Supreme Court to hear case on the powers of social security tribunals

By agency reporter
February 21, 2019

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.
The initial case was brought by Mr and Mrs Carmichael, who fought against the bedroom tax by arguing that they needed two bedrooms due to Mrs Carmichael’s medical condition. Under the bedroom tax rules, they had only been allowed one bedroom.
The Carmichaels brought two separate but related legal challenges. Mr Carmichael brought an appeal to the First-tier Tribunal (FTT) in April 2014 against the decision to apply the bedroom tax to his housing benefit allowance, on the basis that he was under-occupying his house by having a second bedroom. The appeal was successful and the FTT judge agreed with the arguments made on Mr Carmichael’s behalf that the bedroom tax should not have been applied because his wife had severe disabilities and needed a second bedroom for medical reasons. The judge found that bedroom tax regulations were in breach of the couple’s rights under the Human Rights Act, that they were entitled to two bedrooms and that the under-occupancy reduction of 14 per cent should not have been imposed.
In a separate but related court case, Mrs Carmichael successfully challenged the bedroom tax regulations in judicial review proceedings heard in the Supreme Court. The country’s highest court ruled in November 2016 that the government had unlawfully discriminated against Mrs Carmichael, and couples in a comparable situation, via the bedroom tax regulations.  

Following the Supreme Court’s decision in Mrs Carmichael’s case, the government nonetheless chose to pursue their appeal of the decision of the FTT of April 2014 in Mr Carmichael’s case. The government argued in their appeal that the remedy given in 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.
Due to the difficult personal circumstances of Mr and Mrs Carmichael, they understandably felt unable to continue their challenge after the Court of Appeal decision. However, another couple, Mr RR and Ms JM, who were in a similar situation where one partner required a separate bedroom as a result of her medical needs, approached Leigh Day wishing to challenge the effect of the Court of Appeal decision. 
After successfully obtaining a so-called 'leapfrog certificate' (the first of its kind) from the Upper Tribunal, which made it possible for an application for permission to appeal to be made directly to the Supreme Court, rather than to the Court of Appeal, the Appellant has now been granted permission to appeal by the Supreme Court. 

Lucy Cadd, who is working on this case with Carolin Ott, both from law firm Leigh Day, explained the importance of the grant of permission to appeal: “As a result of the Court of Appeal decision, the powers of the social security tribunal have been severely curtailed. The tribunal is no longer able to address the injustice that is caused to a social welfare claimant by the application of regulations that breach their rights protected by the Human Rights Act.”
“The country’s highest court now has the opportunity to consider whether the social security tribunals have the power to provide remedy to benefits claimants in situations where the application of regulations breach their rights protected by the Human Rights Act. If our appeal is successful, this would allow the tribunal to address the injustice caused to social welfare claimants like our client and the approximately 170 other couples whose cases are stayed behind this appeal.”
"The case is also 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.”

* Leigh Day https://www.leighday.co.uk/


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