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Upper Tribunal Decision

Tribunals can disapply secondary legislation if they believe it contravenes the claimant's Human Rights

This ruling may appear to be about the Bedroom Tax - as it is about a challenge made by the Carmichaels (the couple who won their case that the Bedroom Tax breached their Human Rights as, due to Mrs Carmichaels' disability they were unable to share a bedroom) - but it is actually about whether a First Tier Tribunal (FTT) can 'read into' benefit Regulations words and phrases if it believes the Regs would otherwise contravene Human Rights.

The Carmichaels - as well as appealing the Bedroom Tax Regs under Human Rights breaches via Judicial Review (JR) - also appealed the Bedroom Tax decision via First Tier Tribunal (FTT). The FTT in their case (and in several other cases at the time ie in 2013) decided to  'read into' the Regs what words it felt were necessary to amend the breach of Human Rights it believed to be apparent in the Carmichaels' case.

Their JR appeal went all the way to the Supreme Court - which last November found that, for couples like the Carmichaels, the Regs are a breach of Human Rights  - and so instructed the DWP to amend the Regs - which the DWP have now done (click here) - but only from 1st April 2017.

Sitting in the backbround - and 'stayed' pending the outcome of the Supreme Court - was this other FTT decision which the DWP decided to appeal after the decision of the Supreme Court was known. (For the Carmichaels themselves this was about getting the Bedroom Tax reduction lifted not just from 1st April 2017, but from 1st April 2013.)

And what the Upper Tribunal (UT) decided (click here) was very interesting - they decided that whilst Tribunals do have the power to 'read in' the odd word into Regulations if they believe those Regs to be a breach of the claimant's Human Rights, the FTT went too far in this case 'reading in' whole sentences. BUT the UT said that where the FTT believe that Regs made under secondary legislation were a clear breach of the claimant's Human Rights they could direct the Local Authority to disapply them:

"Courts and tribunals have power to determine and so direct that, to the extent that subordinate legislation is incompatible with a person’s Convention rights, it should not be given effect to in determining the person’s lawful entitlement (or should be otherwise applied or disapplied in a way that does not breach the person’s Convention rights): Mathieson v Secretary of State for Work and Pensions [2015] UKSC 47 applied."

This decision goes beyond just Bedroom Tax Regs - and presumably beyond just HB Regs - so is a big issue. Obviously the DWP are attempting to appeal.

The DWP quickly issued a HB Bulletin: U1/2017, which states that the UT have suspended the effect of the decision - so at the moment it has no effect in law...........BUT it looks like DWP have initially been refused permission to appeal and therefore the effect of this decision is only suspended for 28 days from 27th April 2017.

"An application by the Secretary of State for Work and Pensions for permission to appeal against this decision was refused by the Upper Tribunal. The Secretary of State has the right to renew that application for permission to appeal before the Court of Appeal. Subject to further order by the Upper Tribunal or the Court of Appeal the effect of the Upper Tribunal’s Decision is suspended for 28 days from 27 April 2017."

So presumably - unless we hear differently from 26th May 2017 - anyone who feels a benefit decision, made under secondary legislation, contravenes their Human Rights, can request an appeal of that decision to the FTT requesting that the FTT tell the LA (or other benefit authority) to disapply the Regulation in their case........

NOTE: Writing in italics copied in from here: https://www.gov.uk/administrative-appeals-tribunal-decisions/secretary-of-state-for-work-and-pensions-v-carmichael-and-sefton-bc-hb-2017-ukut-174-aac