Bedroom Tax can be disapplied by First-Tier Tribunal in England

Back in November, we brought you news of two successful challenges to the “Bedroom Tax” size criteria policy in the UK Supreme Court. The success of these challenges resulted in new regulations, which expanded the circumstances in which a household is permitted an “additional” bedroom.

Now, an Upper Tribunal has ruled against the DWP in an appeal against how one of these challenges was initially brought, in a decision that could have major implications when challenging benefits decisions on human rights grounds.

Challenge brought to First Tier Tribunal

Mr and Mrs Carmichael live in a two-bedroom, adapted social property. Mrs Carmichael has spina bifida, and as a consequence, is unable to share a bedroom with her husband. However, the size criteria policy stated that this couple was only entitled to 1 bedroom, which meant that the couple’s Housing Benefit was to be reduced by 14%, from March 2013.

The Carmichaels appealed this reduction to the First-Tier Tribunal – a specialist English tribunal which deals with Social Security decisions. Their appeal was heard in April 2014. The FTT upheld the Carmichaels’ appeal, by essentially adding the italicised words below to the size criteria legislation, in an attempt to ensure that the size criteria was compatible with the European Convention of Human Rights:

“[A bedroom should be permitted for] a couple . . . or one member of a couple who is unable to share a bedroom because of his or her disability or the disability of the other member of that couple.”

The Department for Work & Pensions appealed this, arguing that the FTT did not have the authority to make this decision. However, this appeal was put on hold whilst a related judicial review was heard at the Supreme Court.

Bedroom Tax in UK Supreme Court

The judicial review against the size criteria policy at the Supreme Court included seven challenges to the “bedroom tax” policy. The Supreme Court’s judgment found in favour of two of these challenges.

The size criteria policy at that time permitted an “additional” bedroom where:

• There is a child who cannot share a bedroom, due to disability. (The child must be receiving at least DLA middle-rate care or PIP Daily Living, and the local authority must be satisfied that they are not able to share a bedroom.)
• The claimant, or their partner – i.e. an adult – requires overnight care. (The claimant/partner should be in receipt of at least DLA middle-rate care, PIP Daily Living, or Attendance Allowance, or otherwise demonstrate to the local authority that they require overnight care.)

The Supreme Court found that there was “no reasonable justification” for children and adults being treated differently in this way, and upheld the Carmichaels’ appeal against the policy. As a result, new regulations were introduced, with the effect that an extra bedroom is permitted where:

• A person, regardless of age, cannot share a room due to disability.
• A person, regardless of age, requires overnight care.

This outcome resolved the Carmichaels’ appeal, by finding that they, and other households in similar circumstances, would be permitted an “additional” bedroom.

DWP challenges First Tier Tribunal’s authority to make the decision

The DWP’s original appeal, which had been put on hold pending the outcome of the Supreme Court case, was not about the substance of the FTT’s decision; it was about the FTT’s very authority to make that decision. This appeal was decided by the Upper Tribunal on 9th April 2017.

The DWP contended that the FTT had no power to add to the regulations in the manner in which it had, and that the FTT was required to simply apply legislation passed by Parliament.

Upper Tribunal finds FTT has power to disapply bedroom tax

The Upper Tribunal acknowledged that there are limits to a tribunal’s powers to effect legislative change. A tribunal cannot, for instance, disapply a provision incompatible with Convention rights in primary legislation; neither can it disapply an incompatible provision in secondary legislation, if the “parent” legislation prevents that provision’s removal. The UT also acknowledged that the FTT did not have the power to add words to legislation. However, in the context of the bedroom tax regulations, the UT disagreed with the DWP’s argument.

The UT highlighted that the Human Rights Act makes it unlawful for the FTT, a public authority, to “act in a way which is incompatible with a Convention right”, and also establishes a citizen’s right to “rely on their Convention rights in any legal proceedings.”

The UT also stated that the DWP’s proposed approach would contradict previous case law — established in Chief Adjudication Officer v Foster AC754 [1993] — which states that tribunals are empowered to provide remedy, where secondary legislation is ultra vires.The Upper Tribunal therefore concluded as follows:

“[. . .] courts and tribunals ultimately have the power to determine, and so order or 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.”

In the specific case of the Carmichaels, the UT found that the FTT’s initial process, of adding words to Regulations, had been an error of law as a tribunal’s power to “ensure  primary and subordinate legislation is read and given effect in a way which is compatible with the Convention rights” does not extend to adding words to legislation. However, the FTT’s decision to allow the Carmichaels’ appeal on the grounds that the legislation is incompatible with their Convention rights was correct.

The UT therefore concluded by ruling that the FTT should have allowed Mr Carmichael’s appeal against his Housing Benefit decision, and ordered his Housing Benefit to be recalculated without the bedroom tax deduction.

Relevance to Northern Ireland

The DWP has issued guidance to local authorities advising that they are appealing the Upper Tribunal decision. Until this appeal is heard, the UT has suspended the effect of this decision, meaning that the decision currently has no effect in law.

If the Upper Tribunal’s decision is upheld, this would mean that tribunals would have the power to order a provision to be disapplied where a provision in secondary legislation is incompatible with Convention rights, and where removal of the incompatibility is not prevented by the “parent” primary legislation. This power could potentially apply to a wide range of benefits, which are based in secondary legislation.

Although decisions of the Upper Tribunal in England do not establish a precedent in Northern Ireland, this decision will provide a significant tool for advisers seeking to challenge benefits decisions on the grounds of the Human Rights Act, which extends to the whole of the UK.

Tribunals in Northern Ireland are considered to be “public authorities” for the purposes of the Human Rights Act. By virtue of this UT decision, they are both precluded from acting in a way which is incompatible with Convention rights, and actively empowered to disapply secondary legislation where this is incompatible with Convention rights.