The Supreme Court has allowed an appeal, upholding an order of the Upper Tribunal that the Appellant’s Housing Benefit should be calculated without deduction of the “bedroom tax”. The case is important for 2 reasons:
- It clarifies the position for couples such as the appellant after the decision in R (Carmichael) v Secretary of State for Work and Pensions  UKSC 58 in the Supreme Court (also concerned with the “bedroom tax”) and the Housing Benefit and Universal Credit (Size Criteria) (Miscellaneous Amendments) Regulations 2017 (the regulations were not retrospective).
- It clarifies the position of the exception in s.6(2) as to subordinate legislation and sets down the approach that a public authority must take if the result of following the subordinate legislation would be a breach of Convention rights.
The appellant lives with his severely disabled partner in a two-bedroom property, for which he claims Housing Benefit. The local authority decided that, as they were a couple, they were only entitled to one bedroom (reg. B13(5)(a) of the Housing Benefit Regulations 2006) and applied the “bedroom tax” to his Housing Benefit claim as of 1 April 2013.
The appellant was successful in challenging this decision in the First-Tier Tribunal, which found that the appellant and his partner required separate bedrooms as a result of his partner’s disabilities and that the appellant had been unjustifiably discriminated against as a member of a couple with a disability. To avoid such discrimination, the tribunal applied s.3(1) Human Rights Act 1998 and found that reg. B13(5)(a) should be read so as to entitle a couple who could not share a bedroom because of the disability of one of them, to two bedrooms.
The local authority successfully appealed to the Upper Tribunal.
The appellant was allowed to “leapfrog” his appeal from the Upper Tribunal to the Supreme Court. He argued that under s.6(1) of the Human Rights Act 1998, it was unlawful for a local authority or tribunal to apply the reduction required by reg. B13 in breach of his Convention rights.
The Supreme Court held that application of the “bedroom tax” to the appellant would be acting in a way that was incompatible with his Convention rights, (contrary to s.6(1) HRA 1998) and his Housing Benefit entitled should be re-calculated without deduction.
It also held that s.6(2) HRA 1998, which provided an exception to s.6(1) for acts which were required by primary legislation, did not apply to acts which were required by subordinate legislation. A public authority was required to disregard a provision of subordinate legislation which resulted in a breach of Convention rights unless it was impossible to do so.