated entitlement.

Arguments

Appellant

Mr Drabble QC, for RR, did not argue that regulation B13 was ultra vires. He submitted that, under section 6(1) HRA, it is unlawful for a public authority, including a court or tribunal (section 6(3)(a)), to act incompatibly with a Convention right. Section 6(2) did not apply because the regulation was not primary legislation and no primary legislation required the incompatibility. By section 7(1)(b) HRA, the appellant could rely on his Convention rights in the tribunal proceedings. He relied on Mathieson, Francis, Burnip, In re G, and JT as a consistent line of authority that subordinate legislation must be disapplied where applying it would breach Convention rights.

Respondent

Sir James Eadie QC, for the Secretary of State, accepted the incompatibility but argued that rectifying it required rewriting the regulation, which could be done in multiple ways, and that it would be constitutionally inappropriate for local authorities or tribunals to redesign the scheme. He argued Mathieson was a one-off and that the correct remedy was a free-standing claim for damages under sections 7(1)(a) and 8 HRA, because disapplying the deduction was tantamount to an award of damages which tribunals had no power to make.

Judgment

The Supreme Court unanimously allowed the appeal, holding that Leggatt LJ’s dissent in Carmichael (CA) was correct. Lady Hale held that there is nothing unconstitutional about a public authority, court or tribunal disapplying a provision of subordinate legislation where applying it would result in acting incompatibly with a Convention right. Subordinate legislation is subordinate to the requirements of an Act of Parliament, and the HRA is such an Act.

The Court examined the structure of the HRA: section 6(1) imposes the duty not to act incompatibly; section 6(2) exempts only acts required by primary legislation; and section 3(2) carefully distinguishes primary and subordinate legislation, preserving incompatible subordinate legislation only where primary legislation prevents removal of the incompatibility. Had Parliament intended section 6(1) not to apply to acts required by subordinate legislation, or to preserve incurably incompatible subordinate legislation where primary legislation did not prevent cure, it would have said so.

The Court rejected the Secretary of State’s argument that Mathieson was exceptional. Francis, Burnip, Gorry, In re G, Mathieson, and JT all demonstrated that where possible, subordinate legislation producing a Convention breach must be disregarded. Here there was no legislative choice to be made: housing benefit could simply be calculated without the 14% deduction, placing RR in the same position as the claimants in Burnip and Gorry. As Dan Squires QC put it for the EHRC, a legislator may choose between levelling up and levelling down, but a decision-maker can only level up.

Lady Hale cited Lord Bingham in Attorney General’s Reference (No 2 of 2001):

I cannot accept that it can ever be proper for a court, whose purpose is to uphold, vindicate and apply the law, to act in a manner which a statute (here, section 6 of the Human Rights Act 1998) declares to be unlawful.

On the secondary issue, the Court held that DHPs were irrelevant to the recalculation. The initial decision was made on 5 March 2013, before any DHPs could arise. By paragraph 6(9) of Schedule 7 to the Child Support, Pensions and Social Security Act 2000, the FTT could not take into account circumstances not obtaining at the time of the decision under appeal, and the UT’s powers under section 12(4) of the Tribunals, Courts and Enforcement Act 2007 were similarly constrained. It was for the local authority to consider any steps available to recover DHPs.

The Court made the same order as the UT had made in Carmichael (UT): the appeal against the local authority’s decision was allowed and housing benefit was to be recalculated without the 14% deduction.

Implications

The decision authoritatively confirms that, where a provision of subordinate legislation would produce a breach of Convention rights in an individual case, and primary legislation does not mandate that incompatibility, public authorities, courts and tribunals must disapply the offending provision under section 6(1) HRA. This applies equally to front-line decision-makers such as local authorities and to statutory appellate tribunals such as the FTT and UT, not only to the higher courts.

The ruling matters particularly to claimants of welfare benefits governed by regulations who have suffered Convention-incompatible treatment: they may vindicate their rights through the ordinary statutory appeal process rather than being confined to free-standing HRA damages claims. It also matters to local authorities and tribunals, who must now address Convention arguments directly when determining entitlement under subordinate legislation.

The Court expressly noted limits. Disapplication is only appropriate where it is possible to apply the statutory scheme without the offending provision; where curing the incompatibility would require a legislative choice between different solutions, disapplication may not be available. The Court also flagged, without deciding, that the position for private-sector tenants under regulation 13D was not before it. Finally, the case does not authorise tribunals to rewrite regulations or to make awards of damages; it permits only the disregard of incompatible provisions so that the underlying statutory entitlement can be applied compatibly with Convention rights.

More broadly, the decision reinforces the hierarchy set out by the HRA: primary legislation is protected by sections 3(2) and 6(2), but subordinate legislation enjoys no such immunity where it can be cured consistently with the statutory scheme. It is a significant constitutional reaffirmation that section 6(1) binds all public authorities, including tribunals, in their day-to-day application of regulations.

Verdict: Appeal allowed. The local authority’s decision of 5 March 2013 was set aside and RR’s housing benefit entitlement was ordered to be recalculated without the 14% under-occupancy deduction, because applying it would breach his Convention rights contrary to section 6(1) of the Human Rights Act 1998.

Source: RR v Secretary of State for Work and Pensions [2019] UKSC 52