When to disapply subordinate legislation

It is still relatively uncontroversial to suggest that, as a matter of public law, public authorities must comply with legislation. But what should public authorities do where such compliance would actually result in a breach of a right under the European Convention on Human Rights? In RR v Secretary of State for Work and Pensions [2019] UKSC 52, the Supreme Court held that it is not unconstitutional for a public authority to disapply a provision of subordinate legislation to avoid breaching a convention right. This is necessary under the Human Rights Act 1998. Public authorities will be looking to the horizon to see what impact this decision may have more widely.

The facts

RR concerned the ‘bedroom tax’. This is a percentage reduction to rent provided through housing benefit if the number of bedrooms in a property exceeds the number defined as appropriate for the size of the household living there (regulation B13 of the Housing Benefit Regulations 2006).

The appellant in RR claimed housing benefit for a two-bedroom rented social housing property, which he shared with his severely disabled partner (two bedrooms were important because of his partner’s disabilities and her need to accommodate medical equipment and supplies). The local authority, applying regulation B13, decided that the couple were only entitled to one bedroom and so applied a 14% reduction.

The issue

The Supreme Court had found in 2016 that regulation B13 resulted in unjustified discrimination on the grounds of disability where there was a transparent medical need for an additional bedroom which was not catered for in the regulations (R (Carmichael) v Secretary of State for Work and Pensions [2016] UKSC 58).

The regulations were amended in March 2017 in light of the decision in Carmichael, but the amendments were not retrospective.  The main issue in RR was therefore how local authorities making decisions on housing benefit were supposed to decide such matters in claims relating to periods before March 2017, and in cases such as the appellant’s.

The decision

In a unanimous decision, the Supreme Court ordered that the appeal against the local authority’s decision should be allowed, and that the appellant’s housing benefit entitlement should be recalculated without the 14% deduction. In short, the court found that the duty on public authorities to act compatibly with convention rights trumps the duty to comply with subordinate legislation.

Lady Hale (pictured) explained that the HRA clearly distinguishes between primary and subordinate legislation. First, a distinction between the two is drawn in respect of the duty to ‘read and give effect to’ legislation in a way which is compatible with convention rights, so far as it is possible to do so (section 3(1)). This duty does not affect the validity, continuing operation or enforcement of incompatible primary legislation (section 3(2)(b)). However, the same is only true in respect of subordinate legislation if primary legislation prevents removal of the incompatibility (section 3(2)(c)). In other words, public authorities need not give effect to subordinate legislation, which cannot be read or given effect compatibly with convention rights, unless required to do so by the primary legislation. Second, public authorities may not act incompatibly with a convention right (section 6(1)) unless primary legislation requires the authority to act in that manner (section 6(2)). This exception to the rule in section 6(1) only applies in respect of primary legislation. So, public authorities must act compatibly with convention rights even if subordinate legislation would have them act otherwise.

Subordinate legislation is subordinate to the requirements of the HRA, as an act of parliament. Under section 6(1), it is unlawful for a public authority to act in a way which is incompatible with a convention right. As such, in order to comply with the HRA, subordinate legislation which results in a breach of a convention right must be disregarded by public authorities. In this case, the local authority (and the tribunals and courts subsequently considering the matter) should have disregarded the provisions of B13 in relation to the deduction, and their application in this case resulted in a breach of the HRA.

Comment

RR is an important case for public authorities, and a reminder that the consideration of convention rights can be an important part of decision-making. Simply following subordinate legislation (akin to ‘simply following orders’) is in these circumstances not an excuse for breaching convention rights. That said, the question of when a decision will result in a breach of convention rights is often complex, and public authorities will need to tread carefully before disapplying subordinate legislation (or risk acting unlawfully in a different manner). In addition, it will be important to check the position under the primary legislation. If the offending provision in subordinate legislation is giving effect to primary legislation, then the public authority will not be acting unlawfully by following the subordinate legislation despite its incompatibility (section 6(2)(b) HRA). While this complexity will task public law lawyers, as this case demonstrates, it has the potential to have a major impact on the day-to-day lives of citizens.

Melanie Carter is a partner and head of public and regulatory, and Alistair Williams an associate at Bates Wells