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On 13 November 2019, the Supreme Court gave judgment in RR v Secretary of State for Work and Pensions [2019] UKSC 52. The case is about how to remedy a breach of rights under the European Convention on Human Rights due to the application of the “bedroom tax” in regulation B13 of the Housing Benefit Regulations 2006. The judgment was written by Lady Hale, the President of the Supreme Court, with whom Lord Reed, Lady Black, Lord Briggs and Lady Arden agreed. It addresses significant constitutional questions about the separation of powers, the correct interpretation of the HRA, and the powers and duties of public authority decision-makers. The Supreme Court had previously found elements of the “bedroom tax” to be unlawful in R (Carmichael) v Secretary of State for Work and Pensions [2016] 1 WLR 4550. Although the law was amended to address the unlawfulness, the change was not retrospective, leaving around 130 cases in the housing benefits system with no remedy. The principle issue in the case concerned the powers and duties of decision-makers in the housing benefit system (local authorities, the FTT and the UT) when dealing with claims relating to periods before the regulations were amended. The Supreme Court said [3]: “Do they have to carry on applying the regulation in its original form? Or do they have to calculate housing benefit without making the percentage deduction in cases where to do so will breach the Convention rights of the claimants … ? This is an important constitutional question.” The Secretary of State for Work and Pensions argued that [24]: “It was not for the local authority or the tribunals to redesign the legislative scheme so as to render it compatible with the Convention rights. That would be constitutionally inappropriate, usurping the role of the legislator. It was also outside their statutory powers.” The only remedy was to bring a claim for damages in court. The Secretary of State’s argument was accepted by a majority in the Court of Appeal (Sir Brian Leveson PQBD and Flaux LJ, with Leggatt LJ dissenting): Secretary of State for Work and Pensions v Carmichael [2018] 1 WLR 3429. The Appellant contended that it was unlawful under section 6 of the Human Rights Act 1998 (“HRA”) for the decision-maker to apply the “bedroom tax” so as to breach Convention rights. Whereas section 6 protects decision-makers in cases where the decision is mandated by primary legislation, the unlawfulness in regulation B13 was not so mandated. The Supreme Court accepted the Appellant’s submissions, holding at [27]: “There is nothing unconstitutional about a public authority, court or tribunal disapplying a provision of subordinate legislation which would otherwise result in their acting incompatibly with a Convention right, where this is necessary in order to comply with the HRA. Subordinate legislation is subordinate to the requirements of an Act of Parliament. The HRA is an Act of Parliament and its requirements are clear.” The Supreme Court also accepted the Appellant’s arguments on a secondary issue, which concerned the relevance of the payment of discretionary housing payments (“DHPs”) to the decision on housing benefit entitlement. The Court held at [34]: “… neither the initial decision-maker in the local authority, nor the FTT on appeal, nor the UT on appeal, was concerned with anything other than entitlement to housing benefit. They were not concerned with DHPs and had no power to take them into account.” The judgment is available here. Richard Drabble QC and Matthew Fraser acted for the Appellant, instructed by Leigh Day.
