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URL: http://www.bailii.org/ew/cases/EWCA/Civ/2018/548.html
Cite as: [2018] 1 WLR 3429, [2018] EWCA Civ 548, [2018] WLR 3429, [2018] WLR(D) 176

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Neutral Citation Number: [2018] EWCA Civ 548
Case No: C3/2017/1457

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
MR JUSTICE CHARLES, UT JUDGE LLOYD-DAVIES, UT JUDGE WIKELEY
2017 UKUT 0174 (AAC)

Royal Courts of Justice
Strand, London, WC2A 2LL
20/03/2018

B e f o r e :

THE PRESIDENT OF THE QUEENS BENCH DIVISION
(SIR BRIAN LEVESON)
LORD JUSTICE FLAUX
and
LORD JUSTICE LEGGATT

____________________

Between:
THE SECRETARY OF STATE FOR WORK AND PENSIONS
Appellant
- and -

JAYSON CARMICHAEL & SEFTON COUNCIL
Respondents

____________________

Mr James Eadie QC & Mr Edward Brown (instructed by Government Legal Department) for the Appellant
Mr Richard Drabble QC (instructed by Leigh Day) for the 1st Respondent

Hearing date: Tuesday 20 February 2018

____________________

HTML VERSION OF JUDGMENT APPROVED
____________________

Crown Copyright ©

    Lord Justice Flaux:

    Introduction

  1. This appeal with the permission of Davis LJ raises the issue of the powers of the First Tier Tribunal and the Upper Tribunal in relation to a decision based on secondary legislation where, as in the present case, the Supreme Court has held that legislation to be unlawful (as being a violation of rights under Article 14 of the European Convention on Human Rights because it discriminated on the grounds of disability). Specifically, can the Tribunal set aside the original decision and devise its own solution to the violation of Convention rights, as the Upper Tribunal did in the present case, following and applying the decision of the Supreme Court in Mathieson v Secretary of State for Work and Pensions [2015] UKSC 47? The principal argument of the Secretary of State in this appeal is that, in setting aside the original decision and devising its own solution, the Upper Tribunal overstepped constitutional boundaries and usurped the function of the legislature.
  2. Factual and procedural background

  3. The underlying dispute in the present case concerns the entitlement of the first respondent to housing benefit. The first respondent's wife, Mrs Jacqueline Carmichael, is severely disabled. He is her full-time carer. She needs a special bed and mattress and a wheelchair beside her bed. He cannot share the same bed and there is not enough space for him to have a separate bed in the same room. He first applied for housing benefit on 13 August 2002. Until April 2013, the housing benefit covered in full the rent payable to Sefton Council, the second respondent.
  4. With effect from 1 April 2013, a cap on the housing benefit available was imposed by Regulation B13 of the Housing Benefit Regulations 2006 (SI 2006/213), introduced by way of re-amendment to those Regulations. As Lord Toulson JSC said in his judgment in the Supreme Court in 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; [2016] 1 WLR 4550 at [2], it was "a politically controversial matter, described as either a 'bedroom tax' or 'removal of the spare room subsidy' according to political viewpoint."
  5. The genesis of Regulation B13 was described in detail in [20] to [33] of the judgment of Laws LJ in the Divisional Court in R (on the application of MA and others) v Secretary of State for Work and Pensions [2013] EWHC 2213; [2013] PTSR 1521, appended to Lord Toulson JSC's judgment in the Supreme Court. As Lord Toulson said at [16]:
  6. "In summary, as part of its policy for curbing public expenditure the government aimed to ensure that social sector tenants of working age who were occupying premises with more bedrooms than they required should, wherever possible, move into smaller accommodation. It was recognised at an early stage that a policy based purely on numbers of rooms and occupants would cause problems for some with disabilities, and there was a debate within government and Parliament about how such problems should be addressed. The government initially decided that, rather than creating general exceptions for persons with disabilities (or certain categories of persons with disabilities), their needs should be met as necessary through a scheme of discretionary housing payments based on individual assessments."
  7. The terms of Regulation B13, so far as presently material, as it stood with effect from 1 April 2013, were as follows:
  8. "(1) The maximum rent (social sector) is determined in accordance with paragraphs (2) to (4).
    (2) The relevant authority must determine a limited rent by –
    (a) determining the amount that the claimant's eligible rent would be in accordance with regulation 12B(2) without applying regulation 12B(4) and (6);
    (b) where the number of bedrooms in the dwelling exceeds the number of bedrooms to which the claimant is entitled in accordance with paragraphs (5) to (7), reducing that amount by the appropriate percentage set out in paragraph (3); and
    (c) where more than one person is liable to make payments in respect of the dwelling, apportioning the amount determined in accordance with sub- paragraphs (a) and (b) between each such person having regard to all the circumstances, in particular, the number of such persons and the proportion of rent paid by each person.
    (3) The appropriate percentage is –
    (a) 14% where the number of bedrooms in the dwelling exceeds by one the number of bedrooms to which the claimant is entitled; and
    (b) 25% where the number of bedrooms in the dwelling exceeds by two or more the number of bedrooms to which the claimant is entitled.
    (4) Where it appears to the relevant authority that in the particular circumstances of any case the limited rent is greater than it is reasonable to meet by way of housing benefit, the maximum rent (social sector) shall be such lesser sum as appears to that authority to be an appropriate rent in that particular case.
    (5) The claimant is entitled to one bedroom for each of the following categories of person whom the relevant authority is satisfied occupies the claimant's dwelling as their home (and each person shall come within the first category only which is applicable) -
    (a) a couple (within the meaning of Part 7 of the Act);
    (b) a person who is not a child;
    (ba) a child who cannot share a bedroom;
    (c) two children of the same sex;
    (d) two children who are less than ten years old;
    (e) a child.
    (6) The claimant is entitled to one additional bedroom in any case where -
    (a) the claimant or the claimant's partner is (or each of them is) a person who requires overnight care; or
    (b) the claimant or the claimant's partner is (or each of them is) a qualifying parent or carer.
    (7) The claimant is entitled to two additional bedrooms where paragraph (6)(a) and (b) both apply."
    .…"
  9. Pursuant to Regulation B13, on 5 March 2013, the second respondent served a Decision Notice by which the first respondent's entitlement to housing benefit was reassessed and reduced by 14% due to over-occupancy of one bedroom notwithstanding the fact that due to Mrs Carmichael's disabilities, the first respondent was unable to share a bedroom with her. However, the shortfall between the amount previously paid (corresponding to the rent) and the new reduced housing benefit was made good by discretionary housing payments ("DHPs") to the first respondent, as described in [9] of the judgment of Lord Toulson JSC.
  10. The first respondent launched an appeal against that decision of 5 March 2013. pursuant to the right of appeal to the First-tier Tribunal granted by paragraph 6(1) of Schedule 7 to the Child Support, Pensions and Social Security Act 2000. At around the same time, Mrs Carmichael was one of the applicants granted permission to apply for judicial review in MA and others to challenge the amendments made to the Housing Benefit Regulations through Regulation B13. The basis of the challenge was a general one that the new measures were unlawfully discriminatory because they failed to provide for the needs of people with a range of disabilities. The application was dismissed by the Divisional Court (Laws LJ and Cranston J) on 30 July 2013 (R (on the application of MA and others) v Secretary of State for Work and Pensions [2013] EWHC 2213; [2013] PTSR 1521). Some claims were then resolved but the claim of Mrs Carmichael amongst others went to the Court of Appeal.
  11. On February 21 2014 the Court of Appeal dismissed the outstanding appeals (R (on the application of MA and others) v Secretary of State for Work and Pensions [2014] EWCA Civ 13; [2014] PTSR 584). They accepted that Regulation B13 had a discriminatory effect on some people with disabilities but held, applying the "manifestly without reasonable foundation" test, that the discrimination was justified because the Secretary of State was entitled to take the view that it was not practicable to exempt an imprecise class of persons to whom the size criteria in the Regulation would not apply because they needed extra bedroom space by reason of disability. The scheme of DHPs was flexible and appropriate given that the nature of a person's disability and disability-related needs may change over time. The Court of Appeal also rejected a submission by Mrs Carmichael that her case was indistinguishable from that of Gorry (one of the appeals allowed by the Court of Appeal in Burnip v Birmingham City Council [2012] EWCA Civ 629; [2013] PTSR 117), a case of children who were disabled and so could not sleep in the same bedroom. The Court of Appeal considered that the Secretary of State was entitled to provide greater protection to a child than an adult because the best interests of a child are a primary consideration. Cases such as Gorry have been addressed by the amendment to introduce sub-paragraph (5) (ba) into Regulation B13 with effect from 4 December 2013.
  12. The first respondent's appeal to the First-tier Tribunal was heard on 9 April 2014. The appeal was allowed and the First-tier Tribunal set aside the decision of the second respondent of 5 March 2013 and, purportedly pursuant to section 3 of the Human Rights Act 1998, held that Regulation B13(5)(a) should be read as follows:
  13. "(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" (words added in by the First-tier Tribunal emphasised).
  14. On that basis, the First-tier Tribunal concluded that the first respondent was entitled to two bedrooms under regulation B13(5) and so no under-occupancy requirement of 14% was to be made in relation to his housing benefit entitlement. It was common ground before the Upper Tribunal and on appeal in this Court that the interpretative process engaged in by the First-tier Tribunal was not open to it and went beyond what was permitted by section 3(1) of the Human Rights Act.
  15. The appeal by the Secretary of State to the Upper Tribunal from the decision of the First-tier Tribunal was stayed pending the determination of Mrs Carmichael's appeal to the Supreme Court in the judicial review proceedings. The judgments of the Supreme Court on that and the other outstanding appeals were handed down on 9 November 2016 (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; [2016] 1 WLR 4550). The Supreme Court dismissed the appeals of the other claimants in the MA case on the basis that it was reasonable for the Secretary of State to regard a discretionary housing payment scheme as a more appropriate method of dealing with the effect of Regulation B13 on persons suffering from disability than an exhaustive set of bright line rules to cover every contingency. However, the Supreme Court found in favour of Mrs Carmichael and other claimants, the Rutherfords (who needed an overnight carer for their grandson who had severe disabilities) given their specific situations as people with what Lord Toulson JSC at [42] described as "a transparent medical need for an additional bedroom".
  16. At [44] he found that Mrs Carmichael's position was directly comparable to that of the Gorry children, but she was caught by regulation B13 because paragraph (5)(ba) was confined to "a child who cannot share a bedroom". He continued at [46] to [49]:
  17. "46 There is no reasonable justification for these differences. The Court of Appeal in MA was persuaded [2014] PTSR 584, para 79 that there was an objective reasonable justification for treating Mrs Carmichael less favourably than a child in like circumstances, because the best interests of children are a primary consideration. I can see that there may be some respects in which differential treatment of children and adults regarding the occupation of bedrooms may have a sensible explanation. Expecting children to share a bedroom is not the same as expecting adults to do so. But I cannot, with respect, see a sensible reason for distinguishing between adult partners who cannot share a bedroom because of disability and children who cannot do so because of disability. And the same applies also to distinguishing between adults and children in need of an overnight carer.
    47 There is also an ironic and inexplicable inconsistency in the Secretary of State's approach in the Carmichael and Rutherford cases which Lord Thomas CJ exposed in the latter at para 73:
    'He [the Secretary of State] justified the distinction between making provision for a bedroom for disabled children but not for disabled adults by reference to the best interests of the child and explained the different treatment on that basis. On that basis, it seems to us very difficult to justify the treatment within the same regulation of carers for disabled children and disabled adults, where precisely the opposite result is achieved; provision for the carers of disabled adults but not for the carers of disabled children.'
    48 Lord Thomas CJ added that the court accepted that DHPs were intended to provide the same sum of money, but it was not persuaded that this justified the different treatment of children and adults in respect of the same essential need within the same regulation. I agree.
    49 I would therefore dismiss the Secretary of State's appeal in the Rutherford case, but I would allow Mrs Carmichael's appeal and would hold that in her case there has been a violation of article 14, taken with article 8. (In these circumstances A1P1 adds nothing and does not require further consideration.)".
  18. Thus, as Mr James Eadie QC for the Secretary of State pointed out in his submissions before us, the discrimination found by the Supreme Court was structural rather than financial, in that their Lordships concluded the structure of the Regulations was discriminatory in failing to make provision for those with a transparent medical need for an additional bedroom. As Mr Eadie QC also pointed out, the only relief granted by the Supreme Court was declaratory. Neither Mrs Carmichael nor the Rutherfords sought any other relief, including damages. They certainly did not seek some form of declaratory relief from the Court reformulating the wording of the Regulation or finding that they were entitled to housing benefit in full under the Housing Benefit Regulations as if the amendment by Regulation B13 had not been in effect.
  19. The legislative response to the decision of the Supreme Court was that, on 2 March 2017, the Secretary of State laid before Parliament the Housing Benefit and Universal Credit (Size Criteria) (Miscellaneous Amendments) Regulations 2017 which took effect from 1 April 2017. So far as relevant, these added two new categories to Regulation B13(5):
  20. "(za) a member of a couple who cannot share a bedroom;
    (zb) a member of a couple who can share a bedroom;".
  21. By way of definition for the purposes of those new categories, a new paragraph (6) was introduced into Regulation 2 of the Housing Benefit Regulations:
  22. "(6) For the purpose of these Regulations, reference to a member of a couple who can share a bedroom is to a member of a couple where the other member of the couple is a member of a couple who cannot share a bedroom".

    In its judgment, the Upper Tribunal said of that provision that it was somewhat counter-intuitive but: "in the best traditions of the dense drafting of social security secondary legislation."

  23. In January 2017, the stay of the proceedings in the Upper Tribunal was lifted and on 28 March 2017, the appeal was heard by a three-judge panel.
  24. The Decision of the Upper Tribunal

  25. By its Decision dated 27 April 2017, the Upper Tribunal set aside the decision of the First-tier Tribunal as involving an error of law, in other words, the use of an impermissible interpretative process not permitted by section 3 of the Human Rights Act which added words into Regulation B13(5)(a). The Upper Tribunal remade the decision as follows:
  26. "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)."
  27. In the Analysis section of its Reasons, the Upper Tribunal rejected the principal submission of Mr Eadie QC for the Secretary of State that, where, as in the present case, secondary legislation cannot be interpreted compatibly with Convention rights, and the incompatibility is not the inevitable consequence of primary legislation, then the benefit claimant's only remedy (pending legislative change) is an action for damages in a court under section 8(2) of the Human Rights Act. Their reasons for rejecting that submission were twofold.
  28. First, they considered that the submission failed to give effect to two important provisions of the Human Rights Act: section 6(1) which provides that a tribunal must not act in a way which is incompatible with a Convention right, and section 7(1)(b) which provides that a claimant has the right to rely on the Convention right or rights concerned in any legal proceedings. The Upper Tribunal held that the first respondent's right under section 7(1)(b) would be ineffective and illusory if he were obliged to bring a separate civil claim in the courts for damages (see [60] of the Reasons).
  29. Second, the Upper Tribunal considered that the submission was contrary to the decision of the House of Lords in Chief Adjudication Officer v Foster [1993] AC 754 that a tribunal is empowered to provide an effective remedy where secondary legislation is ultra vires. The Upper Tribunal considered that there was a close analogy between secondary legislation which is ultra vires and secondary legislation which is incompatible with a person's Convention rights, as in the present case (see [61] of the Reasons).
  30. The Upper Tribunal went on to conclude at [62] that, in the light of the decision of the Supreme Court in Mathieson v Secretary of State for Work and Pensions [2015] UKSC 47; [2015] 1 WLR 3250 and similar authorities:
  31. "…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."
  32. The Upper Tribunal had considered Mathieson in some detail earlier in its reasons at [43] to [51]. So far as relevant to the present appeal, the facts were that Cameron Mathieson was a severely disabled young boy in receipt of the highest rate care component and the higher rate mobility component of disability living allowance (DLA) who was admitted to hospital in July 2010, where he subsequently remained for over a year. At the time the relevant provisions of the Social Security (Disability Living Allowance) Regulations 1991 as amended provided that a person was not entitled to receive DLA for any period during which he was maintained free of charge while undergoing medical or other treatment as an in-patient in an NHS hospital. However, in the case of children aged under 16 in receipt of DLA this restriction did not apply for the first 84 days of their hospital stay. As a result a decision maker at the Department of Work and Pensions made a decision suspending Cameron's DLA with effect from a date in October 2010. His father appealed that decision on the basis that it breached Cameron's right not to be discriminated against under Article 14 of the European Convention on Human Rights, read with the right to peaceful enjoyment of his possessions in article 1 of the First Protocol to the Convention.
  33. That appeal was dismissed by the First-tier Tribunal, the Upper Tribunal and the Court of Appeal. Cameron's father continued the appeal, although Cameron had sadly died. The Supreme Court allowed the appeal. Particular reliance was placed by the Upper Tribunal on [48] and [49] of the judgment of Lord Wilson headed "Answer", which dealt with the issue of disposal of the appeal:
  34. "Answer
    48. 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.
    49. 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. Anyway, as the Secretary of State points out, it may not always follow that the suspension of payment of a child's DLA following his 84th day in hospital will violate his human rights. Decisions founded on human rights are essentially individual; and my judgment is an attempted analysis of Cameron's rights, undertaken in the light, among other things, of the extent of the care given to him by Mr and Mrs Mathieson at Alder Hey. Although the court's decision will no doubt enable many other disabled children to establish an equal entitlement, the Secretary of State must at any rate be afforded the opportunity to consider whether there are adjustments, otherwise than in the form of abrogation of the provisions for suspension, by which he can avoid violation of the rights of disabled children following their 84th day in hospital."
  35. Similarly, at [61] of his concurring judgment, Lord Mance said:
  36. "With regard to the appropriate remedy to give effect to these conclusions, I agree that this should be tailor-made and limited to Cameron's particular position, by simply deciding that the decision in his case cannot stand and that he was entitled to continued payment of DLA after 84 days. The Secretary of State may be able to refine the criteria for the receipt or cessation of DLA in other cases in a manner which avoids the inequity involved in its withdrawal in respect of those in Cameron's position. We cannot address in general declaratory terms the position of children receiving DLA and hospitalised for longer than 84 days, as Mr Mathieson invites us to do."
  37. At [65] of its Reasons, the Upper Tribunal in the present case agreed with the analysis of Mr Richard Drabble QC for the first respondent that Lord Wilson had answered the question what sum should the claimant receive by way of benefit by saying it was the full amount of the benefit, unaffected by the rule [i.e. the regulation] which involved a breach of that person's Convention rights. In that respect, the Upper Tribunal could see no material distinction between the two cases. The appeal was a statutory appeal under the social security legislation in which, just as in Mathieson, the first respondent was seeking to establish the correct level of his lawful entitlement to housing benefit. The Upper Tribunal did not see how he could be said to be able to rely on his Convention right in the appeal under section 7(1)(b) if, having won his statutory appeal, he had to pursue a separate cause of action for damages in the civil courts under section 8 of the Human Rights Act.
  38. The Upper Tribunal also accepted at [66] that Mathieson was not a "one-off" case but reflected a consistent line of authority that commissioners or tribunals hearing statutory appeals have jurisdiction to decide legal issues relevant to both entitlement to and the quantification of a successful claim for benefit. The Upper Tribunal referred to Foster and the decisions of the Supreme Court in R (On the application of Quila) v Secretary of State for the Home Department [2011] UKSC 45 and Humphreys v Her Majesty's Revenue and Customs [2012] UKSC 18, as well as, by analogy, the decision of the House of Lords in In re P and others [2008] UKHL 38.
  39. The Upper Tribunal concluded at [67]:
  40. "…in the present case the Tribunal should have concluded that notwithstanding regulation B13(2)(b) and (3), Mr Carmichael was entitled to payment of housing benefit without the 14% deduction. Whatever other criteria fell to be satisfied under the 2006 Regulations, it was unlawful of the Council to apply the reduction to Mr Carmichael's claim on the ground only that the legislation made no provision for separate bedrooms for the couple in circumstances where that involved a breach of their Convention rights, that provision being discriminatory in that the rules did not properly reflect the medical needs of a seriously disabled person."
  41. It went on to reject the submissions of Mr Eadie QC as to why the Upper Tribunal should not adopt that approach. The Upper Tribunal considered at [73] that those submissions ignored the distinction between the Tribunal devising an appropriate lawful remedy on the facts of a case to ensure it is compliant with the Convention, and Parliament developing a legislative solution to the problem applicable across the board in similar cases. At [74] the Upper Tribunal said that it was not persuaded that:
  42. "there is any risk that a random patchwork of benefit provision will somehow spring up, generated by rogue decision-makers or tribunals. As we have seen, the housing benefit scheme is a highly regulated regime where the Secretary of State supplements the legislation with 'soft law' guidance to decision-makers, and local authorities also have wide powers to suspend the payment of benefit".

    The grounds of appeal

  43. The two grounds of appeal are:
  44. (1) The Upper Tribunal was wrong to find that it and the First-tier Tribunal had the power to devise solutions to Convention violations which involve the provision of benefit under conditions different from those provided for by the legislative scheme governing the benefit in question. In other words, the Upper Tribunal was wrong to find that it and the First-tier Tribunal could disapply or "not give effect to" mandatory statutory provisions which violate Convention rights.

    (2) In devising its solution in this case, the Upper Tribunal erroneously failed to have regard to other payments (in particular DHPs) for which provision had been made by the Secretary of State to make up for reductions in housing benefit.

    The parties' submissions

  45. On behalf of the Secretary of State Mr Eadie QC drew attention to the fact that the Human Rights Act itself clearly respected the separation of powers. Thus, whilst section 3 required courts and tribunals so far as possible to read and give effect to Regulation B13 in a way which was compatible with Convention rights, that did not enable the tribunals to rewrite the Regulation. Just as it had been impermissible for the First-tier Tribunal to rewrite the Regulation by writing words into it (as the Upper Tribunal had found), so it was equally impermissible for the Upper Tribunal to rewrite the Regulation by the disapplication of particular words in the Regulation. There was no material distinction between the approaches of the two tribunals. Both were impermissible.
  46. Neither the First-tier Tribunal nor the Upper Tribunal had jurisdiction to make a declaration of incompatibility under section 4 as neither was a "court" as defined and, in any event, the primary legislation did not prevent the removal of the incompatibility in the secondary legislation in this case, so that even if the matter had been before a court, this was not a section 4 case.
  47. The judicial remedies available outside those two sections were set out in section 8, specifically in sub-sections (1) and (2) which provide:
  48. "Judicial remedies.
    (1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.
    (2) But damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings."
  49. It was clear that that section did not extend the powers of courts or tribunals beyond their existing powers: see per Lord Wilson in R (T) v Chief Constable of Greater Manchester Police [2014] UKSC 35; [2015] AC 49 at [63]. Only a court had power to award damages, as the power of the Minister under section 7(11) to add to the relief and remedies that tribunals could grant had not been exercised. The order which the Upper Tribunal had made in paragraph 2 of its Decision, that the housing benefit to which the first respondent was entitled was to be recalculated without making the under-occupancy deduction of 14% effectively rewrote Regulation B13 in this case and was clearly not within the existing powers of the First-tier Tribunal or the Upper Tribunal.
  50. Section 6(1) and (3) which provide that it is unlawful for a court or tribunal as a "public authority" to act in a way which is incompatible with Convention rights did not give the First-tier Tribunal or the Upper Tribunal the power to make the order it made (a power which was not one of its existing powers), let alone require it to do so, as Mr Drabble QC contended. Mr Eadie QC submitted that the Upper Tribunal should simply have declared the Regulation incompatible and left any remedy by way of damages to the courts. In fact, of course, the violation of his Convention rights had not caused the first respondent any loss because the shortfall in housing benefit caused by the application of Regulation B13 had been made up through payment of DHPs.
  51. Had the Upper Tribunal adopted that course as it should have done, it would not have been acting unlawfully under section 6(1). Mr Eadie QC drew attention to section 6(6) which provides:
  52. "An act" [of a public authority under the section] includes a failure to act but does not include a failure to—
    (a) introduce in, or lay before, Parliament a proposal for legislation; or
    (b) make any primary legislation or remedial order."

    This provision recognises, as Lord Wilson said in T at [65]: "the thread, central to the whole Act, of respect for Parliamentary sovereignty."

  53. He submitted that it was for Parliament to decide how a provision in secondary legislation which had been found to be incompatible with Convention rights was to be rendered compatible. In a given case this would involve legislative choice against the background of constraints on public spending. For example, in the present case, Parliament could have dealt with the incompatibility of Regulation B13 by levelling down, so that in effect there was a reduction in housing benefit across the board or by levelling up so that the 14% reduction was removed altogether or by levelling up for certain categories of people with conditions. In the amended Regulations introduced with effect from April 2017, Parliament had chosen to introduce levelling-up with conditions, namely that the "member of a couple who cannot share a bedroom" satisfied the conditions set out in the definition in Regulation 2 as amended.
  54. Mr Eadie QC submitted that the Supreme Court had consistently acknowledged that it was not for the courts to make choices which are properly characterised as legislative. He referred us, for example to the benefits cap case R (SG) v Secretary of State for Work and Pensions [2015] UKSC 16; [2015] 1 WLR 1449 per Baroness Hale of Richmond DPSC at [230]-[231] limiting the relief granted to declaratory relief and declining to make an Order quashing Part 8A of the Housing Benefit Regulations. Likewise in Humphreys at [34] Baroness Hale recognised the dividing line between the granting of an appropriate remedy and what would in effect be judicial legislation. The remedy granted by the Supreme Court in Carmichael itself of declaring that there had been a violation of Article 14 taken with Article 8 had properly respected that dividing line.
  55. In the present case, the Upper Tribunal had impermissibly crossed that dividing line and redesigned the statutory scheme in this particular case. To the extent that it had done so because it considered that leaving an appellant to pursue a claim for damages in the civil courts would be an "ineffective or illusory" remedy, it had ignored that this was the jurisdictional and procedural limit as regards remedies decided by Parliament in section 8 of the Human Rights Act. The Upper Tribunal also appeared to have overlooked that the first respondent had received DHPs so that leaving him to a remedy in damages (if any) was not ineffective or illusory. By contrast, the approach of the Upper Tribunal that his housing benefit entitlement was to be recalculated without the 14% deduction would lead to him making a double recovery. It was this misplaced focus on entitlement without taking proper account of the payment of DHPs which gave rise to the second ground of appeal.
  56. In any event, the description of the damages remedy as ineffective or illusory is an overstatement. It would have been open to the first respondent and Mrs Carmichael to claim damages under section 8(2) as part of the relief they sought in the judicial review proceedings which went to the Supreme Court. They had chosen not to do so, presumably because they had suffered no loss as a consequence of the Regulation being incompatible with their Convention rights due to having received DHPs.
  57. Mr Eadie QC submitted that the reliance by the Upper Tribunal on Mathieson and Foster was misplaced. Contrary to Mr Drabble QC's submission, accepted by the Upper Tribunal, Mathieson did not reflect a consistent line of authority but was a "one-off" case. Mr Eadie QC submitted that the reasoning which had led to the substitution of the tailor-made decision in [48(d)] of Lord Wilson's judgment and [61] of Lord Mance's judgment was not clearly spelt out or explained. They had not grappled with the constitutional issues of what was in effect judicial legislation and it was apparent that neither of them had reasoned on the basis that the legislation required to be changed or redesigned.
  58. Foster simply concerned part of a paragraph in the Income Support (General) Regulations 1987 which operated to defeat the appellant's claim to the severe disability premium which was held by a social security commissioner to be in excess of the regulation-making power of the Secretary of State. The commissioner severed that part of the paragraph from the remainder which established the appellant's entitlement. The House of Lords held that the commissioners undoubtedly had jurisdiction to determine the vires of the regulations. Mr Eadie QC submitted that the case was not dealing with the counterbalancing considerations involved in consideration of whether Convention rights had been violated and was no support for the approach adopted by the Upper Tribunal in the present case.
  59. In his submissions on behalf of the first respondent, Mr Drabble QC focused on the fact that in claims for housing benefit, the statutory decision makers (which are the Local Authority, the First-tier Tribunal and the Upper Tribunal) are under a positive duty to make a decision on the individual claim and calculate the benefit to which the claimant was entitled. This was the task in which the Upper Tribunal had engaged in the present case.
  60. In relation to its actual Decision set out at [17] above, he submitted that paragraph 1, allowing the appeal against the original decision of the second respondent council of 5 March 2013, was not open to challenge. That original decision had been unlawful and no answer had been provided to that point by the Secretary of State. Contrary to Mr Eadie QC's submissions, paragraph 2 did not lead to double recovery given the payment of DHPs, since it was concerned with entitlement to recalculation of housing benefit, not ordering payment.
  61. He submitted that if the Upper Tribunal had not made the Order it did and set out the entitlement, but had done no more than leave matters as they were with Regulation B13 as originally enacted, which had been found by the Supreme Court to be discriminatory, it would have been acting unlawfully contrary to section 6(1) of the Human Rights Act, neither of the exceptions in section 6(2) being applicable. The requirement was that the First-tier Tribunal and the Upper Tribunal comply with the duty not to discriminate and thus calculate the entitlement to benefit on a lawful basis, if necessary by disapplying or severing the discriminatory provision. Anything less would amount to a decision giving effect to the discriminatory provisions of regulation B13 and would be unlawful under section 6(1). The requirement to calculate the benefit on a lawful, non-discriminatory basis was also the explanation for [48(d)] of Mathieson. Mr Drabble QC maintained before this Court, as he had before the Upper Tribunal, that Mathieson was not a one-off case but reflected a consistent line of authority. I will refer to the authorities upon which he relied later in this judgment.
  62. Analysis and conclusions

  63. It is clear that, as Mr Eadie QC submitted, the existing powers of courts and tribunals do not include the rewriting of primary or secondary legislation in order to render it compatible with Convention rights. Certainly no such power is given by section 3 of the Human Rights Act and the limits to interpretation of legislation as being compatible with Convention rights are not somehow expanded where, as in this case, the legislation is secondary legislation where the primary legislation does not prevent removal of the incompatibility. However, the only way in which the first respondent could be awarded the full housing benefit without the 14% deduction is by a disapplication of Regulation B13(5)(a) as it was in force at the time. The First-tier Tribunal sought to do that by writing into the provision the words: "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." It is accepted that the approach of the First-tier Tribunal went beyond the interpretive process required by section 3 and was impermissible; hence the Upper Tribunal set aside the decision of the First-tier Tribunal as involving an error of law.
  64. The approach of the Upper Tribunal was to order that the first respondent was entitled to a recalculation of housing benefit without the 14% deduction, but it does not explain in its Reasons how that is to be achieved given the wording of the relevant Regulation B13. At [67] the Upper Tribunal simply says that: "notwithstanding regulation B13(2)(b) and (3) Mr Carmichael was entitled to payment of housing benefit without the 14% deduction" but that amounts to rewriting Regulation B13 so that it no longer contains those provisions. I do not consider that there is any material difference between that approach of excision of words from the Regulation and the approach of the First-tier Tribunal of adding words to the Regulation. They are both impermissible rewriting of the Regulation going beyond any permissible interpretation of the legislation under section 3 of the Human Rights Act.
  65. It does not seem to me that it is any answer to that fundamental flaw in the approach of the Upper Tribunal that the appeal was a statutory appeal under a statutory regime where part of the function of the decision maker, including the tribunals, is to calculate the benefit to which the appellant is entitled, as Mr Drabble QC submitted. It is uncontroversial that on appeal, the First-tier Tribunal or the Upper Tribunal has power to make any decision the original decision maker could have made: see the decision of the Tribunal of Commissioners presided over by His Honour Judge Hickinbottom, Chief Commissioner (as he then was) in R (IB) 2/04 at [25] to which Mr Drabble QC referred the Court. However, the function of the original decision maker (and thus of the tribunals on appeal) of calculating the benefit entitlement must be by reference to the Regulations in force at the relevant time not to some rewritten Regulation, rewritten by the First-tier Tribunal or the Upper Tribunal to make it Convention compliant, but which has never been enacted by Parliament or ever in force.
  66. Nor do I consider that there is any force in Mr Drabble QC's submission that, if the Upper Tribunal had not made the decision it did, it would have been acting unlawfully under section 6(1) of the Human Rights Act. Section 6(6) makes it clear that a failure to pass remedial legislation is not an "act" of a public authority for the purposes of the section and, by parity of reasoning, it seems to me that a tribunal cannot be required pursuant to the section to go beyond its existing powers and fashion a remedy which involves rewriting the relevant legislation or, at the very least, ignoring its terms. Contrary to Mr Drabble QC's submissions, it seems to me that granting a declaration that Regulation B13 as it was in force prior to 1 April 2017 was discriminatory under Article 14 and Article 8 could not in any sense be said to be a decision giving effect to that discriminatory provision and thus be unlawful under section 6(1).
  67. Furthermore, in my judgment, the decision of the Supreme Court in Mathieson to fashion a remedy to meet the particular facts of that case does not provide sure authority to justify the approach of the Upper Tribunal on the very different facts of the present case (where DHPs had been paid so the acute financial hardship suffered by Mr Mathieson is absent). I have reached that conclusion for two principal reasons.
  68. First, I agree with Mr Eadie QC that their Lordships do not appear to have considered any constitutional implications of the remedy they adopted, which suggests very strongly that they did not regard themselves as changing or redesigning the relevant legislation, but as dealing only with the problems thrown up by that individual case. That is borne out by Lord Wilson's use of the phrase in [48(d)]: "if only for the sake of clarity" and Lord Mance's reference to a "tailor made" remedy "limited to Cameron's particular position". It is also borne out by the fact that the Supreme Court declined to read the relevant regulations as not applicable to children generally or to grant the general declaratory relief sought by Mr Mathieson which would have applied to children to whom the Regulations apply generally. Lord Wilson clearly had in mind the need to preserve legislative choice as to how to render compatible legislation found to be incompatible with Convention rights when he said at the end of [49]:
  69. "Although the court's decision will no doubt enable many other disabled children to establish an equal entitlement, the Secretary of State must at any rate be afforded the opportunity to consider whether there are adjustments, otherwise than in the form of abrogation of the provisions for suspension, by which he can avoid violation of the rights of disabled children following their 84th day in hospital."
  70. Second, contrary to Mr Drabble QC's submission accepted by the Upper Tribunal at [66], I do not accept that Mathieson reflects a consistent line of authority which would justify the approach adopted by the Upper Tribunal in the present case. Of the cases which Mr Drabble relied upon as establishing the remainder of this supposed line of authority, Quila was not a case where the relevant legislation was said to constitute a violation of Convention rights. Rather it was a case where the executive decision of the Secretary of State to refuse applications for leave to remain in immigration cases was held to be a violation of the applicants' rights under Article 8 of the Convention.
  71. At [61], to which the Upper Tribunal referred, Baroness Hale said:
  72. "The issue, as Mr Drabble reminded us at the outset of his submissions, is whether the Secretary of State has acted incompatibly with the Convention rights of these particular young people. By reason of section 6(1) of the Human Rights Act 1998, it is unlawful for her to do so. This is subject to section 6(2), where a public authority is acting, to put it loosely, in compliance with primary legislation which cannot be read or given effect in any other way. That is not this case. The Secretary of State has acted in compliance with her own Immigration Rules, which do not even have the status of delegated legislation: see Odelola v Secretary of State for the Home Department [2009] UKHL 25, [2009] 1 WLR 1230. She does have a choice and it is her duty to act compatibly with the Convention rights of the people with whom she is concerned. Of course, where delicate and difficult judgments are involved in deciding whether or not she has done so, this Court will treat with appropriate respect the views taken by those whose primary responsibility it is to make the judgments in question. But those views cannot be decisive. Ultimately, it is for the court to decide whether or not the Convention rights have been breached: R (SB) v Governors of Denbigh High School [2006] UKHL 15, [2007] 1 AC 100; Belfast City Council v Miss Behavin' Ltd [2007] UKHL 19, [2007] 1 WLR 1420."
  73. There is nothing in that passage which bears upon whether the relevant primary or secondary legislation violated the Convention rights of the applicants. Indeed, as Baroness Hale said, the Immigration Rules did not have the status of delegated legislation and the point that was being made was that where the Secretary of State has a choice, she must ensure that Convention rights are not violated and if she does not (an executive decision), it is for the Courts to say those rights have been breached. There is no suggestion there that the Courts could rewrite the Immigration Rules to ensure they were in accordance with Convention rights.
  74. Humphreys was a case of a statutory appeal by a father separated from his wife against a decision to refuse a claim for child tax credit in circumstances where the wife had main responsibility for the children and received child tax credit, but the children spent the weekends with their father. He challenged the "no splitting" rule that tax credit could only be paid to one person as discriminating in favour of women. The Supreme Court held that the rule was a reasonable one and any indirect discrimination it entailed was objectively justified. What Baroness Hale said at [34] of her judgment about remedy had she reached a contrary conclusion, which Mr Drabble QC also relied upon, was thus clearly obiter:
  75. "Had I reached a different conclusion, it would have been necessary to consider the difficult question of remedy. It is difficult for several reasons, not least because this is a statutory appeal rather than judicial review, so that we are limited to upholding or setting aside the tribunal's decision and if we set it aside to re-making it ourselves or sending it back to the tribunal to decide. If we were to disapply Rule 2.2 in reg 3 (para 7 above), the effect of section 7(2) of the 2002 Act would appear to be that, as the father was in receipt of a prescribed benefit, he would be entitled to CTC at the full rate if he were held to be responsible for the children during the period in question, even though the mother has already received it at that rate and there is no machinery for recovering any part of it from her. In other words, we would be disapplying a rule which has a discriminatory effect without any means of applying the only sensible alternative rule, which is to share the benefit between the parents. Section 7(2) is in primary legislation and cannot simply be ignored. Fortunately, we do not have to grapple with this conundrum, although of course that fact that it arises in this case would not have been a reason to hold that the impugned rule is justified."
  76. Far from that passage supporting the proposition that had the Supreme Court decided the case differently, they would have been willing to disapply the relevant Regulation, it seems to me that Baroness Hale was recognising that the relevant legislation could not be rewritten to provide for the only sensible alternative, because only Parliament could rewrite the legislation. The passage is of limited assistance in the present context. As Mr Eadie QC said, the highest it can be put is that, whatever other objections there may have been to disapplying the relevant Regulation, there was a fundamental objection that to do so would be contrary to primary legislation.
  77. The decision of the House of Lords in the Northern Irish appeal of In re P and others [2008] UKHL 38; [2009] 1 AC 173, upon which the Upper Tribunal relied but which Mr Drabble QC did not rely upon in argument before this Court is concerned with an issue of interpretation of the Convention and domestic legislation and does not support the approach adopted by the Upper Tribunal.
  78. In his submissions before this Court Mr Drabble QC also relied upon the decision of the Court of Appeal in Hockenjos v Secretary of State for Social Security (No. 2) [2004] EWCA Civ 1749; [2005] 1 FLR 1009. That case concerned whether jobseeker's allowance could be split between mother and father notwithstanding that the relevant Regulation, Regulation 77 of the Jobseeker's Allowance Regulations 1996, did not permit splitting. That was held to be discriminatory contrary to Article 4 of the Council Directive 79/7/EEC. Applying the doctrine of direct effect, Regulation was disapplied: see per Scott Baker LJ at [87]-[88]. However, that was a case concerned with European law pursuant to which the relevant Council Directive had direct effect as a matter of English law. The principle is of no application in cases concerned with violation of rights under the European Convention of Human Rights, so does not assist in the present case.
  79. As Mr Eadie QC submitted, in cases where primary or secondary legislation has been held to violate Convention rights, the general approach of the Courts is to grant declaratory relief to that effect, but to decline to grant wider declaratory relief which might trespass on the role of the legislature. That can be seen from [67] of Lord Wilson's judgment in T to which reference has already been made. It also emerges from the decision of the Court of Appeal in Burnip v Birmingham City Council [2012] EWCA Civ 629; [2013] PTSR 117 (to which I referred at [8] above), where the single bedroom rule in Regulation B13 was held to be discriminatory in violation of Article 14 of the Convention in cases of disabled people who needed a night carer and disabled children who could not share a bedroom.
  80. The Court of Appeal made a declaration to that effect but declined to go further. In relation to relief Maurice Kay LJ said at [24]:
  81. "It follows from what I have said that (1) the appellants have established a prima facie case of discrimination pursuant to Article 14 and (2) for the reasons set out in the judgment of Henderson J, the Secretary of State has failed to establish objective and reasonable justification for the discriminatory effect of the statutory criteria. I would therefore allow the appeals from the Upper Tribunal. I would make a declaration to that effect. The question then arises as to whether any further relief is appropriate. In so far as the Burnip and Trengove cases are concerned, the Regulations have been amended as from 1 April 2011. Mr Eicke submits that we should go no further than to grant declaratory relief, leaving it to the Secretary of State as to how to deal with the rectification of the discrimination in all three cases. Such an approach accords with the course taken in Francis v Secretary of State for Work and Pensions [2006] 1 WLR 3202. I consider it particularly appropriate in a case in which the Secretary of State is responsible for the Regulations but local authorities (who are respondents to these appeals but have taken no part in them) are responsible for the provision of HB to claimants."

    As to the appropriate relief, Henderson J was in full agreement with these views at [65].

  82. At [16] of its reasons in the present case, the Upper Tribunal relied upon the form of Order actually made by the Court of Appeal in Burnip which was to the effect that each appellant was entitled to have housing benefit reassessed and paid by the respondent councils in compliance with the judgment and Article 14. However, to the extent that the Upper Tribunal relied upon that form of Order to justify the Order it made, such reliance was misconceived. We were informed by Mr Drabble QC (who acted for two of the appellants in Burnip) that the relevant part of the Order was agreed between counsel and made by consent. Thus, the form of the Order made does not in any sense vitiate the views expressed by Maurice Kay LJ as to what relief was appropriate.
  83. Similar concern to that expressed by Maurice Kay LJ that the courts should not trespass into areas which are for the legislature and the executive, such as how legislation found to be incompatible with Convention rights should be made compatible was expressed by Baroness Hale in SG at [230]-[232] in declining to go beyond declaratory relief and, in particular, in declining to make an Order quashing Part 8A of Housing Benefit Regulations:
  84. "Relief
    230. The claimants seek both declaratory relief and an order quashing Part 8A of the Housing Benefit Regulations. The latter would not be appropriate, given that it is not suggested in this case that the implementation of the cap in relation to single person and two parent households is incompatible with the Convention rights. It is the implementation in relation to lone parents, some of whom will be fleeing domestic violence, and their dependent children, which has been shown to be incompatible.
    231. There are several different ways in which that incompatibility might be cured, most notably perhaps by taking the child tax credit and/or child benefit payable to lone parents out of the list of welfare benefits taken into account in calculating the cap. It is true, of course, that the Government resisted amendments to take housing benefit, child benefit and child tax credit out of the cap, on the ground that this would be to emasculate its policy objectives. It is easy to see how this might be so, if it were done for all claimants. But it has not been shown that taking the child-related benefits out of the cap as it applies to lone parents would do so. In any event, it is obvious that there is sufficient flexibility in the statutory scheme to enable appropriate solutions to be crafted. It is not for this court to suggest any particular way in which the problem might be solved.
    232. In my view, therefore, the appropriate relief would be a declaration that Part 8A of the Housing Benefit Regulations is incompatible with the Convention rights in that its application to lone parents is indirectly discriminatory on grounds of sex, contrary to article 14 of the Convention read with article 1 of the First Protocol."
  85. Accordingly, I do not consider that Mathieson reflects a consistent line of authority. Rather it is a case turning on its own particular facts and cannot justify the course adopted by the Upper Tribunal in the present case.
  86. Furthermore, in contrast to Mathieson, the solution adopted by the Upper Tribunal in the present case does not amount to a tailor made solution for the first respondent's particular case, but will be equally applicable to other claimants for housing benefit in the same position as the first respondent, of whom we understand there are a considerable number. The effect of the decision of the Upper Tribunal if allowed to stand would thus be to legislate to cover the position of claimants from when Regulation B13 came into effect on 1 April 2013 until the amended Regulation came into effect on 1 April 2017, in a manner which does not correspond to the wording of the Regulation originally in force or of the amended Regulation. In my judgment, this is the Upper Tribunal impermissibly trespassing into the legislative arena, which is for Parliament, particularly where political issues arise as to the deployment of limited public fiscal resources. In those circumstances, it is for Parliament, not the court or tribunal to determine what form legislation should take in order to be compliant with Convention rights.
  87. I agree with the submission of Mr Eadie QC that the decision of the House of Lords in Foster does not support the approach of the Upper Tribunal in the present case. The case essentially concerned the jurisdiction of the social security commissioners (predecessors of the Upper Tribunal in the present case) under section 101 of the Social Security Act 1975, pursuant to which an appeal lay from a decision of a social security appeal tribunal if the decision was "erroneous in point of law". There it was accepted on behalf of the Secretary of State that if the secondary legislation in question was in excess of the regulation-making powers and thus ultra vires, a decision giving effect to it was "erroneous in point of law". The issue was whether that phrase in section 101 had by necessary implication to be given a restricted meaning so as to exclude errors of law through misuse by the Secretary of State of his regulation-making power (see per Lord Bridge of Harwich at 762F-G).
  88. At 766H-767B, Lord Bridge determined that the commissioners did have jurisdiction under section 101:
  89. "My conclusion is that the commissioners have undoubted jurisdiction to determine any challenge to the vires of a provision in regulations made by the Secretary of State as being beyond the scope of the enabling power whenever it is necessary to do so in determining whether a decision under appeal was erroneous in point of law. I am pleased to reach that conclusion for two reasons. First, it avoids a cumbrous duplicity of proceedings which could only add to the already over-burdened list of applications for judicial review awaiting determination by the Divisional Court. Secondly, it is, in my view, highly desirable that when the Court of Appeal, or indeed your Lordships House, are called upon to determine an issue of the kind in question they should have the benefit of the views upon it of one or more of the commissioners, who have great expertise in this somewhat esoteric area of the law."
  90. This case does not concern the jurisdiction of the Upper Tribunal in that sense, nor is it a case where any issue arises as to the vires of the relevant Regulation. Foster, which precedes the enactment of the Human Rights Act by some years, seems to me to have no bearing on whether the Upper Tribunal was entitled to make the Order it did in the present case.
  91. It follows that I consider that the Upper Tribunal decision exceeded what was permissible and should have limited itself to determining that Regulation B13 as it stood was incompatible with Convention rights and that to the extent that the first respondent had suffered any loss as a consequence, his remedy lay in bringing a claim for damages in the civil courts under section 8(2) of the Human Rights Act. The answer to the conclusion of the Upper Tribunal that this would render any remedy for violation of Convention rights ineffective or illusory is the twofold one which Mr Eadie QC gave: (i) that is clearly what Parliament intended by providing that the remedy of damages under section 8(2) could only be awarded by a court and the executive has not chosen to expand the powers of tribunals under section 7(11) to enable them to award damages; and (ii) in the present case, because the first respondent had received DHPs to make up the shortfall in housing benefit, he would not appear to have suffered any loss as a consequence of the violation which would sound in damages under section 8(2). Whilst as the Supreme Court held in Carmichael, that is not an answer to whether or not there was a violation, it seems to me that it is an answer to whether or not the first respondent requires a remedy beyond a declaration that Regulation B13 as originally enacted was incompatible with his Convention rights. He does not, in marked contrast to Mr Mathieson.
  92. For these reasons, I would allow the appeal of the Secretary of State.
  93. Lord Justice Leggatt:

  94. I agree with Flaux LJ that the appeal should be allowed. But, in respectful disagreement with him, I would reject the Secretary of State's first ground of appeal and would allow the appeal only on the second and narrower ground.
  95. The MA case

  96. The starting point for any analysis is that in R (MA) v Secretary of State for Work and Pensions [2016] UKSC 58; [2016] 1 WLR 4550 the Supreme Court has already held that, in this very case, there has been a violation of Mrs Carmichael's right under article 14 of the European Convention on Human Rights, to enjoy the Convention rights without discrimination. The violation occurred when on 5 March 2013 the second respondent to this appeal (Sefton Council) issued a benefit decision notice to the first respondent (Mr Carmichael) stating that, although his gross rent was £88.21 a week, his eligible rent for the purpose of calculating his entitlement to housing benefit under the Housing Benefit Regulations 2006 was only £75.86. The reason for the 14% deduction was that the accommodation rented by Mr Carmichael had two bedrooms and under the Regulations he and his wife were only entitled, as a couple, to one bedroom. This was despite the fact that Mrs Carmichael, who is severely disabled, cannot share a bedroom with her husband because of her disabilities.
  97. The decision of the Supreme Court in the MA case built on an earlier decision of the Court of Appeal in Burnip v Birmingham City Council [2012] EWCA Civ 629; [2013] PTSR 117, in which the application of the Housing Benefit Regulations was found to discriminate unlawfully against severely disabled individuals in three cases. In one of those cases, Gorry v Wiltshire Council, the claimant was paid housing benefit on the basis that only one bedroom was required for "two children of the same sex", despite the fact that Mr Gorry's two daughters were severely disabled making it inappropriate for them to share a bedroom. The Court of Appeal held that in that case (and in the other two cases before them) there had been discrimination contrary to article 14 of the European Convention.
  98. In the case of MA, the nub of the reasoning relating to Mrs Carmichael is at [42] to [49] of the judgment of Lord Toulson JSC (with whom the other Justices agreed). In summary, it was held that: (i) Burnip and Gorry were cases where there was "a transparent medical need for an additional bedroom" and hence "no reasonable cause to apply the same cap on HB as if the bedrooms were truly under-occupied" ([42]); and (ii) there was no objective reasonable justification for treating Mrs Carmichael less favourably than a child in like circumstances, i.e. a child in the Gorry situation ([44] and [46]).
  99. The result of the Supreme Court's decision is that, in calculating the entitlement of Mr Carmichael to housing benefit, to treat Mrs Carmichael as not requiring a separate bedroom violated article 14. Accordingly, in so far as the Housing Benefit Regulations required the housing benefit payable to Mr Carmichael to be reduced below the amount that would have been payable if his wife had been treated as requiring an additional bedroom, giving effect to the Regulations was incompatible with her Convention rights.
  100. The issues in this case

  101. Following on from the Supreme Court's decision, the two issues in the present proceedings are: (1) whether the First-tier Tribunal, and hence the Upper Tribunal, have the power to order Sefton Council to recalculate Mr Carmichael's entitlement to housing benefit without making the 14% deduction for under-occupancy so as not to violate Convention rights; and (2) if so, whether to exercise that power. The Upper Tribunal gave affirmative answers to both questions and made an order for Mr Carmichael's housing benefit entitlement to be recalculated without making the 14% under-occupancy deduction.
  102. The Secretary of State has appealed against that decision on the two grounds which Flaux LJ has set out at [29] above. In short, the Secretary of State argues on this appeal: (1) that the First-tier Tribunal and the Upper Tribunal have no power to "disapply" legislation which violates Convention rights; and (2) that, even if they have that power, the Upper Tribunal in any event erred in making the order it did by failing to have regard to other payments which Mr Carmichael has received to make up for the reduction in his housing benefit.
  103. Issue 1: did the Upper Tribunal have power to "disapply" the legislation?

  104. I think it important to analyse exactly why it is that, in the submission of the Secretary of State, the First-tier Tribunal and the Upper Tribunal are bound to apply legislative provisions which violate Convention rights.
  105. Primary and subordinate legislation

  106. At certain points in the Secretary of State's written and oral submissions, it seemed to be suggested that, in cases where giving effect to subordinate legislation such as the Housing Benefit Regulations has been found to be incompatible with a Convention right, a court or tribunal is nevertheless bound as a matter of constitutional principle to apply the legislation as it stands until it is amended by Parliament to remove the incompatibility. For example, it was said in the Secretary of State's skeleton argument that the primary ground of appeal is jurisdictional and that the First-tier Tribunal (and hence the Upper Tribunal) has no jurisdiction to order payment of state benefits on terms other than provided by the legislature.
  107. Such a contention, however, could not be sustained because it disregards the distinction between primary and subordinate legislation. That distinction is carefully drawn in the Human Rights Act 1998 precisely in order to respect the sovereignty of Parliament. Thus, section 3(1) of the Act provides that, so far as it is possible to do so, all legislation must be read and given effect in a way that is compatible with the Convention rights. If this is not possible, then, in the case of incompatible primary legislation, a court (though not a tribunal) may make a declaration of incompatibility: see section 4(1) and (2). The same applies to provisions of subordinate legislation if primary legislation prevents removal of the incompatibility: see section 4(3) and (4). Pursuant to section 4(6)(a), a declaration of incompatibility "does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given".
  108. The position is different, however, in the case of provisions of subordinate legislation which are incompatible with Convention rights and where such incompatibility is not inherent in the enabling primary legislation. In relation to such provisions there is no power to make a declaration of incompatibility, but none is needed because there is no constitutional objection to declining to enforce or give effect to such provisions in so far as they are incompatible with Convention rights. Indeed, section 6(1) of the Act obliges a court or tribunal to do this by providing that it is unlawful for a public authority to act in a way which is incompatible with a Convention right, unless (broadly speaking) it is required to do so by a provision in primary legislation: section 6(2). A court or tribunal is a public authority for this purpose: section 6(3). Thus, the duty which the court would otherwise have to give effect to subordinate legislation (which is not ultra vires) is overridden by the Human Rights Act.
  109. In the present case it has been established by the decision of the Supreme Court in the MA case that, in applying the Housing Benefit Regulations as they stood in March 2011 to calculate Mr Carmichael's entitlement to housing benefit, Sefton Council acted in a way which was incompatible with a Convention right. The Secretary of State accepts that making the 14% deduction for under-occupancy was not necessitated by any primary legislation, nor were the provisions of the Housing Benefit Regulations to which the Council was giving effect in making the deduction made under primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights. Section 6(2) is therefore not applicable in this case. Accordingly, the legislative provisions which the Council was applying were provisions of subordinate legislation of a kind which a court or tribunal is entitled and indeed obliged by section 6(1) of the Human Rights Act not to enforce or apply in so far as the provisions are incompatible with a Convention right.
  110. Jurisdiction of the First-tier Tribunal and Upper Tribunal

  111. Another way of understanding the Secretary of State's submission that the First-tier Tribunal and the Upper Tribunal have no jurisdiction to order payment of state benefits on terms other than those provided by the legislature could be as a submission about the forum in which a challenge to the validity of subordinate legislation can be made. The argument might be that the First-tier Tribunal and the Upper Tribunal have no power when dealing with claims for state benefits to treat subordinate legislation as invalid in so far as it is incompatible with a Convention right, and that such a determination can only be made by the High Court on an application for judicial review (or by the Upper Tribunal when it is exercising its separate judicial review jurisdiction).
  112. Again, however, such an argument could not be sustained, for two reasons. First, it would be inconsistent with the decision of the House of Lords in Chief Adjudication Officer v Foster [1993] AC 754, which held that the statutory authorities with responsibility for dealing with claims for state benefits (which at the time consisted of adjudication officers, social security appeal tribunals and commissioners) have jurisdiction to decide whether a provision in subordinate legislation is invalid because ultra vires if it is necessary to do so in order to determine whether a claimant is entitled to a benefit. That decision is an example of the general principle established by cases such as Boddington v British Transport Police [1999] 2 AC 143 that the validity of a public law act or decision can be questioned in any proceedings where the determination of that issue is necessary in order to establish the existence of a private right. It cannot in principle make a relevant difference that the invalidity is said to arise because the act or decision is unlawful by reason of the Human Rights Act rather than because it is outside the powers conferred by the enabling legislation. Second, the point is in any case placed beyond doubt by section 7(1)(b) of the Human Rights Act, which states in terms that a person who claims that a public authority has acted in a way which is made unlawful by section 6(1) may (provided he is a victim of the unlawful act) "rely on the Convention right or rights concerned in any legal proceedings" (my emphasis).
  113. Thus, I did not understand the Secretary of State to dispute that the First-tier Tribunal and the Upper Tribunal can, when a claimant's entitlement to a state benefit depends on it, decide whether it is or would be unlawful to apply a provision of subordinate legislation because doing so is or would be incompatible with a Convention right.
  114. The Secretary of State's argument

  115. The position of the Secretary of State on analysis, therefore, is not that the First-tier Tribunal and the Upper Tribunal have no jurisdiction to decide that a statutory regulation is invalid because it is incompatible with Convention rights where such a determination is necessary in order to establish whether the claimant is entitled to a state benefit. The case put forward, as I understand it, is a narrower one that it is not possible to "disapply" the Housing Benefit Regulations in the present case so as to reach the conclusion that Mr Carmichael has been underpaid housing benefit without re-writing the regulations, which is something that a court or tribunal is not competent to do. It was submitted that the only ways in which the discrimination in Mr Carmichael's case could be avoided are either by treating particular words of the Regulations as having no effect, which would produce arbitrary results in other cases, or by adding an additional category of person entitled to a separate bedroom, which a court has no power to do. It was further submitted that, unless and until the legislation is amended, the only remedy potentially available to a person whose Convention right has been violated through the application of the legislation is to bring a claim for damages (in a court which has the power to grant such relief) under section 8 of the Human Rights Act.
  116. This argument assumes that, in a case where giving effect to a provision of subordinate legislation is unlawful by reason of section 6(1) of the Human Rights Act, it is not permissible for a court or tribunal simply to treat the provision as having no effect in the particular case. Such an approach is characterised as "devising an individual solution" and is said to be improper. Rather, according to the Secretary of State's argument, it is only permissible for a court or tribunal not to apply a provision of subordinate legislation in an individual case if it can be said that the provision in question is invalid in every case and for all purposes and can therefore be treated as though it is not contained in the legislation. On this theory, unless the court or tribunal is able to conclude that part of the legislation is capable of being excised in this way without producing inappropriate results in other cases, the court or tribunal is bound to apply the legislation as it stands even when doing so is unlawful by reason of section 6(1) of the Human Rights Act.
  117. The position in principle

  118. In my view, this argument is misconceived. There is no reason in principle why a court or tribunal which finds that applying subordinate legislation in the case before it has violated or would violate a Convention right and is therefore unlawful under section 6(1) of the Human Rights Act should not treat the legislation as invalid and of no effect – or, if the term is preferred, "disapply" the legislation – in that particular case without it being necessary to decide whether applying the provision in other cases would violate Convention rights or making any wider declaration of invalidity. Indeed, that is what section 6(1) of the Act in my view clearly requires.
  119. Even in a case where subordinate legislation is held to be ultra vires, it is not necessary to identify words which can be deleted with an imaginary blue pencil in order to find that the legislation is invalid and unenforceable only in some cases, provided that its invalidity in those cases does not substantially change the purpose, operation and effect of the legislation. That was established by the decision of the House of Lords in Director of Public Prosecutions v Hutchinson [1990] 2 AC 783. In so holding, the case to which Lord Bridge (with whose speech the other law lords agreed) attached most significance was an earlier decision of the House of Lords in Daymond v Plymouth City Council [1976] AC 609. In the Daymond case a statutory instrument required a rating authority to collect a charge referable to sewerage services "from every person who is liable to pay the general rate in respect of a hereditament". A householder whose property was not connected to a sewer brought an action for a declaration that the charging provision did not apply to him. The House of Lords held that, under the enabling legislation, there was no power to impose the charge on an occupier whose house was not connected to a sewer. There was no suggestion in any of the speeches that any particular part of the text could be severed or that the invalidity of the charging provision in relation to properties not connected to sewers affected the validity of the legislation in relation to properties which were not so connected: see the Hutchinson case [1990] 2 AC 783, 810-811.
  120. In cases under the Human Rights Act, the potential for such an "individual solution" is built into the scheme of the Act. Section 6(1) applies to an "act" of a public authority and not to legislative provisions as such. What is made unlawful by section 6(1) is for a public authority to give effect to or enforce legislative provisions when to do so is incompatible with a Convention right. There is no requirement that the provision(s) which have that effect in the instant case should also have that effect in other cases or should be capable of severance.
  121. Not giving effect to provisions of subordinate legislation in an individual case where to do so would violate a Convention right does not involve "re-writing" the legislation. It shows a proper respect for constitutional boundaries by leaving it to Parliament or to the Secretary of State with delegated legislative authority to decide what changes to make to avoid further violations of Convention rights.
  122. The position on authority

  123. As well as being contrary to principle and to the scheme of the Human Rights Act, the Secretary of State's argument is also inconsistent with binding authority.
  124. In Francis v Secretary of State for Work and Pensions [2005] EWCA Civ 1303; [2006] 1 WLR 3202 the claimant obtained a residence order which gave her parental responsibility for a child and applied for a maternity grant under regulations which made such grants available to mothers with low incomes. Although the claimant otherwise satisfied the conditions for a grant, her application was refused on the ground that she did not come within any of the categories of person eligible for the grant under the regulations. The Court of Appeal held that the refusal of a grant constituted a breach of article 14 of the Convention because it treated the claimant less favourably than a person with parental responsibility pursuant to an adoption order, without a rational justification. Sir Peter Gibson (with whom Moore-Bick and Auld LJJ agreed) did not think it possible to construe the regulations as including a person given parental responsibility by a residence order, as this would involve re-writing the regulations to include this new category (see [31] of the judgment). In these circumstances the Court of Appeal agreed with the claimant's submission that the appropriate remedy was to grant a declaration that she was entitled to a maternity grant and otherwise to allow the Secretary of State to decide how best to reformulate the regulations so as to exclude for the future the discrimination which had been identified (ibid). In other words, the Court of Appeal simply disapplied the regulations in so far as their application violated her Convention right in the claimant's individual case without quashing any provision of the regulations or declaring it to be invalid in all cases.
  125. A similar approach was taken by the House of Lords on an appeal from Northern Ireland in In re P and others [2008] UKHL 38 (also reported as In re G (Adoption: Unmarried Couple) [2009] 1 AC 173). That case concerned an unmarried couple who wished to adopt a child but were prevented from doing so by a statutory order in council which provided that an adoption order could be made on the application of more than one person only if the applicants were a married couple. It was held by the House of Lords (by a majority of 4:1) that this provision discriminated against the applicants on grounds of marital status, that there was no objective justification for the difference in treatment, and that the legislation was therefore incompatible with their rights under articles 8 and 14 of the Convention. The remedy granted the House of Lords was to declare that, notwithstanding the provisions of the relevant statutory instrument, the applicants were entitled to apply to adopt the child (see [38]). There was no suggestion that this result could or should be reached by severing particular words of the legislation. The House of Lords simply disapplied the legislation insofar as it was incompatible with the applicants' rights. As Lord Hoffmann explained (at [3]):
  126. "If the 1987 Order were primary legislation, section 6(2) [of the Human Rights Act 1998] would require the court nevertheless to give effect to it. But the Order is not primary legislation as defined in section 21(1) of the 1998 Act and is therefore overridden by Convention rights."

    Baroness Hale also explained the position clearly when she said at [116]:

    "The courts are free simply to disregard subordinate legislation which cannot be interpreted or given effect in a way which is compatible with the Convention rights. Indeed, in my view this cannot be a matter of discretion. Section 6(1) requires the court to act compatibly with the Convention rights if it is free to do so."
  127. A similar approach was adopted in Burnip v Birmingham City Council, mentioned earlier. In that case the Court of Appeal considered that they should follow the course taken in the Francis case and should go no further than to grant declaratory relief, leaving it to the Secretary of State to decide how to amend the Housing Benefit Regulations so as to eliminate for the future the discrimination which had been found: [2013] PTSR 117 at [24]. The form of declaration made by the Court of Appeal, which was agreed between the parties, is set out in the judgment of the Upper Tribunal in the present case at [16], and was as follows:
  128. "The decision in each case is remitted to the [relevant council] in each case to be remade in accordance with the Court of Appeal's judgment. Each appellant is entitled to have their case reassessed by the [council], and to receive from the [council] payment of such further sum (in addition to any discretionary housing payment or other relevant payment already made) as is necessary to comply with this judgment and article 14 for the period to which the appeal relates."
  129. Thus, the Court of Appeal treated the Housing Benefit Regulations as having no effect in the three individual cases before them in so far as applying the Regulations in calculating the claimants' entitlement to housing benefit violated their Convention rights by treating them as under-occupying their accommodation. There is no material distinction between the situation in those cases and the situation in the present case where making a deduction from housing benefit for under-occupancy has once again been found to violate a claimant's rights under article 14 of the Convention. Accepting the Secretary of State's argument in the present case would therefore require us to find that the approach adopted by the Court of Appeal in the Burnip case was unlawful and that the order made was one which the court had no power to make.
  130. The cases of Francis and In re P and the approach adopted in those cases were referred to with approval by Lord Reed in R (T) v Chief Constable of Greater Manchester Police [2015] AC 254 at [153], though in that particular case the approach was not apt as the operation of the relevant subordinate legislation did not involve any act of a public authority.
  131. Most recently, the same approach was once again adopted by the Supreme Court in Mathieson v Secretary of State for Work and Pensions [2015] UKSC 47, [2015] 1 WLR 3250. The facts of that case and relevant parts of the judgments have been set out by Flaux LJ at [22]-[24] above. In short, the Supreme Court concluded that the Secretary of State had acted in a way that was unlawful under section 6(1) of the Human Rights Act by suspending payment of the claimant's disability living allowance (DLA) after he had been in hospital for 84 days. This was held to violate the claimant's rights under article 14 of the Convention because depriving him of that allowance treated him less favourably than children who were in hospital for shorter periods without any objective justification for that discrimination.
  132. The basic rule established by the applicable statutory regulations was that DLA was not payable for any period during which a person was maintained free of charge while undergoing medical or other treatment as an in-patient in an NHS hospital. However, the regulations provided that, in the case of a person aged under 16, this rule did not apply for the first 84 days of any such period. There was no way of extending the 84 day period either generally or in a particular case without re-writing the regulations. Nor did the Supreme Court think it right to declare the regulation which established the basic rule as invalid in all circumstances with the result that there was no power to suspend DLA in any case. Those were matters for the Secretary of State to consider. What the Supreme Court instead did was simply to hold that it was unlawful to suspend the payment of DLA in the claimant's individual case and that he was entitled to continue to receive payments after 84 days.
  133. On behalf of the Secretary of State, Mr Eadie QC submitted that the decision in the Mathieson case does not reflect a consistent line of authority and that the case should be seen as a one-off case turning on its own particular facts. I agree with Flaux LJ that, apart from the Burnip case, the other decisions on which Mr Drabble QC relied are not directly in point. However, when account is also taken of the decision of the Court of Appeal in Francis v Secretary of State for Work and Pensions and the decision of the House of Lords in In re P, as well as the Burnip and the Mathieson cases, there is in my view a clear and consistent line of authority which demonstrates that the Secretary of State's argument is unsustainable. Even if there were no other decisions to similar effect, however, that would not detract from the authority of the Mathieson case. The doctrine of precedent does not operate on the basis that the Court of Appeal is only bound by decisions of the Supreme Court if they form part of a consistent line of authority. A single decision of that court suffices. Nor is it justifiable to decline to follow a decision of a higher court on the ground that the case turned on its own particular facts, unless particular facts on which the case turned are identified which provide a material distinction from the facts of the case at hand. Mr Eadie could not point to any such distinction and I think it clear that – subject to the point raised by the second issue on this appeal, which I will consider shortly – there is no material distinction between the facts of the Mathieson case and the facts of the present case.
  134. I also reject the submission that the Supreme Court does not appear to have considered any constitutional implications of the remedy it adopted. On the contrary, I think it clear that careful consideration has been given in [49] of Lord Wilson's judgment and [61] of the judgment of Lord Mance to the respective roles of the courts and of the minister with responsibility for formulating and amending the relevant subordinate legislation. It was precisely because the Supreme Court was astute not to trespass into the legislative sphere that it confined the remedy granted to the case of the individual claimant whose Convention rights had been violated. If it be said that the reasoning on the subject of remedy in the Mathieson case is brief, that is in my view explained by the fact that the remedy granted by the Supreme Court in that case was entirely orthodox and unproblematic.
  135. For these reasons, I would reject the Secretary of State's first ground of appeal and hold that the First-tier Tribunal and the Upper Tribunal had the power, and indeed the duty, to disapply and treat as having no effect in this case provisions of the Housing Benefit Regulations in so far as those provisions, when applied in calculating the housing benefit payable to Mr Carmichael, violated a Convention right and are therefore overridden by the Human Rights Act.
  136. Issue 2: did the Upper Tribunal wrongly fail to take account of discretionary payments?

  137. It does not follow, however, from the fact that Sefton Council, the First-tier Tribunal and the Upper Tribunal were required not to give effect to the Housing Benefit Regulations in so far as their application was inconsistent with a Convention right that the Upper Tribunal was bound to make the order that it did for Mr Carmichael's housing benefit entitlement to be recalculated. In a case where a court or tribunal has found that a public authority has acted in a way which was unlawful under section 6 of the Human Rights Act, the decision whether to grant a remedy and, if so, what remedy to grant involves an exercise of a discretion. That is clear from section 8(1) of the Act, which states:
  138. "In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate."
  139. In a case where a state benefit has been calculated in a way which violates a claimant's Convention right and the claimant has in consequence received less money than he or she was legally entitled to receive, it would ordinarily be just and appropriate for a tribunal to redress that wrong by ordering the benefit to be recalculated in a lawful way. That would result in the claimant being paid the difference between their entitlement as recalculated and as previously assessed. It is a feature of the present case, however, that, although Mr Carmichael's housing benefit was reduced by 14% with effect from 5 March 2015 on the ground of under-occupancy, he received discretionary housing payments from Sefton Council which (so we and the Upper Tribunal were told) made up the shortfall. In these circumstances it appears that Mr Carmichael has suffered no financial loss. If, therefore, the Council is simply ordered to recalculate Mr Carmichael's housing benefit entitlement without making the 14% deduction in accordance with the Upper Tribunal's order, it is unclear whether the Council will be entitled, or will seek, to withhold payment of the underpaid housing benefit on the ground that Mr Carmichael has already received an equivalent sum in discretionary housing payments which he would not have received in the absence of the 14% deduction. On his behalf, Mr Drabble QC naturally wishes to reserve the right to argue that the Council has no right to recoup discretionary housing payments already made to Mr Carmichael which would enable such payments to be set off against his recalculated entitlement to housing benefit. But if that is correct, or if the Council would not think it cost-effective to litigate the point, then the effect of the order made by the Upper Tribunal, if upheld by this court, will be that Mr Carmichael will receive double provision. On the one hand, he will now be paid an additional sum in housing benefit but, on the other hand, he will also get to keep the money he has previously received in lieu of that additional payment. That would manifestly not be a just result.
  140. The fact that Mr Carmichael has already received discretionary housing payments also distinguishes this case from the Mathieson case. In my view, this is the only material distinction between the facts of the two cases. In the Mathieson case the claimant had not received any alternative discretionary payments to compensate, partly or at all, for the suspension of his disability living allowance. In consequence, his family suffered a loss of about £7,000 and, in order to help meet the shortfall in the absence of any assistance from the state, they had had to borrow money from friends: see [2015] 1 WLR 3250 at [14]. Had the facts been that the claimant had suffered no loss because he had received discretionary payments to make up for the shortfall in his DLA, I cannot conceive that the Supreme Court would have thought it just and appropriate to grant a remedy which would result in him receiving double payment.
  141. The Upper Tribunal appears to have proceeded in [62] of its judgment from the conclusion that it had the power to order that Mr Carmichael's housing benefit entitlement be recalculated if, in its view, it was just and appropriate to do so to the further conclusion that it should exercise the power without making allowance for the discretionary housing payments that Mr Carmichael has received. The only consideration of those payments is in [13] and [59] of the judgment, where the Upper Tribunal referred to the fact that in the cases of Burnip and MA it was held that discretionary housing payments did not justify the discrimination identified in those cases in the calculation of housing benefit. I agree with Mr Eadie's submission that this reasoning confuses the question of whether there was an objective justification for the discrimination with the question of the appropriate remedy to grant if there was no such justification. It also seems to me to overlook the fact that the order made by Court of Appeal in the Burnip case (quoted at [93] above) expressly required credit to be given when the cases were reassessed for "any discretionary housing payment or other relevant payment already made".
  142. I think it clear that, in exercising its discretion under section 8(1) of the Human Rights Act in the present case, the Upper Tribunal erred in law by disregarding the fact that Mr Carmichael had received discretionary housing payments and in wrongly treating this as a matter which the Court of Appeal had previously held to be irrelevant, when that is not the case. This court should therefore exercise the discretion afresh. Although we were told that Mr Carmichael has received discretionary housing payments, there is no evidence of this fact before the court and it is not clear whether such payments fully made up for the unlawful reduction in his housing benefit. The order that in these circumstances I would think it just and appropriate to make is that Mr Carmichael's housing benefit should be recalculated without making the under-occupancy deduction of 14% and payment should be made to him of the difference (if any) between (a) the recalculated amount and (b) the amount of housing benefit already received plus any discretionary housing payments or other relevant payments which he would not have received if the deduction had not been made during the relevant period.
  143. Sir Brian Leveson P:

  144. The Upper Tribunal was clearly correct to conclude that it was impermissible for the First-tier Tribunal to write words into Regulation B13(5)(a) so as to provide housing benefit without the deduction of 14% where one member of a couple was unable to share a bedroom because of his or her disability or the disability of the other member of that couple and I agree with Flaux LJ, for the reasons that he gives, that it was equally impermissible to excise words from the Regulation in order to achieve the same result. The effect of both is to change the language (and meaning) of legislation and it is not inconceivable that different litigants each with their own circumstances would seek to persuade the tribunal to modify the language of the Regulation in different ways to achieve the result best suited to their situation.
  145. In reality, the First Respondent achieved the result that he wished (in relation to the compatibility of the Regulation) by the decision of the Supreme Court and it is significant that no attempt was made in that litigation to obtain damages (which would have been a remedy open to the court to grant) doubtless because of the credit that would have to have been allowed for the discretionary housing payments received specifically because of his personal circumstances which, incompatibly with his Convention rights, had deprived him of benefits which he would otherwise have received. Neither do I accept that, had it declined to interpret the Regulation as it did, the Upper Tribunal would have contravened s. 6(1) of the Human Rights Act 1998: by awarding the appropriate sum as calculated in accordance with the Regulation B13 while declaring that calculation incompatible on the grounds of contravention of Article 14 of the ECHR does not give effect to the discrimination.
  146. I also agree with Flaux LJ that the remedy fashioned by the Supreme Court in Mathieson was a pragmatic solution (described as "for the sake of clarity" by Lord Wilson and "tailor made" by Lord Mance) designed to avoid further litigation in relation to what, in the context of the costs of the litigation, was a modest sum while, at the same time, preserving legislative choice as to the best way of amending the Regulations to avoid incompatibility with Convention rights in all circumstances. Neither does Burnip assist: Maurice Kay LJ (at [24]) was clear that it was for the Secretary of State to deal with the rectification of the discrimination. The fact that the order (agreed by the parties) went further provides no authority for the proposition that the decision authorised such a course.
  147. Furthermore, if I am wrong about the effect of Burnip, it is difficult to see why that part of the order which required credit to be given when the cases were reassessed for "any discretionary housing payment or other relevant payment already made" does not then equally bite. In that way, at least, it would ensure that there would be no difference between the effect of awarding damages (had they been sought in the Supreme Court) and the decision in the Upper Tribunal.
  148. In these circumstances, I would also allow this appeal.


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