The Secretary of State for Work And Pensions v Carmichael & Anor

A tribunal cannot rewrite subordinate legislation to cure incompatibility with Convention rights by adding or excising words. Section 6(1) of the Human Rights Act 1998 does not require a tribunal to exceed its existing powers or ignore the statutory scheme. A case-specific remedy may be appropriate in an individual case, but it cannot become a general legislative solution for a class of benefit claimants. When exercising the remedial discretion under section 8(1), the tribunal must account for discretionary payments already received. Recalculation without credit for those payments may produce double recovery and is not just or appropriate.

The appeal concerned Mr Carmichael’s housing benefit. His wife was severely disabled and could not share a bedroom with him. Sefton Council applied a 14% under-occupancy deduction under the Housing Benefit Regulations 2006.

The First-tier Tribunal inserted additional words into Regulation B13(5)(a). The Upper Tribunal set that decision aside but directed that the benefit be recalculated without the deduction: 2017 UKUT 0174 (AAC). In separate judicial-review proceedings, the Supreme Court had held that the application of the regulations violated Article 14 read with Article 8: [2016] UKSC 58. The issues were whether the tribunals had power to disapply the regulation and, if so, whether they had properly considered discretionary housing payments.

By a majority, the appeal was allowed. Flaux LJ gave the leading judgment and Sir Brian Leveson P agreed. Leggatt LJ disagreed on the first ground but agreed that the appeal should be allowed on the second.

1. The First-tier Tribunal’s insertion of words into Regulation B13(5)(a) was impermissible. The Upper Tribunal’s proposed excision of the 14% deduction was materially the same. Both approaches rewrote the Housing Benefit Regulations 2006 and exceeded the interpretative obligation under section 3 of the Human Rights Act 1998.
2. Although a tribunal hearing a statutory appeal may make any decision available to the original decision-maker, it must calculate entitlement by reference to the regulations in force at the relevant time. Section 6(1) did not require the tribunal to exceed its existing powers or disregard the statutory language. A declaration that the regulation was incompatible would not itself give effect to the discrimination.
3. The Supreme Court’s decision in Mathieson v Secretary of State for Work and Pensions, [2015] UKSC 47, concerned a tailor-made remedy limited to the individual claimant. It did not authorise a tribunal to devise a general solution applicable to a substantial class of claimants. The choice of legislative remedy remained for Parliament.
4. Under section 8(1), the choice of relief was discretionary and had to be just and appropriate. Since discretionary housing payments had apparently made good the shortfall, the Upper Tribunal erred by disregarding them. The appropriate remedy was declaratory relief, with any claim for damages lying in a court having power to award them.

Leggatt LJ considered that section 6(1) required subordinate legislation to be disapplied in an individual case where its application violated a Convention right. He relied on Francis, In re P, Burnip and Mathieson, but accepted that the discretionary housing payments had to be credited to avoid double recovery. His reasoning on the first ground was not the majority holding.

1. Court of Appeal (Civil Division): Appeal from the Upper Tribunal allowed. The tribunal’s order requiring recalculation without the 14% deduction was held impermissible, and the discretionary payments had to be taken into account.
2. Upper Tribunal (Administrative Appeals Chamber): The First-tier Tribunal’s decision was set aside, but the appeal was allowed and housing benefit was directed to be recalculated without the deduction: 2017 UKUT 0174 (AAC).
3. First-tier Tribunal: The appeal against Sefton Council’s decision was allowed. Regulation B13(5)(a) was read as including a member of a couple unable to share a bedroom because of disability.