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Carmichael case to go to Supreme Court

20 February 2019

Appeal against Secretary of State for Work And Pensions v Carmichael & Anor [2018] EWCA Civ 548

The Supreme Court will consider whether the social security tribunals 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 hearing will take place on 3 July 2019. Read Leigh Day news item

Background

This case was an appeal by the Secretary of State for Work and Pensions against the upper tribunal decision CH/3609/2014.

It concerned whether tribunals could disapply or ignore bedroom tax regulations that breach human rights.

Mr and Mrs Carmichael were assessed as only needing one bedroom as a couple. The Carmichael’s appealed because they were unable to share a bedroom due to Mrs Carmichael’s disablement.

The first-tier tribunal (FTT) held that under-occupancy reduction of 14% should not have been imposed in this case because the bedroom tax regulations were in breach of the couple’s rights under the Human Rights Act.

The upper tribunal found that the FTT had reached the right conclusion but for the wrong legal reasons:

 “What the tribunal should have done was to direct the local authority to calculate the claimant’s housing benefit entitlement without making a deduction of 14% for under occupancy to avoid an unlawful breach of Mr (or Mrs) Carmichael’s Article 14 rights”

However, the upper tribunal felt that the result was the same and that the FTT had the power to provide a remedy Human Rights Act breaches to benefits claimants.

Court of appeal

 The Secretary of State appealed and won on the grounds that -

  • Benefits appeal tribunals do not have the power to devise solutions to Convention violations outside of the law governing the benefit in question (they can make directions or quash unlawful regulation); and

  • The Upper Tribunal failed to have regard to other payments (in particular discretionary housing payments (DHPs)) for which provision had been made by the Secretary of State to make up for reductions in housing benefit.

The Court of Appeal decision prevents a tribunal from devising solutions to Convention violations outside of the law governing the benefit in question, forcing claimants to appeal to higher courts. The ruling may also have implications for employment and immigration tribunals where human rights is an issue.

This case affects future claimants, following the date of the decision. The Carmichaels themselves are not liable to the bedroom tax because of an earlier case - R (on the application of Carmichael and Rourke) (formerly known as MA and others) – which resulted in a change of the law.