RR (AP) v Secretary of State for Work and Pensions
| Jurisdiction | England & Wales |
| Judge | Lady Hale,Lord Reed,Lady Black,Lord Briggs,Lady Arden |
| Judgment Date | 13 November 2019 |
| Neutral Citation | [2019] UKSC 52 |
| Court | Supreme Court |
| Date | 13 November 2019 |
[2019] UKSC 52
Lady Hale, President
Lord Reed, Deputy President
Lady Black
Lord Briggs
Lady Arden
Appellant
Richard Drabble QC
Matthew Fraser
(Instructed by Leigh Day)
Respondent
Sir James Eadie QC
Edward Brown
(Instructed by The Government Legal Department)
Intervener (1)
Dan Squires QC
Chris Buttler
(Instructed by Equality and Human Rights Commission (Manchester))
Interveners (2)
Martin Chamberlain QC
Tom Royston
Jennifer MacLeod
(Instructed by Herbert Smith Freehills LLP)
Interveners:
(1) Equality and Human Rights Commission
(2) Liberty, Child Poverty Action Group and Public Law Project
Heard on 3 July 2019
( with whom Lord Reed, Lady Black, Lord Briggs and Lady Arden agree)
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.
On 2 March 2017, the Secretary of State for Work and Pensions laid before Parliament the Housing Benefit and Universal Credit (Size Criteria) (Miscellaneous Amendments) Regulations 2017 (SI 2017/213) which were intended to cater for the two instances in which this Court had held that the previous version of regulation B13(5) and (6) led to violations of a Convention right. They came into effect on 1 April 2017 and were not retrospective.
The principal issue in this case is the effect of this Court's decision in Carmichael (SC) upon the decision-makers in the housing benefit system — the local authorities, responsible for the payment of housing benefit, and the First-tier Tribunal (“FTT”) and the Upper Tribunal (“UT”) hearing appeals from local authority decisions — in claims relating to periods before the regulations were amended. 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 in the way determined in the Carmichael and Rutherford cases? This is an important constitutional question.
A secondary issue is whether, if the housing benefit is to be calculated without the percentage deduction in such cases, account should be taken of any discretionary housing payments (“DHPs”) received by the claimant during the period in question.
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.
Meanwhile, in parallel to the judicial review proceedings which culminated in this Court's decision in Carmichael (SC), Mr Carmichael had appealed to the FTT against the local authority's decision that his housing benefit entitlement should be reduced by 14%. The FTT allowed his appeal on a similar basis to that on which it had allowed the appeal of RR. The Secretary of State's appeals against both decisions were stayed until the outcome of Carmichael (SC) was known. Both stays were lifted in January 2017.
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.
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.
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 UT granted RR a “leapfrog certificate” under section 14A of the Tribunals, Courts and Enforcement Act 2007, enabling him to appeal directly from the UT to this Court (leapfrogging the Court of Appeal) if given permission to do so. This Court granted permission on 11 February 2019.
In its original form, introduced by the Housing Benefit (Amendment) Regulations ( SI 2012/3040), regulation 5(7), the relevant parts of regulation B13 read as follows:
“(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...
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