The man at the centre of the case, RR, lives with his severely disabled partner in a two-bedroomed rented social housing property for which he claims housing benefit. They require separate bedrooms because of her disabilities and her need to accommodate medical equipment and supplies.
In 2013, his local authority, Sefton Borough Council, applied the discount to his housing benefit required by Regulation B13 of the Housing Benefit Regulations 2006. Regulation B13 governed the removal of the spare room subsidy, otherwise known as the “bedroom tax”. The Council decided that, because they were a couple, they were only entitled to one bedroom and thus applied the 14% discount.
RR appealed to the First-tier Tribunal (‘FTT’) in August 2014, which found that he had suffered unjustified discrimination. To avoid this discrimination the FTT held Regulation B13(15)(a) should be read as to apply to persons in RR’s position, pursuant to s.3 of the Human Rights Act 1988.
The respondent Secretary of State appealed to the Upper Tribunal (‘UT’). The appeal was stayed while a similar appeal by Carmichael v Secretary of State for Work and Pensions proceeded to the UT and then to the Court of Appeal. The UT held that the FTT’s reading of the Regulation was impermissible but reached the same result by holding that the decision to make a deduction from Mr. Carmichael’s housing benefit was a clear breach of his Convention rights, contrary to s.6.1 of the Human Rights Act.
Carmichael was heard before the Supreme Court on 9 November 2016. The Court declared that where there was a “transparent medical need for an additional bedroom”, which was not catered for in Regulation B13(5) and (6), there was unjustified discrimination on the ground of disability, contrary to Article 14 of the European Convention on Human Rights.
The principle question in RR’s case was the effect of the Carmichael decision on decision-makers in the housing benefit system, i.e. local authorities and the two tribunals that are to hear appeals against the local authorities.
A second issue was whether account should be taken of any discretionary housing payments (‘DHPs’) received by the claimant during the period, if the deduction to housing benefit should not have been applied.
The UT granted RR a “leapfrog certificate” under section 14A of the Tribunals, Courts and Enforcement Act 2007, enabling him to appeal directly from the UT to the Supreme Court (i.e. leapfrogging the Court of Appeal) if given permission to do so. This was granted on 11 February 2019.
The Supreme Court unanimously upheld RR’s appeal against the local authority’s decision. It ordered that RR’s housing benefit was to be recalculated without making the under-occupancy deduction of 14%, in order to avoid a breach of RR’s rights under the Convention, contrary to s.6.1 of the Human Rights Act.
Reading out her judgement, Lady Hale said: “The Human Rights Act is an act of the United Kingdom parliament and takes precedence over subordinate legislation such as the Regulation in question… this means that incompatible subordinate legislation must simply be ignored”.
Click here for the judgement in full.