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Supreme Court Decision - public bodies and courts should disapply secondary legislation if it breaches someone's Human Rights.


The Supreme Court - looking at a Bedroom Tax case - has ruled that secondary legislation can be "disapplied" (ie ignored) where it conflicts with the Human Rights Act.

The judgement makes it clear that where secondary* legislation breaches the claimant’s Human Rights, a decision maker has the right to disapply a provision of that secondary legislation:  indeed it appears to impose a duty on public bodies to act in such a manner.
So this is no longer an issue solely for Judicial Review.

*Secondary legislation includes the UC Regulations as well as the HB Regulations (as opposed to primary legislation such as the Welfare Reform Act ie an Act of Parliament). 

This decision does not mean that the Bedroom Tax as a whole breaches Human Rights and is therefore unlawful – but makes it easier for those claimants who are affected by the Bedroom Tax to challenge it if they believe that in their situation the application of it breaches their Human Rights.

Before this decision, if a claimant wished to challenge benefit regulations because they felt they breached their Human Rights, then they would have had to make that challenge through the Judicial Review process.

Judicial Review is almost impossible to do without legal representation, and can be a lengthy process. A lawyer will almost certainly be required to take the claim. Legal Aid is almost never available for a benefit decision so it can be very expensive for the claimant unless a charity or other body is willing to fund the claim.

This Supreme Court ruling now means that where a benefit claimant is suggesting that secondary legislation – which includes the Housing Benefit and Universal Credit Regulations – breaches their Human Rights, then they are able to make this challenge directly to the benefit authority (and can go on to appeal any decision to HM Courts and Appeals Service). They no longer have Judicial Review as the only option.

This makes it easier for claimants to challenge secondary legislation benefit decisions that they believe breach their Human Rights.

What does this mean for claimants?
This Judgement means that benefit claimants will no longer have to take all cases for breach of Human Rights through the Judicial Review process – which can be both costly and protracted. But they can request that the relevant benefit authority consider the breach.

However, they should be aware that some claimants have already taken cases regarding the Bedroom Tax and Benefit Cap through the Judicial Review process – so a decision may have already been made in a case similar to theirs.
And it is only rules made by secondary legislation that they can challenge in this way.

Living in a 'Sanctuary Scheme' or adapted property?

Some claimants living in a 'Sanctuary Scheme' or living in adapted/purpose build properties for whom it would be too difficult to move, can now appeal a Bedroom Tax reduction on the grounds that it breaches their Human Rights direct to their Local Authority / DWP.

Click here to find out more in our Briefing.