What is the Bedroom Tax?
Bedroom Tax (or the Spare Room Subsidy) is a change to Housing Benefit Entitlement that means you will receive less in housing benefit if you live in a housing association or council property that has one or more spare bedrooms.
If you have 1 spare bedroom you will lose 14% of your entitled housing benefit.
If you have two or more spare bedrooms you will lose 25% of your entitlement.
This new tax began in April 2013.
The case of RR (Appellant) v Secretary of State for Work and Pensions (Respondent)  UKSC 52
On the 13th November 2019, the UK Supreme Court handed down its judgment in the case of RR (Appellant) v Secretary of State for Work and Pensions (Respondent)  UKSC 52, which is a milestone development in the long-running “bedroom tax” saga, which included numerous chapters to it including the 2016 UK Supreme Court judgment in R (Carmichael) v Secretary of State for Work and Pensions  UKSC 58 and the ECtHR (Strasbourg) judgment from a few weeks earlier in J.D. and A v. The United Kingdom (Discrimination : Reduction of benefit in order to incentivise social housing tenants to move into smaller accommodation)  ECHR 753. In all of the above cases, the Courts held that the “bedroom tax” was unlawful as a measure.
The judgment of the UK Supreme Court in RR (Appellant) v Secretary of State for Work and Pensions (Respondent)  UKSC 52 provides some rather important points covering a broad range of cases, including points regarding powers of Courts and Tribunals to disapply Regulations and other secondary legislation enacted in contravention of the Human Rights Act 1998. In RR, the UK Supreme Court held that:
- It is not unconstitutional for a public authority, court or tribunal to disapply a provision of secondary legislation, which – if enforced – would result in them acting incompatibly with a Convention right. Subordinate legislation is subordinate to the Human Rights Act, which is an Act of Parliament.
- The Human Rights Act 1998 draws a clear and careful distinction between primary and subordinate (secondary) legislation, and the Human Rights Act 1998 and the Human Rights Act takes precedence over any Regulations incompatible with the Human Rights Act 1998.
- Acts of Parliament, which cannot be read or interpreted compatibly with Convention rights must still be given effect. This does not cover subordinate (secondary) legislation, where there is a specific Act of Parliament to address such incompatibility. Where it is possible to do so, a provision of subordinate (secondary) legislation which results in a breach of a Convention right must be disregarded, if it is possible to do so without affecting the statutory scheme.
- Public authorities and courts must make a finding that if the unjustifiable discrimination had not taken place, the individual in question would have received their entitlement right from day 1 (retrospectively) and must provide restitution retrospectively dating back to the first point that the entitlement arises. To argue otherwise would lead to the local authority or court acting in a manner in violation of section 6 the Human Rights Act 1998.
Among the interveners in the case of RR were leading human rights organisations such as Liberty, Child Poverty Action Group and Public Law Project (PLP). Rosie Brighouse, a lawyer at Liberty, said that the RR judgment clarifies what individuals can expect from courts and public bodies when it comes to duties under human rights law. PLP director Jo Hickman said: ‘This judgment reaffirms that people should be able to enforce their human rights under the European Convention on Human Rights in any court or tribunal, without having to bring separate legal proceedings – just as the Human Rights Act says they should be able to.” Before observing additionally that “Tribunals are intended to be a relatively inexpensive and accessible way for people to enforce their legal rights. They are often used to challenge public authority decisions about housing, disability and welfare entitlements. Where vulnerable people need a legal remedy, tribunals can be a lifeline.”
Undoubtedly, the UK Supreme Court’s judgment in RR “levels the playing field” between often modestly-resourced individuals on one end and groups and public authorities on the other, the latter ordinarily commanding vast financial and personnel resources, leading to an invariable inequality of strength. One can say that this is a major sorely-needed lifeline for many litigants (often appearing in person) in Tribunals across a variety of areas of legal practice.
Author: Consultant Solicitor Hayk Sayadyan
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