RR v Secretary of State for Work and Pensions

The Supreme Court held that decision-makers, including local authorities and tribunals, must not apply subordinate legislation in a way that would make them act incompatibly with Convention rights under section 6(1) of the Human Rights Act 1998. Where subordinate legislation (here regulation B13 of the Housing Benefit Regulations 2006) produces an unjustified difference in treatment established as discriminatory under article 14 read with article 8, a decision-maker is required to calculate entitlement without applying the incompatible provision if that can be done without distorting the statutory scheme.

The Court relied on section 3 and section 6 of the Human Rights Act 1998 and previous authorities (including Mathieson, Burnip, Gorry and Francis) to conclude that subordinate legislation which causes a breach of Convention rights can be disregarded by a public authority or tribunal where primary legislation does not prevent removal of the incompatibility. The appeal was allowed and RR's housing benefit was to be recalculated without applying the 14% under-occupation deduction.

Background and parties: RR, living with his severely disabled partner in two-bedroom social housing, appealed a local authority decision that applied regulation B13 to reduce his housing benefit by 14% from 1 April 2013. The issue arose after this Court's decision in R (Carmichael) v Secretary of State for Work and Pensions [2016] UKSC 58 identified aspects of regulation B13 as discriminating on grounds of disability.

Procedural history: The First-tier Tribunal found discrimination and sought to read the regulation compatibly. The Upper Tribunal considered itself bound by the Court of Appeal decision in Carmichael (CA) and allowed the Secretary of State's appeal ([2018] UKUT 355 (AAC)). RR obtained a leapfrog certificate and this Court granted permission to appeal.

Nature of the claim / relief sought: The appellant sought an order that housing benefit for the period in question be recalculated without the under-occupation deduction, on the basis that applying the deduction would breach his Convention rights.

Issues framed:

• whether a local authority, the First-tier Tribunal or the Upper Tribunal must continue to apply regulation B13 in its original form for periods before the 2017 amendments, even where that would breach Convention rights; and
• whether any discretionary housing payments received by the claimant should be taken into account when recalculating entitlement.

Reasoning and conclusions: The Court analysed the distinction drawn in the Human Rights Act 1998 between primary and subordinate legislation (notably sections 3 and 6). It concluded that where subordinate legislation cannot be given effect compatibly with Convention rights, and primary legislation does not prevent removal of the incompatibility, decision-makers must treat the incompatible provision as having no effect for the purposes of the individual decision. The Court relied on authorities applying the same principle in the benefits context (Mathieson, Burnip, Gorry, Francis and JT). It rejected the argument that tribunals could not give relief other than by awards of damages under section 8 of the HRA, holding that recalculation of benefit without the deduction was an appropriate remedial measure available to the decision-maker when correcting an unlawfully incompatible application of subordinate legislation. On the secondary issue, the Court held that neither the local authority nor the tribunals were permitted, when remaking the decision, to take into account discretionary housing payments because those were not circumstances existing at the time of the decision appealed against; recovery or other action in relation to DHPs was for the local authority to consider separately.

Practical outcome: The appeal was allowed and RR's housing benefit was to be recalculated without making the 14% under-occupation deduction for the period in question.

Appeal allowed. The Supreme Court held that subordinate legislation which would cause a public authority or tribunal to act incompatibly with Convention rights must be treated as having no effect for the purposes of the individual decision where primary legislation does not prevent removal of the incompatibility. Applying that principle, RR's housing benefit entitlement was to be recalculated without the 14% under-occupation deduction because making that deduction would have been a clear breach of his Convention rights under section 6(1) of the Human Rights Act 1998. The court also held that discretionary housing payments received after the date of the challenged decision were not matters the tribunal could take into account when remaking the original decision.

The appeal to the Supreme Court came from the Upper Tribunal ([2018] UKUT 355 (AAC)), which had allowed the Secretary of State's appeal against the First-tier Tribunal. RR was granted a leapfrog certificate under section 14A of the Tribunals, Courts and Enforcement Act 2007 enabling direct appeal to the Supreme Court. Earlier related appeals and proceedings include Carmichael (UT) [2017] UKUT 174 (AAC) and the Court of Appeal decision Secretary of State for Work and Pensions v Carmichael [2018] EWCA Civ 548.