[2025] UKUT 035 (AAC)

On the question of remedy, the Tribunal can: (a) interpret the secondary legislation so as to achieve a Convention-compliant result, pursuant to s.3 of the Human Rights Act 1998; or (b) disapply an offending provision of secondary legislation: see RR v Secretary of State for Work and Pensions [2019] UKSC 52, [2019] 1 WLR 6430.

As to the former, the Tribunal can give effect to the MJ’s Convention rights by reading “the sum of any relevant increases” in regulation 55(2)(c), read with regulation 55(4), as meaning the actual increase in award attributable to elements included in the award under ss.9 to 12 (here, the difference between the LCWRA element and the carer’s element, which is £179.90). This results in MJ’s transitional protection eroding to £95.10, rather than being wiped out altogether. The word “sum” (as in the “sum of any relevant increases”) indicates that a sum should be done (i.e. calculating what the increase actually is, rather than simply looking at the quantum of the LCWRA element), which is precisely what this interpretation does.

Alternatively, applying RR, the relevant provision here is regulation 55(4). It can be “blue-pencilled” so that it reads: “"A “relevant increase” is an increase in the maximum amount, apart from the childcare costs element.” “Maximum amount” is defined in s.8(2) of the 2012 Act. The Secretary of State has not argued that RR does not provide a remedy in this case.

For these reasons, the Tribunal is invited to allow the appeal.