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Court: Supreme Court

Supreme Court rules that housing benefit entitlement should be calculated without deduction where Convention rights are at stake

RR (AP) v Secretary of State for Work and Pensions [2019] UKSC 52

This case considered the effect of the Supreme Court’s decision in R (Carmichael) v Secretary of State for Work and Pensions [2016] UKSC 58 upon the decision-makers in the housing benefit system and the First-tier Tribunal and the Upper Tribunal hearing appeals from local authority decisions – in claims relating to periods before the regulations governing the removal of the spare room subsidy, otherwise known as the “bedroom tax” were amended. The question for the Court was whether the regulations should apply in their original form or whether the housing benefit should be calculated without making the percentage deduction in cases where to do so would breach the Convention rights of the claimants in the way determined in the Carmichael and Rutherford cases.
The Supreme Court allowed the appeal. It made the same order as the UT made in Carmichael that (1) the appeal against the local authority’s decision of 5 March 2013 is allowed; and (2) that RR’s housing benefit entitlement was to be recalculated without making the under-occupancy deduction of 14%. The reason for doing so was the same as that which the UT gave, namely that if the deduction was applied, there would be a clear breach of RR’s Convention rights, contrary to the Human Rights Act 1998, section 6(1).

Judges do qualify as ‘workers’ for the purposes of whistleblowing

Gilham v Ministry of Justice [2019] UKSC 44

On appeal from: [2017] EWCA Civ 2220

The issue in the appeal is whether a District Judge qualifies as a ‘worker’ or a ‘person in Crown employment’ for the purpose of the protection given to whistle-blowers of the Employment Rights Act 1996, Part IVA. If not, is this discrimination against her in the enjoyment of her right to freedom of expression, protected by the ECHR, art 10 and art 14?

Held: The Supreme Court unanimously allows the appeal and remits the case to the Employment Tribunal on the basis that the appellant is entitled to claim the protection of  of the 1996 Act, Part IVA. The issue is whether the appellant’s work is performed pursuant to a contract with the recipient of that work or services, or pursuant to some different legal arrangement. Judges hold a statutory office, and office-holders do not necessarily hold office pursuant to a contract. It depends on the intention of the parties, which is reflected in the manner of engagement, the source and character of the rules governing service and the overall context. The failure to extend the Part IVA protections to judicial office-holders is a violation of the appellant’s right under article 14 not to be discriminated against in her enjoyment of the rights under the ECHR.

Parent’s consent to confine son to residential care, a breach of his human rights

In the matter of D (A Child) [2019] UKSC 42 

This appeal considers whether the confinement of D, a young person aged 16, who lacked capacity or competence to make decisions about his residence and care, amounted to a deprivation of his liberty for the purposes of art.5 ECHR, in circumstances where his parents were consenting to the confinement.

Held: The Supreme Court by a majority of 3 to 2 allows the appeal. Parental consent could not substitute for the subjective requirement under article 5 for valid consent to the deprivation. The procedural requirements of article 5 applied (and had in fact been complied with by the court authorisations.

The MCA does not override other common law and statutory provisions relating to 16 and 17-year-old children, but it does indicate an appreciation of the different needs of this age group. Article 5 ECHR protects children who lack the capacity to make decisions for themselves from being arbitrarily deprived of their liberty. Clearly the degree of supervision to which D was subject at the placements was not normal for a child of 16 or 17. D’s living arrangements had to be compared with those of children of the same age without disabilities, and the fact that they were made in his best interests did not mean he was not deprived of his liberty.

Supreme Court rules prorogation as unlawful

R (Miller) v Prime Minister, Cherry & Ors v Advocate General for Scotland [2019] UKSC 41

On appeal from: [2019] EWHC 2381 (QB) and [2019] CSIH 49.

Held: giving a unanimous judgment, the Court concluded that the case was about the limits of the prerogative power to advise Her Majesty to prorogue Parliament. The power to prorogue is limited by the constitutional principles – of Parliamentary Sovereignty and Parliamentary accountability – with which it would otherwise conflict. As such the decision was justiciable.

Supreme Court refuses to allow argument that respondent had acquired a right of permanent residence at the time of deportation decision

Secretary of State for the Home Department v Franco Vomero (Italy) [2019] UKSC 35

This appeal considered whether, on remittal to the Upper Tribunal, the respondent should be permitted to argue that he had acquired a right of permanent residence by the time of the decision to deport him was made.

The Supreme Court allowed the appeal of the Secretary of State. The Court granted a declaration that neither Directive 2004/38/EC, arts 28(2) nor 28(3) applied to the respondent at the date the appellant decided to deport him.
Considering the previous case law of the CJEU, and its judgment in this case, the Supreme Court considered it necessary to determine whether the respondent acquired a right of permanent residence by the time of the decision to deport him in reality, rather than just notionally. Only having determined this could the Court consider whether he had retained this right. Discussing the Opinion of the Advocate General, and the line of CJEU case law, the Supreme Court held that Lord Mance’s conclusion that the respondent had not acquired a right of permanent residence by the date of the decision to deport him was correct. This was because the period of imprisonment for more than two years which the respondent had undergone by 30 Apr 2006 prevented him from acquiring a right of permanent residence on that date, or at any subsequent time prior to 23 Mar 2007, when the decision to deport him was taken. The Court concluded, therefore, that the necessary period of five years’ continuous legal residence could not begin any earlier than 3 Jul 2006, when he completed the custodial part of his sentence, and would depend on his fulfilling the conditions for legal residence laid down in the Directive.
As such, the Court has remitted the respondent’s appeal to the Upper Tribunal to be reconsidered in accordance with this judgment.