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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> The Secretary of State for Work And Pensions v Carmichael & Anor [2018] EWCA Civ 548 (20 March 2018) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2018/548.html Cite as: [2018] EWCA Civ 548, [2018] WLR 3429, [2018] WLR(D) 176, [2018] 1 WLR 3429 |
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ON APPEAL FROM THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
MR JUSTICE CHARLES, UT JUDGE LLOYD-DAVIES, UT JUDGE WIKELEY
2017 UKUT 0174 (AAC)
Strand, London, WC2A 2LL |
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B e f o r e :
(SIR BRIAN LEVESON)
LORD JUSTICE FLAUX
and
LORD JUSTICE LEGGATT
____________________
THE SECRETARY OF STATE FOR WORK AND PENSIONS |
Appellant |
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- and - |
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JAYSON CARMICHAEL & SEFTON COUNCIL |
Respondents |
____________________
Mr Richard Drabble QC (instructed by Leigh Day) for the 1st Respondent
Hearing date: Tuesday 20 February 2018
____________________
Crown Copyright ©
Lord Justice Flaux:
Introduction
Factual and procedural background
"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."
"(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."
.…"
"(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).
"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.)".
"(za) a member of a couple who cannot share a bedroom;
(zb) a member of a couple who can share a bedroom;".
"(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."
The Decision of the Upper Tribunal
"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)."
"…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."
"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."
"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."
"…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."
"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
(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
"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."
"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."
Analysis and conclusions
"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."
"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."
"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."
"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].
"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."
"My conclusion is that the commissioners have undoubted jurisdiction to determine any challenge to thevires
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."
Lord Justice Leggatt:
The MA case
The issues in this case
Issue 1: did the Upper Tribunal have power to "disapply" the legislation?
Primary and subordinate legislation
Jurisdiction of the First-tier Tribunal and Upper Tribunal
The Secretary of State's argument
The position in principle
The position on authority
"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."
"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."
Issue 2: did the Upper Tribunal wrongly fail to take account of discretionary payments?
"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."
Sir Brian Leveson P: