The Secretary of State for Work and Pensions v Jayson Carmichael & Sefton Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Leggatt,Sir Brian Leveson P,Lord Justice Flaux |
| Judgment Date | 20 March 2018 |
| Neutral Citation | [2018] EWCA Civ 548 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 March 2018 |
| Docket Number | Case No: C3/2017/1457 |
[2018] EWCA Civ 548
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
THE PRESIDENT OF THE QUEENS BENCH DIVISION
( Sir Brian Leveson)
Lord Justice Flaux
and
Lord Justice Leggatt
Case No: C3/2017/1457
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 1 st Respondent
Hearing date: Tuesday 20 February 2018
Judgment Approved
Introduction
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.
Factual and procedural background
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.
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.”
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]:
“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.”
The terms of Regulation B13, so far as presently material, as it stood with effect from 1 April 2013, were 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) 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.”
.…”
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.
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.
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.
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,...
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