On 27 April 2017 the Upper Tribunal (‘UT’) handed down judgment in Secretary of State for Work and Pensions v Carmichael and Sefton BC (HB)  UKUT 0174 which was the Secretary of State’s appeal to of the First-tier Tribunal’s (‘FTT’) decision on the Carmichael’s ‘bedroom tax’ appeal.
In this post Alice Richardson considers the judgment and the wider implications for cases in which a court or tribunal holds that subordinate legislation is incompatible with convention rights.
Mrs Carmichael lived with her husband, Mr Carmichael, in a two-bedroom flat. She had spina bifida, hydrocephalus, double incontinence, inability to weight bear and recurring pressure sores. Mr Carmichael was her full time carer. She needed a special bed with an electronic mattress. She also needed a wheelchair beside the bed. Her husband could not share the same bed, and there needed to be adequate space for him and nurses to attend to her needs. There was not enough space for him to have a separate bed in the same room. Their rent was previously met in full by Housing Benefit, but it was reduced by 14 per cent under regulation B13 of the Housing Benefit Regulations 2006 (SI No 213) otherwise known as ‘the bedroom tax’ or ‘the spare room subsidy’ etc.
The First-tier Tribunal decision
On 9 June 2014 the FTT allowed the Carmichaels’ appeal holding that regulation B13 unfairly discriminated against disabled persons who needed an additional bedroom and that there was no objective and reasonable justification for the discrimination.
The decision was somewhat surprising given the Court of Appeal’s decision in the unsuccessful judicial review proceedings involving the Carmichael’s: R (MA and others) v The Secretary of State for Work and Pensions  EWCA Civ 13.
Further the FTT judge went on to read words into the regulations purportedly under section 3(1) of the Human Rights Act (HRA) 1998 in order to avoid a breach of Mr Carmichael’s human rights.
The Secretary of State sought permission to appeal that decision and the application was stayed pending the outcome of the Supreme Court decision in the judicial review proceedings.
The Supreme Court decision
On 9 November 2016 the Supreme Court held that the bedroom tax regulations were a breach of the Carmichaels’ human rights: R (MA and others) v The Secretary of State for Work and Pensions  UKSC 58 (our post here).
On the same day the Department for Work and Pensions had issued local authorities with a ‘Housing Benefit Urgent Bulletin’ advising local authorities that they ‘must continue to apply the rules when determining housing benefit claims as they did before today’s judgment’ and that ‘the Department is considering the Court’s judgment and will take steps to ensure it complies with its terms in due course’.
The Housing Benefit and Universal Credit (Size Criteria) (Miscellaneous Amendments) Regulations 2017 (SI No 213) were not laid before Parliament until 2 March 2017.
In our post on that decision we queried how tribunals were to deal with people in the same position as the Carmichaels and the Rutherfords pending the amended regulations because it was not open to the tribunal to read words into the regulations under HRA 1998 s3(1) (as the FTT judge in this case had already done).
The Upper Tribunal appeal
Given the decision of the Supreme Court it may seem surprising that the Secretary of State continued to pursue an appeal of the FTT decision. However, there remained the unresolved jurisdictional point framed as:
‘whether statutory tribunals have the jurisdiction to develop bespoke solutions to Convention violations (discrimination or otherwise) on a case by case basis’.
In other words, having found the regulations to amount to a convention violation, was the FTT still bound by them or was it entitled to dis-apply the regulations?
In the Upper Tribunal (UT) it was common ground between the parties that the FTT’s interpretation had not been open to it, since it went beyond any interpretative reading permitted by HRA 1998 s3(1).
The Secretary of State’s position was that in the period between a Court identifying a breach of Convention rights by the operation of secondary legislation (such as reg B13) and Parliament taking steps to rectify that incompatibility then ultimately a claimant’s only recourse to make good the consequential financial loss was to bring civil proceedings in a court for damages under HRA 1998 s8(2).
On the Carmichaels’ behalf it was argued that the approach taken in Mathieson v Secretary of State for Work and Pensions  UKSC 47 should apply. There was no obligation in the primary legislation to make the 14 per cent reduction; the requirement was contained in the secondary legislation. Mathieson demonstrated that in such circumstances the Tribunal should allow the appeal, set aside the offending decision by the initial decision-maker and substitute a decision that the claimant was entitled to the continued payment of benefit at a rate unaffected by the action which would otherwise be a breach of the claimant’s Convention rights.
The Upper Tribunal decision
The UT concluded that Mathieson applied and that courts and tribunals ultimately have the power to order that to the extent that subordinate legislation is incompatible with a person’s Convention rights it should not be given effect to in determining the person’s lawful entitlement, or should be otherwise applied or dis-applied in a way that does not breach the person’s Convention rights. That course of action was held to be a ‘relief or remedy’ which a court or tribunal may make ‘within its powers as it considers just and appropriate’ under HRA 1998 s8(1).
The FTT had arrived at the correct outcome but by the wrong route. The FTT should have directed the local authority to calculate the claimant’s housing benefit entitlement without making a deduction of 14 per cent for under occupancy to avoid an unlawful breach of the Carmichaels’ human rights. The result was the same, namely that no deduction operated.
The effects of this case are potentially far-reaching. While the appeal concerned only the Carmichaels’ appeal it was effectively the lead case in a block of some 170 further cases before the UT in England and Wales and around 40 cases pending in Scotland. It is not known how many other cases are pending before the FTT. However, implications of the decision would likely go further than Carmichael-like cases and bedroom tax cases: it effectively confirms that the FTT has powers far beyond what most practitioners previously understood to be the case.
Unsurprisingly the Secretary of State sought permission to appeal the decision. That application was refused by the UT and the DWP has announced that an application will be made to the Court of Appeal.
In the interim, the effect of the UT’s decision was apparently suspended for 28 days from 27 April 2017 (according to gov.uk) presumably leaving the 210+ block of cases in the UT, and however many are pending before the FTT, in limbo once again.