An appeal is to be heard in the UK’s highest court on Wednesday in an important constitutional case on the powers of specialist tribunals and local authorities relating to the ‘bedroom tax’.
The Supreme Court will consider whether social security tribunals and local authorities have the power to provide effective remedy to benefits claimants in situations where the application of regulations breach their rights under the Human Rights Act.
The case in the Supreme Court is being brought by a man, known as Mr RR, who is continuing the original legal case brought by Jayson and Jacqueline Carmichael. Both the Carmichaels and RR are represented by law firm Leigh Day.
The initial case was brought by Mr and Mrs Carmichael, who under the bedroom tax rules had only been allowed one bedroom. They argued in their legal case that they needed two bedrooms due to Mrs Carmichael’s medical condition.
Mr Carmichael successfully challenged the decision to apply the bedroom tax to his housing benefit allowance in the First-tier Tribunal (FTT) in 2014, but the UK Government successfully appealed the FTT’s decision in the Court of Appeal in February 2018.
Mrs Carmichael had been successful in the Supreme Court in a separate but related judicial review challenge of the bedroom tax regulations in December 2016. In this case, the Supreme Court found that the bedroom tax was unlawful when applied to couples who require an extra bedroom due to a medical need. Despite this finding, the government still decided to press ahead with their appeal of Mr Carmichael’s FTT case.
They argued that the remedy given by the FTT - to disapply the bedroom tax to people with disabilities who need a second bedroom for medical reasons - is not one which can be provided by the FTT. When heard by the Upper Tribunal, the bench confirmed that the FTT had the power to provide a human rights remedy to benefits claimants, however, the Court of Appeal disagreed with this decision and found, with Lord Justice Leggatt dissenting, that the lower tribunals did not in fact have the power to provide such a remedy to benefit claimants.
Following the decision of the Court of Appeal, Mr and Mrs Carmichael did not feel able to pursue their housing benefit challenge to the Supreme Court, due to their personal circumstances.
Mr RR approached Leigh Day to continue the challenge after he and his partner were left in a similar situation as they required a separate bedroom as a result of his partner’s medical needs. The Upper Tribunal hearing Mr RR’s appeal was bound by the Court of Appeal’s decision in the case brought by the Carmichaels that the FTT did not have the power to provide a remedy to benefit claimants in Mr RR’s case.
In order to challenge the Upper Tribunal’s decision Mr RR successfully obtained a so-called “leapfrog certificate”, the first of its kind from the Upper Tribunal, which made it possible to apply for permission to appeal directly to the Supreme Court, rather than to go back to the Court of Appeal. Mr RR was granted permission to appeal by the Supreme Court in February 2019.
Lucy Cadd, who is working on this case with Carolin Ott, both from law firm Leigh Day, said: “We look forward to presenting our client’s case in the Supreme Court and we hope that the court finds that social security tribunals and local authorities 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 case is constitutionally important with potentially far-reaching implications that could apply to all social welfare claimants, and even to other areas of law, such as employment or immigration, in which individuals’ cases are heard by specialist tribunals.
“The case presents an important opportunity for social security tribunals and local authorities to be given the power to take steps to avoid a breach of human rights thereby ensuring that the welfare system can properly and fairly support disabled people.”
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