Guidance

HB Bulletin U1/2020: RR –v– The Secretary of State for Work and Pensions

Published 10 January 2020

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This publication is available at https://www.gov.uk/government/publications/housing-benefit-urgent-bulletins-2020/hb-bulletin-u12020-rr-v-the-secretary-of-state-for-work-and-pensions

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Summary of judgment

On 13 November 2019 the Supreme Court handed down its Judgment in the above case.

The full Judgment is available at:

Judgment RR V SSWP

This case is follow up litigation from the Supreme Court decision in MA, A and Rutherford (MA); where the court found that the application of the regulations underpinning the Removal of the Spare Room Subsidy (RSRS) policy discriminated against disabled adults who are unable to share a bedroom because of their disabilities and disabled children who require a non-resident overnight carer.

Following that decision, the legislation was amended, with effect from 1 April 2017, to allow an extra bedroom when either a disabled child or disabled non-dependant adult reasonably requires overnight care from a non-resident carer, and to allow disabled adult couples an extra bedroom if their local authority (LA) determines that they cannot reasonably share as a result of a member of the couple’s disability.

In this case RR was seeking retrospective payments of Housing Benefit (HB) (in relation to the RSRS deduction) for the period before the regulations were amended.

The Supreme Court found against the Department and decided that public authorities should disregard provisions of secondary legislation that breaches a person’s rights under the European Convention on Human Rights where it is possible to do so. In this case, that meant not applying the RSRS deduction to RR’s HB award. As this was a Supreme Court decision there is no further right of appeal.

The ruling to dis-apply secondary legislation only applies to those individual Carmichael/Rutherford lookalike stayed cases regarding the retrospective payment of housing benefit following the subsequent change in legislation.

Effect of the Judgment

There are a number of lookalike appeals in the First Tier Tribunal and Upper Tribunal. These were stayed whilst the Supreme Court considered the RR case. The tribunals will now be deciding these cases in line with the decision in RR. That is likely to require payment of additional HB to those claimants.

LAs do not need to take any proactive steps to identify cases following this judgment; we expect the tribunal to contact you in relation to any relevant cases where payment of HB arrears are appropriate.

Normal processes will apply for the arrears payments and subsidy arrangements. Following any arrears payments, LAs when assessing any current awards, should apply normal arrears of benefit disregards in relation to capital amounts.

In some of these cases Discretionary Housing Payments (DHPs) will have been awarded to the benefit recipients. The backdated HB payments cannot be off-set against any DHPs that have been awarded.

The Department will issue a more detailed Q&A guide relating to the interaction of the decision with DHPs in due course, if you have any queries in the meantime please contact: housing.benefitenquiries@dwp.gov.uk

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