Supreme Court hearing in bedroom tax cases begins today

Nearlylegal - 17 November 2016 11:12 PM

Martin Williams - 16 November 2016 03:39 PM

CPAG’s view is that claimants can rely on the judgment and it would be unlawful for an LA to refuse apply it:

A declaration of incompatibility is only necessary if primary legislation cannot be read in a way that is compatible with the Convention.  The HB Regulations are secondary legislation.  Therefore, the local authority and the Tribunal are under a duty under s6 HRA to dis-apply the legislation insofar as it discriminates against disabled people who have medical need for an additional room. [...]

So claimants with a medical need for an extra bedroom should be advised to seek a revision (or supersession?) of their housing benefit award on an error of law and appeal against any refusal to the Tribunal.  They probably should also apply for a DHP to cover the gap while they are waiting, but they are entitled to an increase in HB as of right.

Hmm, but HRA s.6(2)(b) - ‘made under primary legislation’, then s.6(1) does not apply. Regs made under s.69 Welfare Reform Act 2012?

The point of s.6(2) of the HRA is to protect the supremacy of parliament- Public Authorities are still forced (or enabled) to act against human rights where parliament’s primary legislation makes clear they should (or can) do so- see for example Hooper [2005] UKHL 29 at para 92:

  As my noble and learned friends have pointed out, subsection (2) is intended to preserve the supremacy of Parliament. A sovereign Parliament has power to legislate in a manner incompatible with Convention rights if it chooses to do so. If Parliament does do so, the legislation is effective and must take effect accordingly. There are not, under English domestic law, any fundamental constitutional rights that are immune from legislative change. So paragraph (a) says that if as a result of a provision of primary legislation the Secretary of State could not have acted differently, it is not unlawful for him to act in a way incompatible with a Convention right.

Where, as here with reference to s.69 WRA 2012, there is nothing in the primary legislation itself “which cannot be read or given effect in a way which is Compatible with the Convention rights” that is the end of the matter- in s.6(2)(b) the issue with secondary legislation is always: does the primary legislation compel this secondary legislation to be made in this way.

s.6(2)(b) is never a defence for secondary legislation which is incompatible with human rights where the primary legislation does not provide for the incompatibility (or at least for the possibility of incompatibility).

Worth looking also at Doherty and Ors v Birmingham CC [2008] UKHL 58 - 110 to about 113 which discusses Hooper and s.6(2).

From those judgments it emerges that the issue is always whether the primary legislation itself cannot be read compatibly.

All s.69 does is amend s130A of the SSCBA 1992 to add power for regulations as follows:

“(5) The regulations may, for the purpose of determining the AMHB, provide for the amount of the liability mentioned in section 130(1)(a) above to be taken to be an amount other than the actual amount of that liability (and, without prejudice to the generality of this subsection, may provide for it to be taken to be the amount of a rent officer determination).

(6)The regulations may, for that purpose, make provision for determining the amount of liability under section 130(1)(a) above which a person is treated as having by virtue of regulations under section 137(2)(j) below (and, without prejudice to the generality of this subsection, may provide for that amount to be the amount of a rent officer determination).”

There is nothing in those powers which enables the SSWP to make regulations which breach human rights and certainly nothing which requires him to do so.

There is therefore no problem in disapplying the regulations.

Having been corrected here (and elsewhere) I am delighted to be shown to be wrong!

Though the question then is interpretation of the SC judgment. Para 42 looks like a statement of general principle, but the specific findings of unlawful discrimination at 46-49 were on Rutherford and Carmichael situations.

One would anticipate the DWP taking a restrictive view on amending the Regs and likewise taking a restrictive view in Tribunal proceedings on the wider application of the case.

It seems that s6 is the only available remedy in human rights cases where (i)no s3 interpretation will work, but (ii) the primary legislation is not incompatible. That’s the situation we have here: the Secretary of State did not have to, but nevertheless did make incompatible regulations which cannot be read compatibly under s3. So now the local authorities are the bad guys for applying those regs: s6 says they must not. The vague and unsatisfactory part is what precisely the local authority must do instead. Simply disapplying the offending regs sounds good, but exactly what passage of the regs do you disapply and what do the remaining regs look like without it? Or is it unnecessary to be that precise: does the council just pay more HB because it would be unlawful not to even though there is no statutory provision setting out the precise calculation method? The HB award is the amount it would be if the regs were compatible with the HRA, and it isn’t necessary to demonstrate how the regs could achieve that: is that how it works?

Quote from Martin at 43 above “So claimants with a medical need for an extra bedroom should be advised to seek a revision (or supersession?) of their housing benefit award on an error of law and appeal against any refusal to the Tribunal.  They probably should also apply for a DHP to cover the gap while they are waiting, but they are entitled to an increase in HB as of right.” 

But to my mind the court did not clearly define ‘medical need’ - is there a clear difference (or potential overlap) between a ‘medical need’ and a ‘disability need’? So for example arguably Mrs Carmichael had a ‘medical need’ because she needed an othoepaedic bed (which arguably is also a disability need).

However, is it equally clear that the Rutherford’s grand-son had a ‘medical need’? Clearly his needs flow from a medical condition but is that the same as a medical need (eg for special equipment or for medical treatment / nursing care). Is a ‘disability need’ such as overnight supervision / attention from a carer (for whom the extra bedroom is required) the same as a ‘medical need’?

Will the extent to which the decision benefits cases that are not direct Rutherford or Carmichael look alikes (such as where the additional bedroom for a carer is due to the needs a of another adult in the household who is not a ‘relevant person’) depend on how the Government amends the Regs?

I don’t think the decision makes any conscious distinction between “medical need” and “disability need”.  The key distinction is between cases where there was a need for a member of the family to have an extra bedroom to sleep in on the one hand (either for the claimant himself/herself or for someone else providing care) and on the other hand cases where everyone in the family had enough bedrooms to sleep in but needed extra space for other purposes, which in some cases related to medical and/or disability issues and in other cases did not:

- the horder whose bedrooms were full of paper (a disability issue)
- cases where rooms were used for storage of equipment (a medical issue in the way the decision uses that word)
- in the shared custody case, the issue was not that the son was disabled but that no bedroom was allowed for him in any case because HB only allows for a child to belong to one family.  The HB claimant had enough bedrooms for himself
- and in the sanctuary scheme case the issue was that it would be a terrible pity to have to move from an expensively adapted home just because it coincidentally had a spare bedroom in addition to the security features and panic room

The above all lost because in none of those cases was there a need for an extra bedroom to sleep in as a result of disability or gender discrimination against a family member.  So I would expect the amending regs to be framed in a similar way to the existing overnight care reg which requires there to be (i) a need for overnight care and (ii) an actual bedroom that gets used by the overnight carer.  I assume there will be an extra bedroom allowed under Reg B13(6) and the LHA/LRR equivalents for cases where there is a bedroom being used as a bedroom because of the severe disability or illness of the claimant or a member of the family.  Whether it extends to non-deps we will have to wait and see, but it seems to me there should be no distinction between:

- a claimant/partner/joint tenant who needs overnight care (already catered for)
- a child who needs overnight care (exact match for Rutherford and bound to be catered for in amending regs)  and
- a non-dep who needs overnight care (typically a grown up child).  There surely can be no reasonable justification for removing the room the instant a disabled child hits the child benefit terminal date.  If the regs don’t cater for non-dependants people will get round it by including them as joint tenants, as many private sector landlords already require.  It would be extremely harsh of a local authority to regard that as “taking advantage” under Reg 9 when the alternative would be a slam dunk DHP.

24 Housing reports that almost £500,000 has been spent by the government on legal fees fighting families who appealed over ‘bedroom tax’.

According to figures released to Parliament by Work and Pensions minister Caroline Nokes, the total cost of legal proceedings in the landmark cases at the High Court, Court of Appeal and Supreme Court was £484,000,

Government’s £500,000 legal bill over Bedroom Tax

Government still ‘considering the Supreme Court judgment and what changes are required to comply with its terms, including additional exemptions where appropriate.

Written answer in Commons yesterday - http://www.parliament.uk/business/publications/written-questions-answers-statements/written-question/Commons/2017-01-09/59245

Looks like new legislation is coming out to allow for decision in Rutherford and MA - extra bedroom for adults that cannot share and also for carer of a disabled child or non-dependant - HB circular out but not yet regs - attached

I am somewhat puzzled by this.

We have a client who, for medical reasons, is unable to share a bedroom with his wife, and who won a “bedroom tax” appeal at FTT.  The local authority applied for leave to appeal to the UT, and the case was stayed pending the Supreme Court’s decision in Carmichael.

After the decision the LA withdrew its appeal and have actually paid the HB arrears to the client.  On 20 February the Upper Tribunal wrote to the client informing him that the SoS for Work & Pensions had asked to be made a party in all HB reduction appeals.  The LA has now been asked whether it wishes to reinstate its application for leave to appeal.

If the DWP is changing the HB regulations for people in our client’s circumstances with effect from 1 April, then why are they intervening in appeals that relate to an earlier date?

One might form a conclusion that they’re making things up as they go along Ruth?

I think there is still important work for the UT here and the Secretary of State’s involvement would not be a bad idea.  These cases still leave the question of what happens to Carmichael/Rutherford “look-alikes” between the date of the Supreme Court decision and the date when the new Regs come into force, and the wider question of what should happen in future if a similar situation arises again, i.e:

- primary legislation not incompatible with the Convention
- Regulations are incompatible, but the Secretary of State did not have to make them that way
- it isn’t really possible to give the Regulations compatible effect by way of interpretation under s3 of the HRA (especially with regard to couples who cannot share, which requires the insertion of a whole new paragraph as far as I can see)
- but s6 says it is unlawful for a local authority to act in an incompatible way (unless bound to do so by incompatible primary legislation, including regs made under such legislation, which isn’t the case here)

So it’s unlawful for a Council to apply the Regs in their current state: key issue is what should they do instead?  And does a Tribunal even have jurisdiction to award such a remedy if it doesn’t disturb the awarding decision?  Remember both the Rutherford and Carmichael cases came up through the JR route: they were attacking the legislation directly, not the Council’s decision made under the legislation.  Most cases go down the Tribunal route.

I don’t think any of the existing cases adequately address the question of remedy and lawyers disagree about it (as demonstrated above in the Giles v Martin segment of this thread).  There were a lot of cases stayed behind Carmichael and Rutherford and I have been involved in one where the UT appellant is the claimant - the UT has now directed the Council to respond to the appeal so I have responded as follows:

- the FtT seemed to believe (following Carmichael in the CoA) that a DHP is always an acceptable answer.  In the light of the Supreme Court decision we know that is not the case, so the FtT erred in law by failing to entertain the possibility that the discrimination was not justified
- a new hearing is required to consider whether the facts are on a par with Carmichael and Rutherford (in my case there is some doubt about exactly what the extra room is used for)
- but rather than a straightforward remittal, the council respectfully asks for a reasoned decision addressing the questions of remedies and jurisdiction: in the context of a Tribunal appeal against a benefit decision, what can a claimant hope to gain where the regs are incompatible but the primary legislation isn’t?  If, in accordance with s6, the FtT is in a position to say that the Council must refrain from applying incompatible regs, what exactly would the Tribunal have the Council do instead? If the Council must pay more money, does it take the form of HB (funded by government subsidy) or is it something else?  If it is something else, whence does the FtT derive its jurisdiction to award the remedy?

I hope the UT will accept that we need a decision addressing these points.  It will clear up what happens to look-alike cases during the regrettable hiatus between the decision and the new regs and it will serve as guidance for similar cases in the future.

Regs are out: http://www.legislation.gov.uk/uksi/2017/213/made

You get your own bedroom if you are a member of a couple who cannot share a bedroom, or a member of a couple who can share a bedroom.  Failing that, a couple get a bedroom between them.  That’s the order of priority.  So me and my wife claim HB: each of us is a member of a couple who can share a bedroom, so we get one each under subpara (zb) before either of us gets as far as subpara (a).  Result!

Presumably what they meant to say was:

(zb) in a case where:
  (i) subparagraph (za) applies to a member of a couple, and
  (ii) subparagraph (za) does not apply to the other member of that couple
the other member of that couple

But they didn’t.

HB Anorak - 02 March 2017 03:52 PM

2. Only people on top whack DLA(c) etc??  That will not end well for the DWP.  Another trip to the courts is guaranteed

I read it as higher rate AA (only) but middle or higher DLA care or either rate of PIP Daily Living - so why the discrimination against older people?  - another drafting error (or trip to the courts!)?