IN THE COURT OF APPEAL

ON APPEAL FROM THE SOCIAL SECURITY COMMISSIONER

(MR MESHER)

BETWEEN:-

EUGEN HERMAN HOCKENJOS

And

THE SECRETARY OF STATE

SKELETON ARGUMENT ON BEHALF OF MR HOCKENJOS

  1. This is an appeal from the decision of Commissioner Mesher dated 13th January 2003. It is brought pursuant to permission granted by the Commissioner himself. It raises important points of principle concerning the treatment of “shared care” situations in the benefit system.
  1. Mr Hockenjos has at all material times been unemployed and claiming non-contributory Jobseekers Allowance (“JSA”). He has had the care of his two daughters pursuant to the terms of a residence order, which are set out in paragraph 3 of the Commissioners decision letter (“DL”). The practical issue before the Commissioner was whether his JSA should be calculated on the basis that he was entitled to dependants additions for either or both of his daughters for various periods between the date of claim and the date of the Commissioner’s decision. He claimed to be so entitled because, he argued, to deny him those additions would discriminate against him on the grounds of sex contrary to Council Directive 79/7.
  1. His case has been before the Court of Appeal before. On 2nd May 2001 the Court (Aldous, Tuckey, Kay LJJ) allowed his appeal against the decision of Commissioner Goodman, holding that non-contributory JSA was a “statutory scheme” providing protection against the risk of unemployment and thus within the scope of 79/7. They remitted the question of whether there was discrimination contrary to that Directive to a Commissioner. The basic nature of the contentions then being made on behalf of Mr Hockenjos can be seen from paragraphs 34 to 37 of the judgment of Aldous LJ. Paragraphs 35 and 36 read:-

    “Questions of law on discrimination are best decided against the background of the facts. In this case it is arguable that it is discriminatory to link entitlement to the additional amount of jobseekers allowance to the entitlement to child benefit. Child benefit is a payment made to the person responsible for the child. It is not means-tested and it could be that more women than men are entitled to receive it. The additional amount of job-seekers allowance is a means-tested subsistence benefit. The very difference between the two payments could show that it was not logical to link the two together. For example it might be thought right by the Secretary of State, and in fact be right, that the child benefit should remain with the mother who provides accommodation, food and clothes for the child even though the child spends say two weeks in total with the father during the summer holiday. But the reasoning for that decision would appear not to apply to the question of whether the additional amount of jobseeker’s allowance should be paid for those two weeks when the child was staying with the father.
36. It may be that men are at a disadvantage when claiming for a dependant after separation. It is also possible that women are more likely than men to be the recipients of child benefit. That no doubt will, to a large extent, reflect the respective degrees of responsibility. But it seems to me arguable that the linking of the entitlement to the additional amount of jobseeker’s allowance to child benefit puts men at a disability to women both practically and theoretically.”
  1. The statutory scheme as it related to dependant’s additions for JSA; child benefit; and the most material parts of Directive 79/7 is set out in the judgment of Aldous LJ at paragraphs 4 to 14. Commissioner Mesher adopted this description for his purposes (see paragraph 3), and supplemented it as necessary. The most important provisions for the purposes of this argument are the terms of regulation 77 of the JSA regulations, set out in full at Mesher paragraph 6; and Article 4 of Directive 79/7, set out in full at paragraph 15 of Aldous LJ. It is well established that Article 4 is directly effective.
  1. It was accordingly Mr Mesher’s task to decide the issue of discrimination remitted to him by the Court of Appeal. Following receipt of an expert report commissioned on behalf of Mr Hockenjos (by Sally Holterman, dated 17/12/2001), the Secretary of State conceded that the condition that, in order to be entitled to a dependant’s addition for JSA one had to be in receipt of child benefit, had a disproportionate impact on men. Accordingly the remaining discrimination argument was whether the condition could be justified. Mr Mesher held that it could not – see paragraph 37. An important part of the argument on justification included the submissions that were made on behalf of Mr Hockenjos about the purpose of non-contributory JSA (as a subsistence benefit) and the scale of the impact on the man’s finances if no dependant’s additions or family premium are paid – see the submissions at paragraphs 30 to 32, accepted at paragraph 33. Those submissions are repeated. The practical concern is that if a person has shared care for substantial periods of time but does not receive dependant’s additions or family premium, he will be forced to live substantially below subsistence level. This effect is very different from that which typically exists within the child benefit scheme. Child benefit is not a subsistence benefit and the amounts paid are smaller.
  1. The consequence of Mr Mesher holding that the link between dependant’s additions and child benefit could not be justified was that he allowed Mr Hockenjos’ appeal in part – see paragraph 1. However, he went onto hold :-
    (i)                  that the rule in regulation 77(5), that in general “a child….shall be treated as the responsibility of only one person in any benefit week….” was unaffected by the argument (see paragraph 45). The result of obeying the injunction in Article 4 of 79/7 that “there shall be no discrimination whatsoever on the ground of sex ….” was that regulation 77(1) “is not be applied to either men or women in cases where the individuals concerned fall within the scope of Directive 79/7” (see paragraph 55). Thus the Commissioner’s method of achieving equality was (in part) to require the national authorities to deprive women of the benefit of a national rule that is favourable to them. This involves using the doctrine of direct effect as a sword not a shield in the hands of the State in cases not in front of the Commissioner. The fundamental submission on behalf of Mr Hockenjos is that the doctrine of direct effect does not allow the Commissioner to make the ruling he made in paragraph 55. 
(ii)                That the rule in regulation 77(5) was not in any event discriminatory (see again paragraph 45)
(iii)               That the rule in 77(3)(a), that where no person was receiving child benefit the person with whom the child or young person usually lives be treated as responsible for the child, was not discriminatory.
  1. It will be seen that despite the finding that the link with child benefit was not justifiable, the substantial but minority carer could still not obtain any dependants addition. Looking at the matter at the level of the week, a man who has the children to stay for 3 nights gets nothing, although the practical effect is to leave him substantially below subsistence level; at the level of the longer term, a man who has the children even for substantial periods in the school holidays once again may get nothing, since the rule in 77(3)(a) holds good and is not discriminatory. Once again, the practical effect is to leave the minority carer’s income substantially below subsistence level. It is to be remembered that Mr Mesher accepted the submissions recorded at paragraphs 30 to 33 DL.
  1. Each of these three issues will now be covered.

THE DOCTRINE OF DIRECT EFFECT

  1. It is respectfully submitted that the approach Mr Mesher took in paragraph 55 is fundamentally misconceived. The basic reasoning is that equality between the sexes can properly be achieved by denying women the benefit of the rule in reg 77(1); and requiring the national authorities to approach all JSA cases on the basis that 77(1) does not exist.
  1. The claimant’s submissions against this perspective was set out in submissions dated 7th October 2002. Those submissions are to be taken as incorporated into this skeleton.
  1. The basic fallacy is the belief that the doctrine of direct effect allows a state to take advantage of its own failure to properly implement a directive by denying an individual (in this case the woman) the benefit of a favourable national measure. No authority justifies this approach and it is contrary to basic principle. The doctrine disqualifies the state from relying upon its own failure to properly transpose the directive against an individual who seeks to rely upon the directive; it does not render any part of domestic law ultra vires or of no legal effect.
  1. Accordingly, the only way that Article 4 of the Directive can be given full effect to is to “equalise upwards” in the manner suggested by the submissions of 7th October 2002.

REGULATION 77(5)      

  1. The core of Commissioner Mesher’s reasoning on this point is contained in paragraph 45. It proceeds by establishing that regulation 77(5) plays two functions:-
    (i)                  It prevents double payment of benefit to more than one person for the same benefit period (“whether that is a week or a day”)
(ii)                it creates a rule under which responsibility for a child must be attributed for the whole of each benefit week.
  1. He held that effect (i) was justified; and that effect (ii) had not been shown to be discriminatory but even if it had been was justified as being “within the broad margin of discretion available to Member States to say whether a benefit, or some element of it, could be paid to any particular person on a part-week or only on a whole-week basis.”
  1. The fundamental problem with the Commissioner’s approach to justification is that it leaves untouched a situation in which the minority but substantial carer (typically the man) is left with an income substantially below subsistence level. The example of a man who has care for, say, three nights a week will make this clear. The woman will, in the example, receive all the dependant’s additions and family credit payable under the major UK means-tested benefits (ie either JSA or Income Support) if her financial position otherwise merits it; the man will receive nothing even if his financial position otherwise merits it. Given the subsistence nature of the benefit, this effect is difficult to justify even if one looks at an isolated week. If one looks at a longer period – say a year – the effect is very marked indeed. The minority but substantial carer who has care for say one third of the time is presumably expected to live with an income one third below subsistence level. A system which accepts this effect as a matter of routine is not acceptable. It is this perspective that lay behind the submission on the background which the Commissioner records at paragraph 32 DL and accepts at paragraph 33.
  1. The Commissioner held that effect (ii) was sexually neutral in its effect and was not discriminatory. This is not accepted. The evidence contained in Carol Smart’s material would plainly justify a conclusion that the substantial but minority carer who typically be the male; in any event this is one of those circumstances where detailed statistical evidence would not be necessary for a tribunal of fact. It is clearly the case that the man is substantially more likely to be in this position than the woman.

REGULATION 77(3)(a)

  1. The argument is very similar in relation to regulation 77(3)(a). The Commissioner’s approach to this regulation can be seen from paragraph 46. In essence, he held that on the assumption that the rule would “perpetuate the situation where the substantial, but minority, carers were left with an income substantially below subsistence level” (an assumption which is correct – see above) he went on to hold that the effect fell within the broad margin of discretion conferred on Member States.
  1. This approach to justification once again fails to grapple fully with the subsistence nature of the benefit in question; or to suggest any mechanism as to how it is in fact suggested the minority carer can order his affairs so as to have even a subsistence income in a period of involuntary unemployment. To take one, potentially commonplace example. The residence arrangements might provide for the child to live with the father through the period of the summer holidays – say 4/6 weeks. Such a period of residence would not, on the Commissioner’s approach, alter the fact that the child “usually” lived with the mother. But the whole point of a subsistence benefit providing protection against the risk of unemployment is that it prevents the claimant’s income falling below an acceptable level during (possibly short) periods of involuntary unemployment. It is because the UK Government’s approach to this commonplace problem produces no coherent answer that it is strongly submitted on behalf of Mr Hockenjos that the discrimination that is present cannot be justified.

Richard Drabble QC

22nd April 2003.

see also Draft Grounds of Appeal