RR v Secretary of State for Work and Pensions

Factual and Procedural Background

The Appellant lives with a severely disabled partner in a two-bedroom social-housing property. From 1 April 2013 the Local Authority applied Regulation B13 of the Housing Benefit Regulations 2006 and reduced the Appellant’s housing-benefit entitlement by 14 % on the ground that the couple required only one bedroom. The Appellant appealed, and the First-tier Tribunal found as fact that separate bedrooms were medically necessary and that applying the deduction was unlawfully discriminatory. Parallel litigation culminating in the Supreme Court decision reported as “R (Previous Claimants) v Respondent Secretary of State” had already declared Regulation B13 discriminatory in two analogous situations.

After those Supreme Court declarations, amending regulations were introduced with effect from 1 April 2017, but they did not operate retrospectively. The question therefore arose whether, for pre-amendment periods, decision-makers were obliged to continue applying the original Regulation B13 or instead to calculate benefit without the deduction so as to avoid breaching Convention rights. The Upper Tribunal, bound by a Court of Appeal majority decision adverse to the Appellant, allowed the Respondent Secretary of State’s appeal. A “leap-frog” certificate was granted, and the Supreme Court granted permission to appeal.

Legal Issues Presented

1. Whether, for periods before the 2017 amendments, decision-makers (Local Authorities, the First-tier Tribunal and the Upper Tribunal) must disregard the 14 % deduction mandated by Regulation B13 where applying it would violate Article 14 read with Article 8 of the European Convention on Human Rights.
2. If the deduction must be disregarded, whether Discretionary Housing Payments received by a claimant during the relevant period should be offset against any additional housing-benefit entitlement.

Arguments of the Parties

Appellant’s Arguments

• Under section 6(1) of the Human Rights Act 1998 every public authority, including tribunals, must act compatibly with Convention rights; applying the deduction would therefore be unlawful.
• The exception in section 6(2) does not apply because Regulation B13 is subordinate, not primary, legislation and primary legislation does not compel the discriminatory deduction.
• Consistent Supreme Court and Court of Appeal authority (e.g. Claimant M, Claimant B, Claimant G) shows that incompatible subordinate legislation must simply be disregarded by decision-makers.
• No separate damages action is required; the tribunal can and must decide entitlement correctly within the appeal.

Respondent Secretary of State’s Arguments

• The tribunals lack power to “rewrite” Regulation B13; to do so would usurp the legislative function and raise constitutional concerns.
• The proper remedy for a Convention violation is a separate claim for damages under sections 7 and 8 of the Human Rights Act, not payment of additional benefit through the appeal process.
• The Claimant M decision was fact-specific and does not create a general rule permitting tribunals to ignore subordinate legislation.
• Allowing tribunals to disapply the Regulation would interfere with the statutory scheme for Discretionary Housing Payments.

Table of Precedents Cited

Court's Reasoning and Analysis

1. The Human Rights Act 1998 deliberately distinguishes between primary and subordinate legislation. Section 6(1) obliges every public authority to act compatibly with Convention rights unless primary legislation requires the contrary (sections 6(2) and 3(2)).

2. Regulation B13 is subordinate legislation and its incompatibility was authoritatively established by the earlier Supreme Court ruling. No primary statute mandates either its specific wording or the discriminatory deduction. Consequently, section 6(2) cannot excuse decision-makers from compliance.

3. A consistent line of authority – including Claimant M, Claimant B, Claimant G, Claimant F, JT and In re G – demonstrates that where subordinate legislation cannot be interpreted compatibly, decision-makers must disregard the offending provision and “level-up” the claimant’s entitlement.

4. The Respondent’s argument that tribunals would be “rewriting” the Regulation misunderstands the constitutional position: no rewriting is undertaken; the incompatible provision is simply not applied.

5. Equally, the suggestion that the only permissible remedy is damages under section 8 of the Human Rights Act is rejected. Section 7(1)(b) expressly allows a claimant to rely on Convention rights in any legal proceedings. Deciding entitlement correctly within the statutory appeal fits squarely within that provision.

6. The Court found no practical barrier to calculating housing benefit without the 14 % deduction; the situation is identical to earlier benefit cases where the discriminatory element was removed while leaving the rest of the scheme intact.

7. Regarding Discretionary Housing Payments, the Court held that neither the original decision-maker nor the appellate tribunals had jurisdiction to offset such payments when determining entitlement; the existence of DHPs is therefore irrelevant to the legality of the housing-benefit decision.

Holding and Implications

APPEAL ALLOWED.

The decision of the Local Authority dated 5 March 2013 is set aside. The Appellant’s housing-benefit entitlement must be recalculated for the relevant period without the 14 % under-occupancy deduction.

Implications: The ruling confirms that tribunals and Local Authorities must disregard any provision of subordinate legislation that would compel a breach of Convention rights. It reinforces the duty imposed by section 6(1) of the Human Rights Act and clarifies that claimants can obtain full benefit entitlement through the appeal process itself, without resorting to separate damages actions. No new statutory precedent is established, but the decision has immediate operational consequences for all “bedroom-tax” cases predating the 2017 amendments.