[2025] UKUT 016 (AAC)

In short, properly construed, the effect of the 2023 Order is in my judgment retrospectively to create entitlements to BSP in respect of the period between 6 August 2018 and 9 February 2023 that did not exist at the time (even following the decision of the High Court in Jackson, given that the effect of a declaration of incompatibility under s 4 HRA 1998 does not affect the continuing validity of the legislation). However, claims to those entitlements could not be made prior to the coming into force of the 2023 Order on 9 February 2023, so that decisions by the Secretary of State and appeals by the Tribunal concerned with claims to BSP made prior to 9 February 2023 properly fell to be considered under the ‘old’ law even after 9 February 2023.

So far as the decision of the First-tier Tribunal in this case is concerned, it follows that there was no material error of law. The Tribunal was incorrect to state that “the decisions of the higher courts do not change the law as it was applied to a claim at the time”, because in general the decisions of the higher courts are ‘declaring’ the law as it has always been and thus do have the practical effect of changing the law (see Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349 at 378g–h, per Lord Goff of Chieveley). What the Tribunal said was, however, correct as regards the particular decision in the Jackson case because declarations of incompatibility under section 4 of the HRA 1998 leave the legislation in question continuing in force and effect. It is also the case that even if the Tribunal had properly considered the effect of the 2023 Order, the outcome would have been the same. Properly construed, the effect of the 2023 Order was to change entitlement to BSP retrospectively, but not to change the law that should be applied to claims for BSP made before the coming into force of that Order. It follows that the First-tier Tribunal was right to strike this claim out, albeit for the wrong reasons. In the circumstances, there is no need to set that decision aside and the appellant’s appeal against that decision does not succeed.