RR v Secretary of State for Work and Pensions

A public authority, court or tribunal must disapply subordinate legislation where applying it would breach a Convention right, unless primary legislation requires the incompatible result. This follows from sections 3 and 6 of the Human Rights Act 1998.

Disapplication is permissible where the statutory scheme can operate without the offending provision. Where an unjustifiably discriminatory benefit rule gives one claimant less than a comparator, the decision-maker must level up the claimant’s entitlement if no legislative choice is required.

A social security tribunal determining an appeal against an initial benefit decision considers the claimant’s entitlement and circumstances at the date of that decision. It cannot reduce the resulting entitlement by reference to subsequent discretionary payments outside its jurisdiction.

The appellant lived with his severely disabled partner in two-bedroom social housing. They required separate bedrooms because of her disabilities and medical equipment. Sefton Borough Council nevertheless reduced his housing benefit by 14% under regulation B13 of the Housing Benefit Regulations 2006.

The First-tier Tribunal found unjustified disability discrimination and allowed his appeal by reading regulation B13 expansively under section 3(1) of the Human Rights Act 1998. After the Court of Appeal decided Secretary of State for Work and Pensions v Carmichael [2018] EWCA Civ 548, the Upper Tribunal considered itself bound to reverse that result: [2018] UKUT 355 (AAC). It certified a direct appeal to the Supreme Court.

The principal issue was whether benefit decision-makers and tribunals must apply incompatible subordinate legislation to pre-amendment claims. A secondary issue concerned the treatment of discretionary housing payments.

1. Appeal allowed unanimously. Lady Hale, with whom Lord Reed, Lady Black, Lord Briggs and Lady Arden agreed, held that the appellant’s housing benefit had to be recalculated without the 14% under-occupancy deduction.

2. There is nothing constitutionally improper about a public authority, court or tribunal disapplying subordinate legislation where applying it would be incompatible with a Convention right. Section 6(1) of the Human Rights Act 1998 makes incompatible conduct unlawful. The exceptions in section 6(2) apply where primary legislation requires the conduct. They did not apply because no primary legislation required regulation B13 to contain the discriminatory criteria.

3. The distinction between primary and subordinate legislation is reinforced by section 3(2). Incompatible primary legislation remains effective. Incompatible subordinate legislation must also remain effective where primary legislation prevents removal of the incompatibility. Otherwise a decision-maker must disregard the subordinate provision when necessary to comply with section 6(1).

4. The Court rejected the majority reasoning in Secretary of State for Work and Pensions v Carmichael [2018] EWCA Civ 548 and approved Leggatt LJ’s dissent. The authorities, including Mathieson v Secretary of State for Work and Pensions [2015] UKSC 47, established a consistent approach. Disapplication is possible where the remaining scheme can operate without the offending rule. Here housing benefit could simply be calculated without the under-occupancy deduction. No redesign of the legislative scheme or legislative choice was required.

5. Where a benefit difference is unjustifiably discriminatory, the decision-maker must level up the disadvantaged claimant when that is the only Convention-compliant application available. The appellant was therefore entitled to the unreduced benefit.

6. Discretionary housing payments could not be taken into account. The First-tier Tribunal had to decide whether the local authority’s initial decision was correct by reference to the circumstances then obtaining. Neither it nor the Upper Tribunal was deciding entitlement to discretionary payments. Any recovery of such payments was a separate matter for the local authority.

1. United Kingdom Supreme Court: The appeal was allowed unanimously. The appellant’s housing benefit was ordered to be recalculated without the 14% under-occupancy deduction: [2019] UKSC 52.

2. Upper Tribunal: Bound by the Court of Appeal’s decision in the related Carmichael proceedings, the tribunal allowed the Secretary of State’s appeal but granted a leapfrog certificate: [2018] UKUT 355 (AAC).

3. First-tier Tribunal: The tribunal allowed the claimant’s appeal. It found unjustified disability discrimination and sought to avoid it by reading regulation B13(5)(a) of the Housing Benefit Regulations 2006 expansively under section 3(1) of the Human Rights Act 1998.