Supreme Court hands down judgment on human rights and secondary legislation in bedroom tax case
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Marc Bloomfield
In its judgment in RR v Secretary of State for Work and Pensions [2019] UKSC 52, handed down yesterday (13 November), the Supreme Court decided that secondary legislation can be disregarded by a court or tribunal if it breaches human rights law.
In 2013, what became known as the ‘bedroom tax’ was introduced into the Housing Benefit Regulations 2006 SI No 213. The new rules (reg B13(5) and (6)) provided for a deduction to be made from the benefit if the accommodation occupied by the claimant was deemed to have more bedrooms than they needed. The regulations had a detrimental impact on some claimants who, due to their disabilities, needed additional bedrooms.
Tribunals in two cases, Carmichael ([2017] UKUT 174 (AAC)) and Rutherford (RR) ([2018] UKUT 355 (AAC)) ruled that the regulations breached the Human Rights Act 1998 (HRA), and so deductions from housing benefit should not be applied. The case of Carmichael had gone to the Court of Appeal, which decided that the Upper Tribunal (UT) could not disregard the bedroom tax regulations ([2018] EWCA Civ 548). A leap-frogging certificate to go direct to the Supreme Court was granted in the case of RR, which had also been decided by the UT.
According to the Supreme Court, there are ‘some 130’ other cases pending the outcome of RR (see para 8). In what the court described as ‘an important constitutional question’ (para 3), it had to decide whether the UT had been correct in its interpretation of the law.
Allowing the appeal, the court ruled:
There is nothing unconstitutional about a public authority, court or tribunal disapplying a provision of subordinate legislation which would otherwise result in their acting incompatibly with [a right under the European Convention on Human Rights (ECHR)], where this is necessary in order to comply with the HRA. Subordinate legislation is subordinate to the requirements of an Act of Parliament. The HRA is an Act of Parliament and its requirements are clear (para 27).
The rights charities Public Law Project (PLP), Liberty and Child Poverty Action Group supported the case. Commenting on the judgment in a press statement yesterday, the director of PLP, Jo Hickman, said the Supreme Court had reaffirmed ‘that people should be able to enforce their human rights under the ECHR in any court or tribunal, without having to bring separate legal proceedings – just as the Human Rights Act says they should be able to’.

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