Following a joint intervention by Public Law Project, Liberty and the Child Poverty Action Group in the case of RR v Secretary of State for Work and Pensions, the Supreme Court has ruled that public bodies, including the First-tier Tribunal, have the power and duty to disapply regulations that are not compatible with human rights legislation.

Read PLP, CPAG and Liberty’s joint submission

The ability to rely on human rights arguments in appeals to the First-tier Tribunal makes public law remedies much more accessible to individuals than having to apply for judicial review or even bring an HRA claim in the county court. 

The point of law in this case is of wide importance as it goes to the fundamental question of the extent of the powers of the judiciary in such circumstances and is not confined solely to welfare benefits.

Public Law Project Director Jo Hickman said: “This judgment re-affirms that people should be able to enforce their human rights under the ECHR in any court or tribunal, without having to bring separate legal proceedings – just as the Human Rights Act says they should be able to. 

“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 life-line.”

The ruling brings an end to two long-running legal cases which started out as challenges to unlawful ‘bedroom tax’ regulations and developed into a legal argument as to the power and duty of public bodies, including the First-tier Tribunal, to disapply regulations that breach human rights laws.


  • In 2016 the Carmichaels (and others) won a case in the Supreme Court in which they successfully argued that the bedroom tax was unlawful where it applied to adults who use a spare bedroom in their homes because a disability prevents them from sharing.[1]
  • The Supreme Court did not quash the relevant regulations and left it to the Government to decide how they should be amended to remove the incompatibility.  In the meantime, the local authority had continued to make a 14% deduction to the Carmichael’s housing benefit.
  • The Carmichaels had made a separate appeal against the decision on their housing benefit claim to the First-tier Tribunal, which concluded that they were indeed entitled to housing benefit without deductions being applied because of the ‘bedroom tax’. The First-tier Tribunal did this by effectively ‘reading in’ additional wording to the regulations.
  • The Government then appealed that decision to the Upper Tribunal, which held that the First-tier Tribunal had reached the right outcome but via the wrong route. The Upper Tribunal held that the correct approach was to disapply, or not give effect to, the parts of the regulations that were incompatible with the claimants’ ECHR rights.[2]
  • The Government appealed further to the Court of Appeal, which agreed with the Government’s argument and held that the First tier Tribunal and the Upper Tribunal should have calculated housing benefit on the basis of the regulations in force at the time, even though to do so led to a breach of their human rights.[3]
  • By this point, the regulations that were initially challenged had been amended, but these changes did not apply retrospectively, and the Court of Appeal ruling meant that the tribunals did not have the authority to provide a legal remedy for those who had been affected by the discriminatory regulations. The only way for the Carmichaels to proceed was to seek damages by making a County Court claim under s8 of the Human Rights Act, or by bringing a Judicial Review.
  • The Carmichaels did not appeal to the Supreme Court for a second time.
  • Meanwhile, RR brought a similar appeal through the tribunal system. Because of the similarities with the Carmichaels’ case, it was unsuccessful in the Upper Tribunal which then granted a leap-frog certificate, allowing the appeal to go straight to the Supreme Court.

Jo Hickman said: “Even though the Supreme Court ruled that applying the unlawful regulations to them would breach their human rights, both the Carmichaels and RR were effectively told that they would have to pursue separate and potentially expensive legal proceedings to get a remedy that would enforce those rights.  

“The outcome of this case reflects the hard work and perseverance of the appellant and their legal team.

“Today’s judgment means that future tribunal users should not find themselves in such an absurd situation. This is an important win for them and for the rule of law.

“PLP extends thanks to our co-interveners, CPAG and Liberty, to the team at Herbert Smith Freehills who represented us, and our counsel Martin Chamberlain QC (now Mr Justice Chamberlain), Tom Royston and Jennifer MacLeod, who all generously acted pro bono for us.”

Read PLP, CPAG and Liberty’s joint submission

Further information

The judgment can be read here.

RR was represented by Leigh Day. More information on the case is available from Leigh Day here.


About the Public Law Project

  1. PLP was set up to ensure that those marginalised through poverty, discrimination or disadvantage have access to public law remedies and can hold the state to account.
  2. Our vision is a world in which individual rights are respected and public bodies act fairly and lawfully. 
  3. Our mission is to improve public decision making and facilitate access to justice.
  4. Our priorities are to:
    • Promote and preserve the Rule of Law
    • Ensure fair systems
    • Improve access to justice

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[1] R. (on the application of Carmichael) v Secretary of State for Work and Pensions [2016] UKSC 58

[2] Secretary of State for Work and Pensions v Carmichael and Sefton BC (HB) (Housing and council tax benefits – rent restrictions) [2017] UKUT 174 (AAC)

[3] Carmichael v SSWP [2018] EWCA Civ 548; [2018] 1 WLR 3429