Man wins Supreme Court bedroom tax case

The court upheld an order by the Upper Tribunal that RR’s housing benefit should be recalculated without the 14% deduction from the bedroom tax because applying the deduction would breach his rights under the Human Rights Act.
 
The case answered an important constitutional question as to whether subordinate legislation like the regulations which provide for the bedroom tax could be disregarded where not doing so would result in a breach of human rights. In the context of Mr RR’s situation, the specific question was whether those making decisions on housing benefits, including local authorities and the First Tier Tribunal and Upper Tribunal, in claims relating to the period before the regulations were amended by the Supreme Court case brought by Jacqueline Carmichael in December 2016, have to carry on applying the regulation in its original form or whether they could calculate housing benefit without making the percentage deduction in order to avoid breaching Mr RR’s human rights. 
 
The unanimous ruling today confirms that the decision-makers must not make the bedroom tax deductions if the deductions would breach the claimant’s human rights. The five Supreme Court judges reaffirmed that where it is possible to do so, a provision of subordinate legislation (like the regulations in this case) which results in a breach of a right under the Human Rights Act must be disregarded.
 
RR lives with his severely disabled partner in a two-bedroomed rented social housing property for which he claims housing benefit. He continued the original legal case brought by Jayson and Jacqueline Carmichael. Both the Carmichaels and RR are represented by law firm Leigh Day.
 
The initial case was brought by Mr and Mrs Carmichael, who under the bedroom tax rules had only been allowed one bedroom. They argued in their legal case that they needed two bedrooms due to Mrs Carmichael’s medical condition.
 
Mr Carmichael successfully challenged the decision to apply the bedroom tax to his housing benefit allowance in the First-tier Tribunal (FTT) in 2014, but the government later successfully appealed that decision in the Court of Appeal in February 2018. 
 
Mrs Carmichael had been successful in the Supreme Court in a separate but related judicial review challenge of the bedroom tax regulations in December 2016. In this case, the Supreme Court found that the bedroom tax was unlawful when applied to couples who require an extra bedroom due to a medical need.  Despite this finding, the government still decided to press ahead with their appeal of Mr Carmichael's FTT case. They argued that the remedy given by the FTT - to disapply the bedroom tax to people with disabilities who need a second bedroom for medical reasons - is not one which could be provided by the FTT. When heard by the Upper Tribunal, the bench confirmed that the FTT had the power to provide a human rights remedy to benefits claimants, however, the Court of Appeal disagreed with this decision and found, with Lord Justice Leggatt dissenting, that the lower tribunals did not in fact have the power to provide such a remedy to benefit claimants.
 
Following the decision of the Court of Appeal, Mr and Mrs Carmichael did not feel able to pursue their housing benefit challenge to the Supreme Court, due to their personal circumstances.
 
Mr RR continued the challenge in the Supreme Court at a hearing in July 2019. 
 
In order to challenge the Upper Tribunal’s decision Mr RR successfully obtained a so-called “leapfrog certificate”, the first of its kind from the Upper Tribunal (Social Entitlement Chamber), which made it possible to apply for permission to appeal directly to the Supreme Court, rather than to go back to the Court of Appeal. 
 
Lucy Cadd, solicitor at law firm Leigh Day, who together with Carolin Ott represented Mr RR said:
 
This ruling is of great significance because it not only allows for the case of our client and that of the 130 couples whose cases were stayed behind it to be resolved with the social security tribunals disapplying the bedroom tax to ensure none of those individuals suffer a human rights breach, but also because it paves the way for decision-makers to avoid human rights breaches in other areas. 
 
Carolin Ott, from the human rights team at Leigh Day, added:
 
We are thrilled that the court took this important opportunity to confirm the powers of social security tribunals and local authorities to take steps to avoid breaches of human rights by disregarding secondary legislation where it is possible to do so, thereby ensuring that the welfare system can properly and fairly support disabled and other vulnerable people.