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United Kingdom Supreme Court |
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You are here: BAILII >> Databases >> United Kingdom Supreme Court >> RR v Secretary of State for Work and Pensions [2019] UKSC 52 (13 November 2019) URL: http://www.bailii.org/uk/cases/UKSC/2019/52.html Cite as: [2019] UKSC 52, [2020] HLR 8, (2020) 171 BMLR 37, [2019] WLR 6430, [2019] WLR(D) 638, [2019] 1 WLR 6430, [2020] 2 All ER 477 |
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THE COURT ORDERED that no one shall publish or reveal the name or address of the Appellant who is the subject of these proceedings or publish or reveal any information which would be likely to lead to the identification of the Appellant or of any member of his family in connection with these proceedings.
[2019] UKSC 52
On appeal from: [2018] UKUT 355 (AAC)
JUDGMENT
RR (Appellant) v Secretary of State for Work and Pensions (Respondent)
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before
Lady Hale, President Lord Reed, Deputy President Lady Black Lord Briggs Lady Arden
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JUDGMENT GIVEN ON |
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13 November 2019 |
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Heard on 3 July 2019 |
Appellant |
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Respondent |
Richard Drabble QC |
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Sir James Eadie QC |
Matthew Fraser |
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Edward Brown |
(Instructed by Leigh Day) |
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(Instructed by The Government Legal Department) |
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Intervener (1) |
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Dan Squires QC |
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Chris Buttler |
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(Instructed by Equality and Human Rights Commission (Manchester)) |
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Interveners (2) |
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Martin Chamberlain QC |
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Tom Royston |
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Jennifer MacLeod |
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(Instructed by Herbert Smith Freehills LLP) |
Interveners:
(1) Equality and Human Rights Commission
(2) Liberty, Child Poverty Action Group and Public Law Project
LADY HALE: (with whom Lord Reed, Lady Black, Lord Briggs and Lady Arden agree)
1. On 9 November 2016, this Court handed down judgment in the series of cases collectively reported as R (Carmichael) v Secretary of State for Work and Pensions [2016] UKSC 58; [2016] 1 WLR 4550 (“Carmichael (SC)”). This was a judicial review of the regulations governing the removal of the spare room subsidy, otherwise known as the “bedroom tax”. Regulation B13 of the Housing Benefit Regulations 2006 (first introduced in 2013) required a percentage reduction in the eligible rent for social sector housing if the number of bedrooms in the property exceeded the number defined by regulation B13(5) and (6) as appropriate for the size of the household living there. This Court held that where there was “a transparent medical need for an additional bedroom” not catered for in regulation B13(5) and (6) there was unjustified discrimination on the ground of disability and thus a violation of the claimant’s rights under article 14 read with article 8 of the European Convention on Human Rights. Mrs Carmichael could not share a bedroom with her husband because of her disabilities, but whereas the regulation catered for children who could not share a bedroom for that reason, it did not cater for a couple who could not do so. Mr and Mrs Rutherford cared for their grandson who needed an overnight carer because of his disabilities, but whereas the regulation catered for adults who needed an overnight carer, it did not cater for children who did so. In both cases, the relief granted was a declaration that the claimant had suffered discrimination contrary to article 14 of the Convention: see Carmichael (SC) above and R (Rutherford) v Secretary of State for Work and Pensions [2016] EWCA Civ 29; [2016] HLR 8.
The history
5. The appellant, RR, lives with his severely disabled partner in a two-bedroomed rented social housing property for which he claims housing benefit. The respondent local authority, Sefton Borough Council, applied regulation B13 and decided that, because they were a couple, they were only entitled to one bedroom and so applied the 14% discount required by regulation B13(3)(a) with effect from 1 April 2013. RR appealed to the FTT. On 15 August 2014, the FTT found as a fact that RR and his partner required separate bedrooms because of her disabilities and her need to accommodate medical equipment and supplies. Sefton accepted that, as her primary carer, RR needed to be able to get a night’s sleep. The FTT further held that RR had suffered discrimination as between a member of a couple with a disability and a member of a couple without disability which could not be objectively and reasonably justified. To avoid this discrimination, the FTT held, applying the interpretative obligation in section 3(1) of the Human Rights Act 1998 (“the HRA”), that regulation B13(5)(a) should be read so as to apply either to a couple or to one member of a couple who could not share a bedroom because of the disability of one of them.
7. Mr Carmichael’s appeal was determined by the UT in April 2017: Secretary of State for Work and Pensions v Carmichael [2017] UKUT 174 (AAC) (“Carmichael (UT)”). The UT held that the FTT’s reading of regulation B13(5)(a) was impermissible but nevertheless reached the same result by holding that Mr Carmichael’s housing benefit was to be calculated without making the 14% deduction because to make it would be a clear breach of his Convention rights, contrary to section 6(1) of the HRA.
8. The Secretary of State appealed the Carmichael (UT) decision to the Court of Appeal and that Court stayed the appeal in RR and some 130 other cases (referred to as the “Carmichael/Rutherford lookalike cases”) pending the outcome of that appeal. The Court of Appeal gave judgment on 20 March 2018: Secretary of State for Work and Pensions v Carmichael [2018] EWCA Civ 548; [2018] 1 WLR 3429 (“Carmichael (CA)”). The appeal was allowed. The majority (Sir Brian Leveson PQBD and Flaux LJ) held that the UT did not have power to direct as it did, as this would amount to an impermissible rewording of the regulation: any remedy for the violation of Convention rights was to be found in an action for damages under section 8(2) of the HRA. Leggatt LJ dissented: he would have held that the UT did have power to do what it did. However, he also held that the UT had erred in not taking into account the DHPs that Mr Carmichael had received. So the Court was unanimous in allowing the Secretary of State’s appeal. Mr Carmichael has not appealed to this Court. Nevertheless, this case is effectively a challenge to that decision.
9. The stay on the Secretary of State’s appeal to the UT in the case of RR (and another) was lifted on 4 May 2018. RR accepted that the UT was bound by Carmichael (CA) to allow the appeal, which by a decision dated 28 August 2018, it duly did: Secretary of State for Work and Pensions v RR and Sefton Borough Council [2018] UKUT 355 (AAC). The UT also commented that it seemed “eminently arguable” the problem of double payment, identified by Leggatt LJ, could be overcome by reason of regulation 8(2)(b) of the Discretionary Financial Assistance Regulations 2001 (SI 2001/1167).
The evolution of regulation B13
“(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) …
(b) where the number of bedrooms in the dwelling exceeds the number of bedrooms to which the claimant is entitled in accordance with paragraph (5), reducing that amount by the appropriate percentage set out in paragraph (3); …
(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.
(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;
(c) two children of the same sex;
(d) two children who are less than ten years old;
(e) a child,
and one additional bedroom in any case where the claimant or the claimant’s partner is a person who requires overnight care (or in any case where each of them is).”
“(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.”
A “person who requires overnight care” was defined in regulation 2(1) in terms which had the effect of not including any child. The inclusion of claimants or their partners who required overnight care in the original and amended regulation was as a result of the decision of the Court of Appeal in Burnip v Birmingham City Council [2012] EWCA Civ 629; [2013] PTSR 117.
13. The next amendment (made by SI 2013/2828 in December 2013) added to the list in paragraph (5):
“(ba) a child who cannot share a bedroom;”
This was as a result of the decision of the Court of Appeal in Gorry v Wiltshire County Council, decided at the same time as Burnip and reported with it. The category of adults whose disabilities might count for the purpose of paragraph (6) was also expanded to include people responsible for the rent and their partners.
The arguments on the principal issue
18. Mr Drabble is able to pray in aid at least two decisions at the level of this Court which support that analysis. Closest to it is Mathieson v Secretary of State for Work and Pensions [2015] UKSC 47; [2015] 1 WLR 3250. The regulations governing entitlement to disability living allowance (“DLA”) suspended the entitlement of a child under 16 after the first 84 days of free in-patient treatment in an NHS hospital. This Court held that, in the circumstances of that case, to suspend entitlement was a violation of the child’s Convention rights under article 14 read with article 1 of the First Protocol. The Secretary of State was not obliged by any provision of primary legislation to suspend payment; thus he had acted unlawfully under section 6(1) of the HRA in deciding to do so. The FTT should have allowed the child’s appeal against that decision and substituted a decision that he was entitled to continued payment of DLA from the date when it was suspended until the date when it was reinstated. This Court allowed the child’s appeal and made the order which the FTT should have made.
21. The Mathieson approach had previously been applied in a number of other benefit cases. In Francis v Secretary of State for Work and Pensions [2005] EWCA Civ 1303; [2006] 1 WLR 3202, the regulations governing entitlement to a maternity grant were held incompatible with the Convention rights of a woman who had obtained a residence order giving her parental responsibility for her sister’s baby son, because they treated the holder of a residence order less favourably that the holder of an adoption order. The remedy was not to construe the regulations in her favour but to make a declaration that she was entitled to the maternity grant. In Burnip v Birmingham City Council [2012] EWCA Civ 629; [2013] PTSR 117, mentioned earlier, the Court of Appeal remitted each case where a violation had been found to the local authority for the decision to be remade in accordance with the Court of Appeal’s judgment. Each claimant was entitled to such further sum as was necessary to comply with the judgment and article 14. As Leggatt LJ explained in Carmichael (CA), at para 94, “Thus, the Court of Appeal treated the Housing Benefit Regulations as having no effect in the three individual cases before them insofar as applying the Regulations in calculating the claimants’ entitlement to housing benefit violated their Convention rights by treating them as under-occupying their accommodation.”
22. A further example of the application of the same approach, albeit in a rather different context, is the decision of the House of Lords in In re G (Adoption: Unmarried Couple) [2008] UKHL 38; [2009] AC 173. Article 14 of the Adoption (Northern Ireland) Order 1987 (SI 1987/2203) provided that an adoption order could only be made in favour of more than one person if they were married to one another. The House of Lords held that this discrimination between married and unmarried couples was irrational and in breach of article 14 read with article 8 of the Convention. The remedy was a declaration that this particular couple were entitled to apply to adopt the child. Had the Order been primary legislation, the courts would have been bound to give effect to it: the most they would have done was to make a declaration of incompatibility under section 4 of the HRA. But, at para 116, it was explained that:
“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.”
23. A more recent example of the same approach is JT v First-tier Tribunal [2018] EWCA Civ 1735; [2019] 1 WLR 1313. This concerned a rule in the criminal injuries compensation scheme which barred victims who had suffered injury before 1979 from making a claim if at the time of the injury they were living under the same roof as the perpetrator. The Court of Appeal held that this was incompatible with article 14 read with article 1 of the First Protocol and granted a declaration that the claimant was not prevented by the rule from being paid an award of compensation under the scheme. As Leggatt LJ explained, at para 122:
“Where, as here, a provision of subordinate legislation cannot be given effect in a way which is compatible with a Convention right and there is no primary legislation which prevents removal of the incompatibility, the court’s duty under section 6(1) is to treat the provision as having no effect, as to give effect to it would be unlawful.”
Conclusions on the principal issue
“(a) applies to primary and subordinate legislation whenever enacted;
(b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and
(c) does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents the removal of the incompatibility.”
Once again, a clear distinction is drawn between primary and subordinate legislation.
32. As that great judge, Lord Bingham of Cornhill, put it in Attorney General’s Reference (No 2 of 2001) [2003] UKHL 68; [2004] 2 AC 72, 92, “I cannot accept that it can ever be proper for a court, whose purpose is to uphold, vindicate and apply the law, to act in a manner which a statute (here, section 6 of the Human Rights Act 1998) declares to be unlawful”.
The secondary issue
“Taking the simple case of an appeal against a decision on an initial claim, in our view the appeal tribunal has power to consider any issue and make any decision on the claim which the decision-maker could have considered and made. The appeal tribunal in effect stands in the shoes of the decision-maker for the purpose of making a decision on the claim.”
In deciding a housing benefit appeal, the FTT is not permitted to take into account any circumstances not obtaining at the time when the decision appealed against was made: Child Support, Pensions and Social Security Act 2000, Schedule 7, paragraph 6(9). The task of the UT was the same. In remaking the decision having set aside the decision of the FTT, it has power to make any decision which the FTT could make if the FTT were remaking the decision: Tribunals, Courts and Enforcement Act 2007, section 12(4).
Final conclusion
35. I would allow this appeal. I would make the same order as the UT made in Carmichael (UT) that (1) the appeal against the local authority’s decision of 5 March 2013 is allowed; and (2) that RR’s housing benefit entitlement is to be recalculated without making the under-occupancy deduction of 14%. The reason for doing so is the same as that which the UT gave: “if the tribunal or the council were to apply this deduction there would be a clear breach of [RR’s] Convention rights, contrary to section 6(1) of the Human Rights Act 1998 (R (Carmichael) v Secretary of State for Work and Pensions [2016] UKSC 58; [2016] 1 WLR 4550).”