FL v Secretary of State for Work and Pensions

Tribunals must not apply subordinate legislation that unlawfully breaches Convention rights where it can be disapplied without acting contrary to primary legislation.

Where disapplication is not possible, the tribunal must not perpetuate the unlawfulness. On an appeal involving an unlawful benefit decision, the Upper Tribunal may set aside the First-tier Tribunal’s decision and remake or remit the underlying decision so that the Secretary of State decides the claimant’s entitlement lawfully.

A proposed remedy must address the provision causing the breach. It cannot remove an unrelated eligibility condition if doing so would fundamentally re-engineer the statutory scheme.

The claimant moved from Scotland to England and was required to migrate naturally from income-related employment and support allowance and child tax credit to universal credit. Her entitlement fell because she lost transitional protection for the enhanced disability premium, despite receiving a severe disability premium transitional payment.

The First-tier Tribunal dismissed her appeal, holding that her universal credit had been calculated correctly under the regulations. Permission to appeal was granted on the basis that the Tribunal might have failed to address the discriminatory effect of the regulations and the appropriate remedy.

By the time of the Upper Tribunal hearing, the parties accepted that the claimant’s circumstances were on all fours with TP (No.3), in which the absence of transitional relief for loss of the enhanced disability premium had been declared discriminatory. The central issue was the appropriate remedy.

1. Appeal allowed. The First-tier Tribunal had erred in law by upholding a decision applying regulations which, following TP (No.3), were unlawfully discriminatory in their application to the claimant. Its decision was set aside under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007.
2. The basic principle, confirmed in TS (by TS) and JN, is that a tribunal determines entitlement under lawful legislation. Subordinate legislation affected by a public law error must be disapplied unless the tribunal is prohibited from doing so by statute. This includes regulations that are irrational or incompatible with Convention rights.
3. Under RR, a court or tribunal must disregard incompatible subordinate legislation where that is possible and primary legislation does not prevent removal of the incompatibility. The court’s role is not to choose between competing legislative policies or to level down lawful entitlement.
4. The claimant’s proposed disapplication of regulation 48 was rejected. The discriminatory treatment identified in TP (No.3) arose from regulation 63 and Schedule 2, not regulation 48. Regulation 48 had not been held unlawful. Removing its migration-notice requirement would also collapse the distinction between natural and managed migration, undermine the scheme, and potentially produce double recovery.
5. Although disapplication was therefore unavailable, the Upper Tribunal could not remake the decision on the same unlawful basis. Applying JN and RR, it allowed the underlying appeal, set aside the Secretary of State’s decision of 25 October 2019 as unlawfully discriminatory, and remade the First-tier Tribunal’s decision.
6. The Secretary of State must redecide the claimant’s entitlement to universal credit for the period beginning 13 July 2018 on a lawful basis.

• First-tier Tribunal (Social Entitlement Chamber): On 21 October 2020, dismissed the claimant’s appeal and confirmed the Secretary of State’s decision that her universal credit entitlement had been correctly calculated.
• Upper Tribunal (Administrative Appeals Chamber): Allowed the appeal, set aside the First-tier Tribunal’s decision for error of law, allowed the underlying appeal, set aside the Secretary of State’s decision as unlawfully discriminatory, and directed a lawful redetermination.