Secretary of State for Work and Pensions v Carmichael & Anor (HB)

Where secondary legislation produces an unjustified breach of a claimant’s Convention rights, and primary legislation does not require that result, a statutory tribunal must provide an effective, case-specific remedy when determining lawful benefit entitlement. It must not itself act incompatibly with the Convention.

A tribunal may not use Human Rights Act 1998 section 3(1) to read words into subordinate legislation beyond permissible interpretation. It may instead set aside the unlawful decision and direct that the incompatible deduction be disregarded in calculating entitlement. That individual remedy does not prevent the executive and Parliament from devising a generally applicable legislative solution.

Mr Carmichael appealed Sefton Council’s decision to reduce his housing benefit by 14% under the social housing size criteria. He and his severely disabled wife occupied a two-bedroom flat but could not share a bedroom. The First-tier Tribunal allowed the appeal by reading additional words into regulation B13(5)(a) of the Housing Benefit Regulations 2006 under section 3(1) of the Human Rights Act 1998.

The Secretary of State appealed on the Tribunal’s jurisdiction. Following the Supreme Court’s decision 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, it was accepted that applying the deduction to these facts breached article 14 read with article 8. The central issue was the remedy available to the First-tier Tribunal during the period before legislative amendment.

1. The Secretary of State’s appeal was nominally allowed. The First-tier Tribunal had erred in using section 3(1) of the Human Rights Act 1998 to add words to regulation B13(5)(a) of the Housing Benefit Regulations 2006. That construction went beyond permissible interpretation.

2. The Tribunal nevertheless reached the correct substantive outcome. The Supreme Court had established that applying the social housing size criteria to this disabled couple breached article 14 read with article 8. Regulation B13 was subordinate legislation and the primary statutory scheme did not compel that incompatibility.

3. A tribunal is a public authority for section 6(1) purposes and may not act incompatibly with Convention rights. Section 6(2) did not excuse application of the reduction. The claimant was also entitled under section 7(1)(b) to rely on his Convention rights in the statutory benefit appeal. Requiring a separate damages claim would make that right ineffective.

4. Following Mathieson v Secretary of State for Work and Pensions [2015] UKSC 47, the proper remedy was to allow the appeal, set aside the local authority’s decision, and determine entitlement without the unlawful reduction. The Tribunal could direct payment based on the eligible rent without the 14% deduction, or disapply the relevant operation of regulation B13(2)(b) and (3) in this individual case.

5. The decision was set aside and remade. Mr Carmichael’s appeal against Sefton Council succeeded, and his housing benefit was to be recalculated without the 14% under-occupancy deduction.

• Upper Tribunal (Administrative Appeals Chamber): Nominally allowed the Secretary of State’s appeal, set aside the First-tier Tribunal’s decision for legal error, and remade it so that the claimant’s appeal against the local authority succeeded.
• First-tier Tribunal: On 9 April 2014, allowed the claimant’s appeal by reading additional words into regulation B13(5)(a) of the Housing Benefit Regulations 2006 under section 3(1) of the Human Rights Act 1998.
• Sefton Council: On 5 March 2013, applied a 14% under-occupancy deduction to the claimant’s housing benefit.