Supreme Court to hear ‘bedroom tax’ dispute over ability to disapply regulations to avoid human rights breaches
The Supreme Court will this week (3 July) hear an appeal on whether social security tribunals have the power or duty to calculate entitlement to housing benefit without making deductions for under-occupancy, where the application of regulations would breach claimants' rights under the Human Rights Act.
A man identified as RR has brought the case over the ‘bedroom tax’ continuing one brought originally by Jayson and Jacqueline Carmichael. Both have been represented by law firm Leigh Day.
Mr and Mrs Carmichael were allowed only one bedroom under the regulations but argued they needed two due to Mrs Carmichael’s medical condition.
In these cases, Mr Carmichael successfully challenged the reduction in his housing benefit at the First-tier Tribunal (FTT) in 2014, but the Government successfully appealed to the Court of Appeal in February 2018.
Mrs Carmichael was successful in the Supreme Court in a separate judicial review in which it found the bedroom tax was unlawful when applied to couples who require an extra bedroom due to a medical need.
Leigh Day said that, despite this finding, the Government still appealed Mr Carmichael's FTT decision on the ground that the remedy of disapplying the bedroom tax in such cases was one it could not provide.
The Upper Tribunal confirmed that the FTT had the power to provide a human rights remedy to benefits claimants, but the Court of Appeal then disagreed and found, with Leggatt LJ dissenting, that the lower tribunals lacked such a power.
Mr and Mrs Carmichael chose not to pursue the matter further but RR approached Leigh Day to continue as he and his partner were in a similar situation.
RR lives with his severely disabled partner in social sector rented accommodation with two bedrooms.
On 5 March 2013 Sefton Borough Council decided that RR and his partner were under-occupying the accommodation and reduced his entitlement to housing benefit by 14% pursuant to Regulation 13B of the Housing Benefit Regulations 2006. RR appealed.
The FTT held that RR required a second bedroom because of his partner’s disabilities and her need to accommodate medical equipment and supplies. The Upper Tribunal allowed the respondent’s appeal.
RR obtained a ‘leapfrog certificate’ - which Leigh Day said was the first of its kind from the Upper Tribunal - to appeal directly to the Supreme Court, rather than to go back to the Court of Appeal.
Leigh Day lawyer Lucy Cadd said: “We hope that the court finds that social security tribunals and local authorities have the power to provide effective remedy to benefits claimants in situations where the application of regulations breach their rights protected by the Human Rights Act.
“The case is constitutionally important with potentially far-reaching implications that could apply to all social welfare claimants, and even to other areas of law, such as employment or immigration, in which individuals’ cases are heard by specialist tribunals.
"The case presents an important opportunity for social security tribunals and local authorities to be given the power to take steps to avoid a breach of human rights thereby ensuring that the welfare system can properly and fairly support disabled people."
Mark Smulian
