Why private and public sector landlords need to know about RR v Secretary of State for Work and Pensions

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Private and public sector landlords should take note of a tenant’s recent housing benefit appeal to the Supreme Court.  RR v Secretary of State for Work and Pensions [1] addresses the interaction of housing benefit and other regulations with human rights legislation, and may have a practical impact on tenants’ defences to possession claims.

What are key takeaways?

  • Housing benefit decisions by a local authority can be appealed to a property tribunal
  • A public authority, court or tribunal can disapply a provision of subordinate legislation which would otherwise result in a breach of human rights law
  • The decision in RR v Secretary of State for Work and Pensions may widen the scope for housing benefit challenges
  • Raising the issue of the level of entitlement to housing benefit is often cited in possession proceedings by tenants and advisers and this can lead to adjournments and delays, particularly where only discretionary rent arrears grounds are relied on or are available to a landlord.

What happened in the particular case?

The tenant lived with his disabled partner.  In 2013, in accordance with the Housing Benefit Regulations 2006 regulation B13 (colloquially known as the ‘bedroom tax’), the landlord local authority calculated the tenant’s housing benefit on the basis that the couple only needed one bedroom.

In 2016, in a related case, the Supreme Court declared that where a tenant had a transparent need for an additional bedroom due to a disability, the application of regulation B13 resulted in unjustifiable discrimination contrary to the Human Rights Act 1998 and article 14 of the European Convention on Human Rights (the Convention).  In April 2017, the Housing Benefit and Universal Credit (Size Criteria) (Miscellaneous Amendments) Regulations 2017 (the 2017 Regulations) came into force to reflect that declaration, but they were not retrospective.

The tenant had appealed the housing benefit calculation to the Upper Tribunal, which had found unjustifiable discrimination.  The Secretary of State appealed and the matter was referred to the Supreme Court, which concluded, on 13 November 2019:

  • There is a distinction between Acts of Parliament (primary legislation) and subordinate legislation (such as Statutory Instruments/Regulations) and a public authority, court or tribunal can disapply subordinate legislation where doing so was necessary for compliance with the Human Rights Act and Convention rights.
  • Where discrimination is found, a local authority, court or tribunal can only ‘level up’. That means that if unjustifiable discrimination has resulted in one applicant being entitled to a benefit in a lower amount than another, the authority/tribunal has to find that the former applicant is also entitled to benefit in the higher amount. (In this case, that meant that the tenant’s housing benefit had to be recalculated without the single bedroom reduction.)

WM Comment

This case dictates how local authorities and tribunals should assess housing benefit claims which relate to the period before the 2017 Regulations came into force.

It also clarifies the constitutional status of human rights legislation and dictates that a provision of subordinate legislation which results in breach of Convention rights should be disapplied.

The principles emphasised in the case could lead to more housing benefit challenges.  Tenants (and particularly their advocates) may also choose cite the case in possession proceedings where entitlement to housing benefit is raised, which could, in turn, result in increased numbers of possession claims being defended and/or delayed.

[1] [2019] UKSC 52