THE government has successfully appealed against a ruling that tribunals can “rewrite” legislation that is incompatible with human rights law.

Jayson Carmichael, who is the full-time carer of his wife Jacqueline, appealed when Sefton Council reduced their housing benefit in November 2012 by 14 per cent under the bedroom tax.

Ms Carmichael, who suffers from spina bifida, needs to sleep in a fixed position in a special bed and, as there is no space for an additional bed in her bedroom, the couple require a two-bedroom flat.

Mr Carmichael successfully appealed against the deduction at a first-tier tribunal before the government dragged him to an upper tribunal, which found last April that applying it would be a “clear breach” of the Carmichaels’ human rights.

But the Court of Appeal upheld the Department for Work & Pensions’ (DWP) appeal today against the upper tribunal’s decision, ruling that a tribunal could not “devise its own solutions to [human rights] violations” in benefits legislation.

The government argued that the existence of discretionary housing payments for those affected by changes in housing benefit meant that the upper tribunal should have “applied the legislation as enacted.”

Lord Justice Flaux said that the upper tribunal’s finding that “Mr Carmichael was entitled to payment of housing benefit without the 14 per cent reduction” amounted to an “impermissible rewriting” of the regulations.

He found that the upper tribunal “should have limited itself to determining that [the regulation] as it stood was incompatible with [human] rights” and that Mr Carmichael could have recovered any losses by “bringing a claim for damages in the civil courts.”

But Lord Justice Leggatt, who also upheld the appeal, ruled that the tribunals “had the power, and indeed the duty, to disapply” regulations that were “overridden by the Human Rights Act.”

The Court of Appeal refused permission to appeal against the ruling, but Mr Carmichael could still apply directly to the Supreme Court. He said that he was “taking stock of whether to quit the case or not.”

Linda Burnip from Disabled People Against the Cuts said the case “seems to indicate that the court are not really being as helpful as they could be.”

She added that it showed that “the DWP are quite happy to spend huge amounts of money just to make sure that people can’t win cases.”

In a separate judicial review of the bedroom tax brought by Ms Carmichael, the Supreme Court ruled in November 2016 that the government had acted unlawfully against the couple in reducing their housing benefit.