The Human Rights Act is an act of the United Kingdom parliament and takes precedence over subordinate legislation such as the regulation in question … This means that incompatible subordinate legislation must simply be ignored.

So said Baroness Hale in an important Supreme Court judgement yesterday. This is something we tell people on a daily basis. Without fail they are shocked, surprised, and then a lightbulb starts to switch on, a dimmer switch that slowly gets brighter as the social worker realises that policy that has been restricting someone’s rights can be challenged. When a person needing care is told, but human rights law is on your side, you can advocate for decision-makers to do it differently, not just to be kind (see Carlyn’s blog here) but as a matter of law.

Mr RR’s case: why he needed a bedroom to live with his disabled partner

This clear articulation of the legal position by the Supreme Court, in a unanimous decision, is certainly welcome. In this case, which deals with the “bedroom tax” (spare room subsidy), there are already over 100 people in the same situation as the person in the case, RR, whose lives will be changed. People like RR, who lives with a disabled partner that needs a room for medical equipment and supplies. But because they live in rented social housing, they have been told as a couple you only need 1 bedroom, so payments to cover the second bedroom are reduced, a reduction which people can’t make up from other sources (if it were that simple then housing benefit wouldn’t likely be needed in the first place).

In 2016 the Supreme Court ruled in a similar case, involving Mr and Mrs Carmichael, who are in a similar situation. The Court decided that under the Human Rights Act these regulations unlawfully discriminated against the people’s right to their private and family life and home. However, RR’s situation, like so many, is that their claim on the reduced housing benefit related to a period before the Regulations were amended by the Supreme Court ruling. When Sefton Borough Council made a 14% reduction to RR’s housing benefit, he appealed to the First Tier Tribunal. This raised a bug question: do people making decisions on housing benefits, including local authorities and the Tribunals, about situation in the period before the Regulations were amended by the Supreme Court, have to carry on applying the original regulations. Or whether they could calculate housing benefit without making the percentage deduction, as set out in the Carmichael case, and avoid breaching RR’s human rights.

Regulations that breach human rights should not be applied by decision-makers

The Supreme Court overturned a decision by the Court of Appeal and confirmed they duty of decision makers to uphold human rights laws and to not follow subordinate legislation that breaches human rights. As Baroness Hale so clearly explained:

“There is nothing unconstitutional about a public authority, court or tribunal disapplying a provision of subordinate legislation which would otherwise result in their acting incompatibly with a Convention right, where this is necessary in order to comply with the HRA. Subordinate legislation is subordinate to the requirements of an Act of Parliament. The HRA is an Act of Parliament and its requirements are clear.”

As has been noted by Leigh Day, the legal firm representing Mr RR, this ruling is hugely significant not just for RR but for the 130 couples with similar cases which were postponed until this case was decided. But this crystal-clear statement from the UK’s highest court has a wider impact. At BIHR we frequently work with decision-makers in public authorities, who are faced with following policies or regulations that will breach people’s human rights, and the people are the sharp end of these decisions trying to challenge them. We explain that the Human Rights Act (HRA) should be the foundation for other law and policy. There is the interpretive obligation to apply rules in a way that is compliant with human rights, so far as possible. This in itself is almost always news to the frontline staff, managers, leaders, commissioners, and advocacy and community groups we work with. As is position that whilst courts can declare Acts of Parliament as incompatible with human rights (but not strike this law down), subordinate legislation can be disapplied where it breaches human rights. The HRA makes a clear distinction between act of parliament (primary laws) and subordinate legislation (secondary laws). Again this is almost always new information to the people we support, yet it is vital to challenging and changing the way decisions are made, and improve people’s everyday lives and communities.

Changing everyday decisions to protect people

RR’s case is about the “bedroom tax”, but much of the wider welfare arena is set out in subordinate legislation, as are many of the rules that cover the decision that public bodies make every day about our lives. Ultimately the Human Rights Act is a law that set out the rights we all have, and which public authority decision-makers have legal duties to uphold every day. This judgement set out that subordinate legislation can be disapplied by public bodies (and courts or tribunals) where applying that subordinate legislation would breach a person’s legally protected human rights. We will continue to make sure all those we support, and the decision-makers we engage, know this; it is fundamental to achieving the aim at the heart of our Human Rights Act, a culture of respect for human rights:

“…one that fosters basic respect for human rights and creates a climate in which such respect becomes an integral part of our way of life and a reference point for our dealing with public authorities…in which all our institutional policies and practices are influenced by these ideas…The building of a human rights culture …[depends] not just on courts awarding remedies for violations of individuals' rights, but on decision-makers in all public services internalising the requirements of human rights law, integrating those standards into their policy and decision-making processes, and ensuring that the delivery of public services in all fields is fully informed by human rights considerations.” (Parliament’s Joint Committee of Human Rights)

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