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

A tribunal cannot remedy discrimination in the bedroom-size criteria for housing benefit by reading additional words into Housing Benefit Regulations 2006, regulation B13. Where the statutory scheme has that discriminatory effect, the available remedy is not a direction recalculating benefit contrary to the regulation, but the remedy identified under the Human Rights Act 1998.

A tribunal decision granting a couple an additional bedroom on that basis must therefore be set aside where binding authority establishes that such a direction would rewrite, rather than disapply, the legislation. Discretionary housing payments may be recoverable if a later superior-court decision shows that payment was made in error, although that observation was not necessary to the result.

The Secretary of State appealed two First-tier Tribunal decisions concerning a 14% reduction in eligible rent under regulation B13 of the Housing Benefit Regulations 2006. DL and RR each lived with a severely disabled partner and contended that disability prevented the couple from sharing a bedroom.

In each case, the First-tier Tribunal held that the reduction was unlawfully discriminatory and treated the legislation as allowing a separate bedroom for each member of the couple. The proceedings were stayed pending the related litigation culminating in SSWP v Carmichael and Anor [2018] EWCA Civ 548. Following that decision, both claimants accepted that the Secretary of State’s appeals had to succeed.

The central issue was whether the Upper Tribunal could uphold a recalculation of housing benefit which achieved compatibility with Convention rights by adding to the statutory bedroom criteria.

1. The Secretary of State’s appeals were allowed. The Upper Tribunal set aside both First-tier Tribunal decisions, dismissed DL’s and RR’s appeals, and upheld the local authorities’ 14% reductions in eligible rent.

2. The cases were indistinguishable from SSWP v Carmichael and Anor [2018] EWCA Civ 548. The judge was bound by the majority reasoning in that case. A direction that a couple should receive an additional bedroom by treating regulation B13 of the Housing Benefit Regulations 2006 as containing further words would impermissibly rewrite the legislation. The remedy for the incompatibility identified in the related litigation lay in proceedings under section 8(2) of the Human Rights Act 1998, not in a benefit tribunal’s substituted calculation.

3. The point that DL had not received discretionary housing payments did not arise from the binding primary reasoning. RR had received such payments, but that did not permit the case to be distinguished from Carmichael.

4. Obiter, the judge considered that, if an Upper Tribunal decision had established entitlement to mainstream housing benefit for a period covered by discretionary housing payments, regulation 8(2)(b) of the Discretionary Financial Assistance Regulations 2001 might permit recovery of the discretionary payments. A superior court’s decision on an error of law states the law as it always was, and any mainstream benefit entitlement could potentially be offset against the recoverable payments.

5. The judge also stated that any application for a leap-frog certificate was governed by sections 14A–14C of the Tribunals, Courts and Enforcement Act 2007, not section 12 of the Administration of Justice Act 1969. The applicable time limit was in The Supreme Court Practice Direction 3, which the Upper Tribunal could not extend.

• Upper Tribunal (Administrative Appeals Chamber): The Secretary of State’s appeals were allowed. Both First-tier Tribunal decisions were set aside, and the local authorities’ 14% eligible-rent reductions were upheld.
• First-tier Tribunal: On 11 May 2015, DL’s appeal was allowed on the basis that the substituted housing-benefit decision unlawfully discriminated because disability prevented the couple sharing a bedroom.
• First-tier Tribunal: On 12 August 2014, RR’s appeal was allowed after the tribunal treated the housing-benefit legislation as permitting a bedroom for each member of the disabled couple.