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How Much: Bedroom Tax - Human Rights

Where a claimant believes that applying the Bedroom Tax rules in their case contravenes their Human Rights then they do have the right of appeal against the DWP's decision.

Issues of Human Rights are dealt with through Judicial Review - however we were hoping that a decision of the Court of Appeal would rule that Tribunals could instruct either a HB Office or the DWP (depending if HB or UC) to disapply the Bedroom Tax rules if they felt that applying the rules breached the claimant's Human rights.

Unfortunately on 20th March the Court of Appeal (on a majority decision) ruled that Tribunals could not ignore regulations even if they breach a claimant's Human Rights.

The details of this case are given below. 
Note: while the appeal concerned only the Carmichaels’ appeal we understand that it was effectively the lead case in a block of some 170 further cases before the Upper Tribunal in England and Wales and around 40 cases pending in Scotland. If the outcome had  been positive the  implications of the decision would probably have gone further than Carmichael-like cases and Bedroom Tax cases: it effectively would have confirmed that the First Tier Tribunal had powers far beyond what most practitioners previously understood to be the case.

Secretary of State for Work and Pensions v Carmichael and Sefton BC (HB): [2017] UKUT 174 (AAC)

This ruling may appear to be about the Bedroom Tax - as it was 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 was 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 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  found that, for couples like the Carmichaels, the Regs are a breach of Human Rights and the Court instructed the DWP to amend the Regs - which the DWP have now done (click here) - but only with effect 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.)

The Upper Tribunal (UT) 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."

NOTE: Writing in italics copied in from here

Unfortunately on 20th March the Court of Appeal (on a majority decision) ruled that Tribunals could not ignore regulations even if they breach a claimant's Human Rights.






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Related Links

 Overnight care - claimant/partner
 Disabled child
 Who is protected from Bedroom Tax?
 What is a bedroom?


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