THE SOCIAL SECURITY
COMMISSIONERS
COMMISSIONER: MR J
MESHER
Applicant: Eugen Herman
Hockenjos
[ORAL
HEARING]
1. The claimant's appeal to the
Commissioner is allowed. The decision of the Whittington House appeal tribunal
dated 11 August 1998 is erroneous in point of law, for the reason given below,
and I set it aside. It is expedient for me to substitute the decision on the
applicant's appeal against the adjudication officer's decision given on 7
January 1998 (Social Security Act 1998, section 14(8)(a)(ii)). My decision is
that the claimant's entitlement to jobseeker's allowance from 16 December 1997,
down to 7 January 1998, is to be calculated with the inclusion of the family
premium and of a personal allowance for his daughter Heidi, but not for his
daughter Jade, in his applicable amount. His entitlement to jobseeker's
allowance for the period from 8 January 1998 down to the present is to be
calculated by the Secretary of State on the basis of the principles of law and
findings of fact set out below and of any changes of factual circumstances to be
agreed between the Secretary of State and the claimant's representatives. If
there is disagreement about the changes of factual circumstances that have
occurred or about the consequences on the claimant's entitlement to jobseeker's
allowance, the case is to be returned to me (or, if necessary, to another
Commissioner) for further decision.
2. The claimant has succeeded on
several significant points of law which were before me for decision. My decision
on the facts is more favourable to him than the adjudication officer's decision
under appeal, but not to the full extent argued for on his
behalf.
3. The background circumstances
and the relevant legislation have already been set out at earlier stages of this
case, in particular by the Court of Appeal on 2 May 2001. Here I shall set out
only what is necessary for the understanding of my decision. The claimant
separated from his wife and they lived apart. On 6 October 1997 a "residence
contact specific issue order" was made under section 8 of the Children Act 1989
under which their two daughters Heidi (born in 1983) and Jade (born in 1990)
were to reside with both spouses. It is fairly clear that some parts of the
title of the order should have been deleted and that, since it only dealt with
residence, it was a residence order within section 8(1). Where such an order is
made in favour of two or more persons who do not share a household (section
11(4)) it is usually called a shared residence order. Paragraphs 2 to 5 of the
order of 6 October 1997 specified the particular times for which each child was
to reside with each spouse. At earlier stages the division has been described as
roughly equal within each week, but it is necessary to look at the exact
provisions:
"2. The
children shall reside with the mother at the following times:
During school
term time
Heidi Thursday - Monday
Jade Wednesday -
Monday
During
school term time
Heidi Monday - Thursday
4. Every fourth week the days shall be changed so
that Heidi resides with her father from Sunday at 11.00 am until Wednesday, and
Jade resides with her father from Sunday at 11.00 am until Tuesday. In this
respect responsibility for transportation of the children- shall be divided
between the parents equally.
5. All of the school holidays shall be divided
between the parents equally."
At the appeal tribunal hearing on
11 August 1998 the claimant produced a document headed "shared residence claim"
(see pages 65 and 48A) in which it was said that Heidi lived with the claimant
for 169 days out of the year and Jade for 131 days. However, it was not stated
over what period those days were computed (did it include periods before the
order of 6 October 1997?) or whether the calculation was in terms of overnight
stays, periods of 24 hours or any other meaning of "day".
4. The claimant claimed
jobseeker's allowance (JSA) on 16 December 1997. On the claim form he said that
his daughters would stay with him for a full week in the Christmas holidays (26
December 1997 to 2 January 1998) and in other weeks stayed with him from Monday
to Thursday. The claimant's wife was then in receipt of child benefit in respect
of both daughters. The adjudication officer's decision on 7 January 1998 was to
award income- based JSA with no personal allowances for the daughters or family
premium. The claimant did not claim child benefit for his daughters until 25
November 1998. He was then awarded child benefit in respect of Heidi, apparently
from 21 December 1998. His JSA award was reviewed to give him a personal
allowance for Heidi, and presumably also the family premium. That personal
allowance seems to have continued in payment until Heidi's exclusion from child
benefit (presumably on ceasing full- time secondary education). The claimant has
continued to be entitled to income- based JSA down to the
present.
5. The adjudication officer's
initial decision was entirely in accordance with the Jobseeker's Allowance
Regulations 1996 (the JSA Regulations). Regulation 83(b) provides for a personal
allowance for a child (ie under 16) or young person (ie child of 16 to 19 in
secondary education) who is a member of the claimant's family. The definition of
"family" in section 35(1) of the Jobseekers Act 1995 includes a member of the
same household for whom the claimant is responsible and who is a child or a
young person. Regulation 83(d) provides for a family premium for a claimant who
has a family including a child or young person. Thus, through the definition of
family, responsibility for a child is an essential part of the qualification for
a personal allowance or a family premium. Paragraph 13 of Schedule 1 to the
Jobseekers Act 1995 authorises the making of regulations "as to the
circumstances in which one person is to be treated as responsible or not
responsible for another".
6. Regulation 77 of the JSA
Regulations provides:
"(1)
Subject to the following provisions of this regulation, a person is to be
treated for the purposes of the Act as responsible for a child or young person
for whom he is receiving child benefit.
(2) In
a case where a child ('the first child') is in receipt of child benefit in
respect of another child ('the second child'), the person treated as responsible
for the first child in accordance with the provisions of this regulation shall
also be treated as responsible for the second child.
(3) In
the case of a child or young person in respect of whom no person is receiving
child benefit, the person who shall be treated as responsible for that child or
young person shall be
(a)
except where sub- paragraph (b) applies, the person with whom the child or young
person usually lives; or
(b)
where only one claim for child benefit has been made in respect of the child or
young person, the person who made that claim.
(4)
Where regulation 78(7) (circumstances in which a person is to be treated as
being or not being a member of the household) applies in respect of a child or
young person, that child or young person shall be treated as the responsibility
of the claimarit for that part of the week for which he is under that regulation
treated as being a member of the claimant's household.
(5)
Except where paragraph (4) applies, a child or young person shall be treated as
the responsibility of only one person in any benefit week and any person other
than the one treated as responsible for the child or young person under this
regulation shall be treated as not so responsible."
7. Regulation 78(7), mentioned in
regulation 77(4), applies to children being looked after by local authorities or
who are in custody and are allowed home for only some days in the week. Those
are the only circumstances in which responsibility can exist for less than a
benefit week as a whole and plainly do not apply in the present case. The
general rule in regulation 78(1) is that any child for whom a person is treated
as responsible under regulation 77 is to be treated as a member of that person's
household notwithstanding temporary absences. In the present case, Heidi and
Jade were undoubtedly members of the claimant's household throughout the
relevant period both under regulation 78(1) and the ordinary meaning of
membership of a household. None of the exceptions in the rest of regulation 78
apply. Therefore, no more attention needs to be given to that condition. The
crucial condition is that of responsibility.
8. It is convenient to give a
brief summary of the child benefit rules here. It is a condition of entitlement
to child benefit that a person is responsible for the child in question (Social
Security Contributions and Benefits Act 1992, section 141), but responsibility
is given a wide meaning in section 143(1). It covers both situations where the
child is "living with" the person (section 143(1)(a)) and where the person is
contributing to the cost of providing for the child at a weekly rate at least as
high as the weekly child benefit which would be payable (section 143(1)(b)). The
"living with" condition can be satisfied if the child is carrying on a settled
course of daily living with the person for some part of the week, but not by
mere transitory presence (see Commissioners' decisions R(F) 2/79 and R(F) 2/81)
and there are provisions in the rest of section 143 for a person to be treated
as continuing to have a child living with him notwithstanding absences. It is
obvious that there will be many cases it which more than one person would meet
the condition of being responsible for a child. In such a situation the question
of which person is to be entitled to child benefit is to be decided in
accordance with Schedule 10 (section 144(3)).
10. It can be noted at this point
that a question to be resolved by Schedule 10 only arises when there are
competing claims for child benefit in respect of the same child. If only one
person claims (as was the case here for Heidi and Jade until 25 November
1998), it is enough to come within the wide meaning of responsibility in section
143(1). When the competing child benefit claim was made by the claimant, none of
paragraphs 1 to 4 of Schedule 10 would have disposed of the issue of entitlement
and there was no joint election. Therefore, the Secretary of State must have
exercised his discretion under paragraph 5 to grant entitlement the claimant in
respect of Heidi, and necessarily remove entitlement from the claimant's wife. I
have as part of the evidence before me a witness statement made for the purposes
of another case (R (On the application of Barber) v Secretary of State for
Work and Pension) from a Mr Ian Sprawson, head of the Child Benefit Policy
Section in the Department for Work and Pensions, which deals in part with how
representatives of the Secretary of State go about exercising the discretion
under paragraph 5.
11. The claimant appealed against
the adjudication officer's decision of 7 January 1998, on the main ground that
regulation 77 of the JSA Regulations was discriminatory against men in his
position and was therefore contrary to Article 4 of EC Council Directive No
79/7/EEC on the progressive implementation of the principle of equal treatment
for men and women in matters of social security. Article 4(1) provides that, in
cases within the scope of the Directive, there is to be:
"no
discrimination whatsoever on grounds of sex either directly or indirectly by
reference in particular to marital or family status, in particular as
concerns:
- the calculation of benefits
including increases due in respect of a spouse and for dependants and the
conditions governing the duration and retention of entitlements to
benefit."
The claimant's argument was that
the child benefit priority rules favoured mothers over fathers so that the
linking rule for JSA was discriminatory. The appeal tribunal of 11 August 1998
disallowed his appeal.
12. The claimant appealed to the
Social Security Commissioner. On 2 May 2000 Mr Commissioner Goodman set the
appeal tribunal's decision aside as erroneous in point of law, because it had
failed to deal adequately with the claimant's contentions on the validity of
regulation 77 of the JSA Regulations. However, the Commissioner confirmed the
adjudication officer's decision. He rejected the claimant's arguments that
regulation 77 was ultra vires. He also decided that income- based JSA was not
within the scope of Directive 79/7, so that Article 4 could not be relied on.
The claimant made a further appeal to the Court of Appeal, which was allowed on
2 May 2001.
13. The Court of Appeal held that
JSA constituted one statutory scheme, encompassing both the contribution- based
and the income- based routes to entitlement, which provided protection against
the risk of unemployment. It was therefore within the scope of Directive 79/7
under Article 3(1)(a). On the question of whether Article 4(l) was breached
Aldous LJ said this:
"[35] 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 jobseeker's 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 jobseeker's allowance is a meanstested
subsistence benefit. The very difference between the two payments could show
that it was not logical to link the two together. For example it could 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 to be 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.
[37]
For my part I would not wish to express any concluded view as to the arguments
advanced by [counsel for the claimant and for the Secretary of State] as to the
discriminatory effect of linking entitlement to the additional amount of
jobseeker's allowance. It appears to me best that the facts be found, in so far
as they are available, and then to consider the submissions of the parties on
the law against that background."
Accordingly, the case was
remitted back to a Commissioner to consider the issue of
discrimination.
14. Written submissions were then
made on the question of discrimination, a process which unfortunately took a
very long time owing to the claimant's solicitors' wish to commission an expert
statistical report. An oral hearing was held on 7 May 2002. The claimant
attended and was represented by Richard Drabble QC, instructed by Hugh James
Ford and Simey, solicitors. The Secretary of State was represented by Natalie
Lieven of counsel, instructed by the Solicitor to the Department for Work and
Pensions. Following the hearing I directed further written submissions on the
question of what rules should be applied if I found that there was unjustified
discrimination contrary to Article 4(1) of Directive 79/7. Unfortunately that
also took a long time, as a result of requests for extensions of time on both
sides, a mix-up over whether further evidence was going to be put forward by the
claimant's solicitors and unlucky timing in relation to periods when I was on
leave.
15. A number of issues were
agreed. It was accepted on both sides that the appeal tribunal of 11 August 1998
had erred in law for the reasons found by Mr Commissioner Goodman. As the
allowing of the appeal against his decision would seem to have deprived all of
that decision of any legal force, it is necessary for me to set aside the
decision of the appeal tribunal of 11 August 1998 as erroneous in point of law.
I do so.
16. It was also agreed that, if
possible, I should substitute a decision on the claimant's appeal against the
adjudication officer's decision of 7 January 1998, rather than remit the case to
a new appeal tribunal. There is a problem in taking that course. Since the
claimant's appeal was made before 21 May 1998, it is free of the rules
introduced by the Social Security Act 1998. Therefore, I would be redetermining
the facts and be required to consider the facts for the whole period from 16
December 1997 down to the present (see the decision of the Tribunal of
Commissioners in R(IS) 17/94). The problem is that, although there was evidence
as to the circumstances at and around the dates of the claim and of the
adjudication officer's decision, evidence had not been put forward about the
circumstances (for instance the pattern of residence of Heidi and Jade or
later decisions on child benefit). Some gaps have now been filled in, but I
would still have great difficulty in saying how the claimant's JSA entitlement
should be calculated for the whole period in issue. Mr Drabble and Ms Lieven
agreed that I should substitute a decision on the circumstances as at the date
of the adjudication officer's decision, on the principles of law which I found
to apply, leaving it to be worked out later how that result should apply for the
rest of the period in issue. That is what I have done in my decision set out in
paragraph 1 above.
17. Finally, the Court of Appeal
having conclusively decided that income- based JSA falls within the material
scope of Directive 79/7, there is no dispute that the claimant falls within the
personal scope of the Directive. The questions of law which remain are whether
regulation 77 of the JSA Regulations embodies discrimination on the ground of
sex, contrary to Article 4(l) of the Directive, which cannot be objectively
justified and, if so, what the effect is on the provisions which are to be
applied in the claimant's case.
"a statistical discrimination in
favour of women in respect of the working of the rules of entitlement to child
additions to JSA(IB). The Secretary of State therefore does not challenge the
statistics in the report and seeks to defend the case on the grounds of
objective justification alone."
Thus it was necessarily accepted
that the effect of making the qualification for personal allowances for children
and the family premium in income- based JSA depend on the receipt of child
benefit was that there was a considerable difference between the proportion of
men in the relevant pool who could qualify and the proportion of women in the
relevant pool who could qualify.
19. I am content to accept that
concession. There is then no need for me to go into the difficult questions
often involved in identifying whether or not a particular rule has a
disproportionate impact on one sex. The claimant's case under Article 4(1) of
Directive 79/7 is therefore made out, unless the Secretary of State shows
objective justification unrelated to any discrimination on the grounds of
sex.
20. The first question is of what
test is to be applied as a matter of EC law. Here the differences between Mr
Drabble and Ms Lieven were largely on matters of emphasis. The test was re-
stated by the European Court of Justice (ECJ) in the particular context of
Directive 79/7 in Nolte v T Landesversicheningsanstalt Hannover (Case C- 317/93)
[1995] ECR I- 4625 in paragraphs 28, 33 and 34:
"28. As
the Court has consistently held, Article 4(1) of the Directive precludes the
application of a national measure which, although formulated in neutral terms,
works to the disadvantage of far more women than men, unless that measure is
based on objective factors unrelated to any discrimination on grounds of sex.
That is the case where the measures chosen reflect a legitimate social policy
aim of the Member State whose legislation is at issue, are appropriate to
achieve that aim and are necessary in order to do so (De Weerd,n nee Roks and
others, C- 343/92 [1994] ECR I- 571, paragraphs 33 and
34).
33. The
Court observes that, in the current state of Community law, social policy is a
matter for the Member States (see Commission of the European Communities v
Kingdom of Belgium, C- 229/89 [1991] ECR 1- 2205, paragraph 22). Consequently,
it is for the Member States to choose the measures capable of achieving the aim
of their social and employment policy. In exercising that competence, the Member
States have a broad margin of discretion.
34. It
should be noted that the social and employment policy aim relied on by the
German government is objectively unrelated to any discrimination on grounds of
sex and that, in exercising its competence, the national legislature was
reasonably entitled to consider that the legislation in question was necessary
in order to achieve that aim."
The ECJ held that the exclusion
of persons in minor employment from compulsory insurance for social security
purposes was justified by the German government's policy aim of fostering the
existence and supply of such employment, for which there was a social
demand.
21. In decision R(FC) 2/98, Mr
Commissioner Wheeler made a careful analysis of Nolte and three other
cases (Megner and Scheffel v Innungskrankenkasse Vorderpfalz (Case C-
444/93) [1995] ECR I- 4741, Postuma- van Damme v Bestuur van de
Bedrifsvereniging voor Detailhandel, Ambachten en Huisvrouwen (Case C-
280/94) [1996] ECR I- 179 and Laperre v Bestuurscommissie Beroepszaken in de
Provincie Zuid Holland (Case C- 08/94) [1996] ECR I273) and accepted without
hesitation that the British government has a broad margin of discretion in
relation to social and employment policy and that it is the responsibility of
ministers and not the courts to decide how those policies should be implemented
by legislation. I do not need to repeat that analysis here, but can move to the
most recent decision relied on by Ms Lieven.
22. That is R v Secretary of
State for Employment, ex parte Seymour- Smith (Case C167/97) [1999] ECR I-
623, in which the condition of two years' employment for bringing an unfair
dismissal claim was challenged as contrary to Article 119 (now Article 141) of
the Treaty of Rome. The Court said the following:
"69. It
is settled case law that, if a Member State is able to show that the measures
chosen reflect a necessary aim of its social policy and are suitable and
necessary for achieving that aim, the mere fact that the legislative provision
affects far more women than men at work cannot be regarded as a breach of
Article 119 of the Treaty: see, in particular, Megner v Innungskrankenkasse
Vorderpfalz (Case C- 444/93) [1995] ECR I4741, 4754, paragraph 24, and
Freers [1996] ECR I- 1165, paragraph 28.
70. In
this case, the United Kingdom Government contends that the risk of exposure of
employers to proceedings for unfair dismissal brought by employees who had only
fairly recently been engaged would be a deterrent to recruitment, so that
extension of the qualifying period for protection against dismissal would
stimulate recruitment.
71. It
cannot be disputed that the encouragement of recruitment constitutes a
legitimate aim of social policy.
72. It
must also be ascertained, in the light of all the relevant factors and taking
into account the possibility of achieving the social policy aim in question by
other means, whether such an aim appears to be unrelated to any discrimination
based on sex and whether the disputed rule, as a means to its achievement, is
capable of advancing that aim.
73. In
that connection, the United Kingdom Government maintains that a Member State
should merely have to show that it was reasonably entitled to consider that the
measure would advance a social policy aim. It relies to that end on Nolte v
Landesversicherungsanstalt Hannover (Case C- 317/93) [1995] ECR I-
4625.
74. It
is true that in the Nolte case, at page 4660, paragraph 33, the Court observed
that, in choosing the measures capable of achieving the aims of their social and
employment policy, the Member States have a broad margin of
discretion.
75.
However, although social policy is essentially a matter for the Member States
under Community law as it stands, the fact remains that the broad margin of
discretion available to the Member States in that connection cannot have the
effect of frustrating the implementation of a fundamental principle of Community
law such as that of equal pay for men and women.
76.
Mere generalisations concerning the capacity of a specific measure to encourage
recruitment are not enough to show that the aim of the disputed rule is
unrelated to any discrimination based on sex or to provide evidence on the basis
of which it could reasonably be considered that the means chosen were suitable
for achieving that aim."
23. There is some looseness in
the use of language in those paragraphs. Ms Lieven accepted that, in the light
of the Court's adoption of the statement in Nolte as part of settled case
law, there was no intention to dilute the condition that a measure is suitable
and necessary to a legitimate social policy aim into a condition that the
measure is merely suitable. I think that that must be right, although when the
House of Lords decided the case according to the answers given by the ECJ, Lord
Nicholls applied a test of whether the government could reasonably consider that
the means chosen were suitable for attaining a legitimate aim of its social
policy ([2000] IRLR 263, at 270). I consider that that must be understood merely
as a reflection of the Member State's broad margin of discretion and that the
proper test to be applied is that formulated in paragraphs 33 and 34 of
Nolte.
24. Although it is very difficult
indeed to find a clear and consistent approach in the many judgments of the ECJ
(including many I have not mentioned), I am fortified in the conclusion
expressed above by the way that the test has been put in more recent decisions
of the ECJ on EC Directive 76/207/EEC (on equal treatment in access to
employment and in working conditions). Paragraph 41 of the judgment in
Jorgensen v Foreningen of Speciallaeger (Case C- 226/98) [2000] ECR I-
2447 is as follows, and is repeated in paragraph 49 of Kachelmann v Bankhaus
Hermann Lampe KG (Case C- 322/98) [2000] ECR I- 7505:
"As
Community law stands at present, social policy is a matter for the Member
States, which enjoy a reasonable margin of discretion as regards the nature of
social protection measures and the detailed arrangements for their
implementation (see Case C- 229/89 Commission of the European Communities v
Kingdom of Belgium [1991] ECR 1- 2205, paragraph 22, and Case C- 226/91
Molenbroek [1992] ECR 1- 5943, paragraph 15). If they meet a legitimate aim of
social policy, are suitable and requisite for attaining that end and are
therefore justified by reasons unrelated to discrimination on grounds of sex,
such measures cannot be regarded as being contrary to the principle of equal
treatment ...”
Although the margin of discretion
was considered in those decisions (being described as a reasonable margin,
rather than a broad margin), it was regarded as settled that for justification
the means adopted to meet the legitimate aim of social policy must be both
suitable and requisite.
25. Ms Lieven stressed the broad
margin of discretion. Mr Drabble stressed that in Seymour- Smith the ECJ
rejected the United Kingdom government's submission described in paragraph 73 of
the judgment. It was not enough for the government simply to show that it was
reasonably entitled to consider that the measure would advance a social policy
aim. The broad margin of discretion had to be balanced against fundamental
principles of Community law, which would include equality of treatment between
the sexes. That seems to me right, and not to be inconsistent with any of Ms
Lieven's submissions. It is all a question of balance in the circumstances of
particular cases, or, in other words, proportionality. Similarly, there was an
interesting statement in paragraph 72 of the ECJ's judgment that relevant
factors included the possibility of achieving the social policy aim by other
means. However, it was a matter of agreement between Ms Lieven and Mr Drabble
that the mere fact that other means could have been chosen does not exclude the
existence of objective justification (as is shown by many cases including
Postuma- van Damme). Again it is a question of balance. It is therefore
necessary to consider the arguments made on the particular circumstances of the
claimant's case, and I deal with the more detailed aspects of the Community law
test in the process of doing that.
26. The first step for the
Secretary of State in attempting to show objective justification is to identify
the social policy aim which is said to provide the justification. In her written
skeleton argument Ms Lieven stated that the purpose of child additions to
income- based JSA is to provide benefit to cover the costs of the maintenance of
a child, for which purpose it was reasonable for the Secretary of State to
ascertain who has responsibility for a child. I presume that that was intended
to extend to the family premium as well. At the oral hearing, when specifically
asked to define the social policy aim relied on, she identified it as that the
elements of income- based JSA which are linked to the presence of a child in the
claimant's family should be paid to the person who is responsible for the child.
She said that that was a legitimate aim. I accept that second formulation as
specifically related to regulation 77 of the JSA Regulations, in the context of
the broader aim mentioned in the skeleton argument. Ms Lieven's submission was
then that the Secretary of State was reasonably entitled when making the JSA
Regulations to consider that it was suitable (and necessary, if that was the
test) to make the issue of responsibility depend on the receipt of child
benefit, and that his choice of that rule in regulation 77 was within the broad
or reasonable margin of discretion allowed under Article 4(l) of Directive
79/7.
27. A number of factors were put
forward in support of that submission. Very briefly, it was said that there were
considerable advantages in the administration of JSA and for claimants. There
was a clear and straightforward rule to be applied by officers deciding income-
based JSA claims which gave rise to no problems in the vast majority of cases.
Where there was some question of the sharing of responsibility for children,
claimants were not exposed to two sets of possibly intrusive investigations into
personal matters. It was mentioned that a witness statement from Mr Craig Binns,
a senior executive officer in the Department for Work and Pensions, in charge of
legislative and implementation requirements for issues including premiums and
personal allowances in income- related benefits, gave evidence of difficulties
which were experienced in deciding cases under the income support rules as they
were before amendment in 1993, when there was a separate test in terms of
primary responsibility for the child. It was submitted that the test in
regulation avoided the difficulties which would arise if one person were to be
treated as responsible for a child for child benefit purposes and another person
were treated as responsible for income- based JSA purposes. That was said to be
an inconsistency wrong in itself, or possibly by reference to an argument that
the JSA rates were set on the assumption that child benefit would be deducted as
income. It was also said that, since the child benefit test identified the
primary carer for a child, who was likely to bear the main burden of capital
expenditure on the child, it was wrong for the JSA allowances and premiums to go
to anyone else. The benefit should go to the person who incurred the major
expenditure on the maintenance of the child. Also, if a person in receipt of
child benefit and entitled to incomebased JSA or income support did not
qualify for those allowances and premiums, the child benefit would nonetheless
be deducted as income.
28. Ms Lieven noted that the
child benefit rules themselves were not under challenge in the present case, and
in any case it was submitted that any discrimination against men in those rules
was amply justified by the aim of providing an independent income to the woman
where parents were living together. In particular, it was submitted that the
exercise of discretion by the Secretary of State under paragraph 5 of Schedule
10 to the Social Security Contributions and Benefits Act 1992 was gender-
neutral. There was flexibility in the child benefit scheme to reflect changes in
the residence of the child, with a short delay (three weeks) in changing
entitlement to enable decisions to be made and the parents to make any necessary
arrangements. Ms Lieven submitted that the questions involved and evidence
relevant was essentially the same in relation to both child benefit and income-
based JSA, so that it was entirely rational to make the answer to the question
for child benefit purposes conclusive for income- based JSA purposes. There
would be difficulties at the margins and some hard cases involved whatever rule
was adopted for deciding who was responsible for a child. The existence of such
difficulties or hard cases did not undermine the justification for a rule which
worked with no difficulty in the great majority of cases.
29. Submissions were also made
about the consequences of allowing a splitting of the JSA personal allowances
and family premium within a benefit week, and on the difficulties which might
arise if a person moved in an out of meeting the conditions of entitlement for
income
30. I do not need to set out all
of Mr Drabble's submissions on the issue of justification, as I have not been
persuaded by the submissions for the Secretary of State. However, I should
mention two major elements in his submissions. The first was that income- based
JSA is a subsistence benefit. It is a last resort benefit which is means-
tested, so that most other social security benefits (including child benefit)
and other sources of income are taken into account against fixed personal
allowances and premiums in determining the amount of entitlement. The structure
of personal allowances and premiums, with provision for housing costs in some
circumstances, was designed to tailor the amount of benefit to the current
actual needs of particular claimants, albeit through the use of fairly broad
categories of circumstances. There could be adjustments on a week by week basis
as circumstances changed. Mr Drabble stressed the amounts involved. Using weekly
figures as at the date of claim, the claimant's personal allowance as a single
person (all that he was awarded in the decision of 7 January 1998) was £49.15.
The personal allowance for a child aged over 11 and under 16 was £24.75. The
family premium for a lone parent was £15.75. Mr Drabble stressed that the
claimant did in fact have real financial needs stemming from his responsibility
for his daughters for about half of the time. The effect of not having
entitlement to any personal allowance at all for his daughters or to the family
premium was to leave his income very substantially short of what the JSA
legislation recognised as necessary for the proper care of
children.
31. Mr Drabble made two
particular points following on from that. One was that the nature and extent of
the effect of the admitted discrimination had to be taken into account in
deciding whether the discrimination was objectively justified. The second was
that income- based JSA as a subsistence benefit designed to meet needs was very
different in its nature from child benefit, as described in paragraphs 16 and 17
of Mr Sprawson's witness statement:
"It [child benefit] is a non-
contributory benefit, funded from general taxation .... It is an unusual social
security benefit in that it is 'universal', being paid, tax free, irrespective
of the means of the recipient. Consequently , it has the highest take- up of any
noncontributory benefit, and the second highest of any benefit behind the state
pension, being paid to around 7 million families in respect of nearly 13 million
children . ... Whilst there are a very high number of claimants for CHB, the
amounts payable are relatively small, as compared with other social security
benefits. This is because CHB has never been intended to meet the full costs of
bringing up a child, but is intended as a contribution towards those
costs."
As at December 1997, the weekly
rates of child benefit were £11.05 for the first or only child (£17.10 in the
case of alone parent) and £9.00 for subsequent children. The special rate for
lone parents was removed in July 1998. Mr Drabble submitted that the factors of
large numbers of claimants being entitled to relatively small weekly amounts
(not linked to current actual needs), which would point towards simple rules and
against frequent changes of claimant or amount, did not apply to income- based
JSA.
32. The other major element of
the submissions for the claimant was that his was not a case of a small anomaly
at the margins, but demonstrated a fundamental structural problem in the way in
which the costs of caring for children were taken into account in income- based
JSA. Mr Drabble submitted that the effect on the claimant could not be dismissed
as merely an example of a small number of inevitable hard cases on the wrong
side of a borderline.
33. I accept both of those
submissions of Mr Drabble and adopt them as showing the essential background to
the question which I must decide. That is subject to the proviso that I must
look in the current context at the results of the discrimination on the ground
of sex which is complained of, not at hardship or unfairness arising from other
causes.
34. In evaluating the case made
for the Secretary of State it is necessary to look in a little more detail at
the operation of the child benefit system. First, it seems to me very important
that the priority rules in Schedule 10 do not purport to determine who is or is
to be treated as responsible for a child. They determine who is to be entitled
to child benefit in respect of a child. As noted in paragraph 8 above, the child
benefit legislation recognises a very wide range of categories of person as
responsible for a child.
35. Among the results are the
following. It is very common, and will I think be the case in the vast majority
of cases, that more than one person satisfies the tests of responsibility for a
child. The priority rules will settle most of those cases straightforwardly by
the preference for the woman in the case of parents living together. Where the
parents separate and a child clearly lives and is maintained preponderantly by
one parent, no doubt the Secretary of State's discretion under paragraph 5 of
Schedule 10 would be exercised to give entitlement to that parent (see paragraph
24 of Mr Sprawson's witness statement). However, such a decision does not as
such entail a decision that the other parent is not responsible for the child.
It is a decision on entitlement. When a child lives and is maintained roughly
equally with both parents, the exercise of the Secretary of State's discretion
is much more difficult, but Mr Sprawson's description of the process in the case
for which his witness statement was prepared is instructive (paragraph 7). The
mother was entitled to child benefit when the father made a claim in respect of
a child whose care was shared equally. They could not agree on priority. The
mother automatically remained entitled for the three weeks after the father's
claim, and it was decided that she should remain entitled after the expiry of
the three weeks:
"The basis for the latter decision
was that, since the care of [the child] appeared to be shared equally, the
[father] has failed to demonstrate that he had the greater balance of care for
[the child]. Accordingly, the status quo would not be disturbed."
The claimant here would no doubt
say that that shows clearly the route by which the discrimination against men
reaches into income- based JSA and income support. But the present point is that
the making of such a decision can hardly be regarded as an identification of one
person who is more responsible for a child than other or of a primary carer. It
is merely a decision on entitlement. Moreover, it is made in a climate where
there is a moral sense that child benefit should be spent on the children (see
the summary of research findings in paragraph 18 of Mr Sprawson's witness
statement). There could be a legitimate expectation (maybe unfulfilled in cases
of intransigent conflict) that some resources might be transferred from the
parent in receipt of child benefit to the other parent in cases of equally
shared care.
36. A further result of the
structure of the child benefit system is shown in the circumstances of the
present case, as they were prior to 25 November 1998. The priority rules in
Schedule 10 to the Social Security Contributions and Benefits Act 1992 only come
into play when there are competing claims for child benefit. If only one person
claims child benefit, and comes within the wide and loose rules for
responsibility, it does not matter that some other person takes a far bigger
role in the care of the child in question. But since regulation 77 of the JSA
Regulations makes the test of responsibility the receipt of child
benefit, the other person, with the primary responsibility in fact, could not
qualify for a personal allowance for the child or for the family premium. The
evidence here on the sharing of responsibility in fact is not nearly so clear-
cut as in my example. However, in the claimant's case here, for the period
during which he had not claimed child benefit for his daughters, he was debarred
from the personal allowances for them and the family premium although there had
been no decision for child benefit purposes relating to the comparative claims
of him and his wife.
37. I conclude that those factors
tend to undermine any arguments for the Secretary of State based on the
consistency of decisions between benefits. Taking into account the nature and
structure of income- based JSA as described above, I consider that the test for
responsibility for a child in regulation 77(1) of the JSA Regulations, in terms
of receipt of child benefit, is not a suitable or necessary means of
achieving the social policy aim put forward by the Secretary of State. The test
does not adequately identify the person who is responsible for the child or
young person in question, or even the person who bears the greater proportion of
the responsibility.
38. In addition, I take into
account the possibility of achieving the social policy aim by other means (see
paragraph 72 of the ECJ's judgment in Seymour-Smith). It has already been mentioned that before October 1993 the
income support test had been in terms of primary responsibility for a child.
There is Court of Appeal authority (Whelan v Chief Adjudication Officer,
21 October 1994) that that was to be judged on a week by week basis. Only if the
child spent equal amounts of time in the competing households or if there was
real doubt about who was primarily responsible in a particular week was the
child to be treated as the responsibility of the person receiving child benefit
in respect of the child in question. Regulation 15 of the Income Support
(General) Regulations 1987 was amended in 1993 to the form which was in
substance adopted in regulation 77 of the JSA Regulations. Although there is
evidence of problems in decision- making in income support on the old rule (see
paragraph 10 of Mr Binns' witness statement) I discount the suggestion there
that a situation where a person not in receipt of child benefit was treated as
responsible for a child in itself indicated a problem. The difference between
the nature of child benefit (as described above) and the nature of income
support and income- based JSA as subsistence benefits seeking to meet current
needs on a week by week basis means that there is no necessary inconsistency in
such a result. It can also be argued that a test of primary responsibility would
operate perfectly satisfactorily in the vast majority of cases, where the
parents of a child were living together or, where they were separated, the
primary responsibility plainly resided in one parent rather than the other.
39. Further, I note (although
this was not discussed at the oral hearing) that the legislation on other
income- related benefits does not adopt receipt of child benefit as an
exhaustive test of responsibility for a child. For working families' tax credit,
a child's membership of the claimant's family is an essential part of the
conditions of entitlement and the number of children affects the amount of the
credit payable. "Family" is defined in section 137(1) of the Social Security
Contributions and Benefits Act 1992 in terms of responsibility. Regulation 7(1)
of the Family Credit (General) Regulations 1987 makes the primary test that a
person is to be treated as responsible for a child or young person who is
normally living with that person. Only where a child or young person spends
equal amounts of time in different households or there is a question as to which
household the child is living in, is the child to be treated as normally living
with the person receiving child benefit (regulation 7(2)). In decision
CFC/1537/1995 Mr Commissioner Rowland held that regulation 7(2) only applies in
cases of equal sharing over a period or of real doubt. It is not brought into
play by the mere existence of a factual dispute. The regulation has been in that
form for family credit since it came into force in April 1988 and for the
replacement benefit, working families' tax credit, since 5 October 1999. It was
not been amended in the adaptation of the Regulations to the new
benefit.
40. In housing
benefit and in council tax benefit, there is a structure of premiums and
personal allowances which is essentially the same as in income support and
income- based JSA. Regulation 14 of the Housing Benefit (General) Regulations
1987 is in the same terms as regulation 7 of the Family Credit (General)
Regulations and has been since it came into force in April 1988. Regulation 6 of
the Council Tax Benefit (General) Regulations 1992 is also in the same terms as
regulation 7 of the Family Credit (General) Regulations and has been since the
Regulations came into force on 1 April 1993.
41. As I have accepted in
paragraph 25 above, the fact that a social policy aim could have been achieved
by other means than the measure which is challenged under Directive 79/7 does
not in itself mean that it cannot be objectively justified. However, it seems to
me to be a weighty factor against justification that in the legislation for
three other income- related benefits a different test for determining who is
responsible for a child has been adopted and maintained. That different test
does not involve an automatic and exhaustive link to receipt of child benefit as
the test, and by virtue of the interpretation set out in Commissioner's decision
CFC/1537/1995 does not achieve that result indirectly. It leaves open the
possibility, especially in circumstances where only one person has claimed child
benefit, of a different person being found on the facts to be responsible for
the child in question. The application of the "normally living with" test would
be expected to give rise to all the problems and difficulties mentioned on
behalf of the Secretary of State in relation to income- based JSA if there were
not the automatic and exhaustive link to receipt of child benefit. However, the
Secretary of State has been content to leave the "normally living with" test in
place for family credit, working families' tax credit, housing benefit and
council tax benefit.
42. When I set all those factors
against the discrimination on the ground of sex admitted to exist in regulation
77 of the JSA Regulations, I am quite unable to find that the Secretary of State
has shown that the discrimination is objectively justified by any of the
arguments put forward. That is so even adopting whatever interpretation of the
Community law test is most generous to the Secretary of
State.
43. There is a difficult issue as
to how much of regulation 77 of the JSA Regulations is affected by that
conclusion. That is one of the issues on which I required further written
submissions after the oral hearing. There is no doubt that the rule in
regulation 77(1) (and the consequential provision in regulation 77(2)) is
affected. So also is the rule in regulation 77(3)(b). However, the first crucial
issue is whether the rule in regulation 77(5), that a child or young person is
to be treated as the responsibility of only one person in any benefit week, is
affected. In essence, Mr Drabble's submission was that that rule was part and
parcel of the discriminatory structure of regulation 77 and fell along with
regulation 77(1). The submission on behalf of the Secretary of State, in
particular in the further written submission dated 25 July 2002 (from Mr
Whitham), was that once the discriminatory link to child benefit in regulation
77(1) was removed, regulation 77(5) stood in its own right and was either not
discriminatory or was justified as preventing a double payment for the same
needs. There was also a suggestion that there would be an "administrative
nightmare" if income- based JSA could be shared on a part- week basis in all
cases where children lived in different households for a part of a
week.
44. I reject Mr Drabble's
submission on this point. The evidence of discrimination on the ground of sex
put forward on behalf of the claimant did not really bite on this issue.
Although in Ms Holtermann's paper she mentioned the rule in regulation 77(5) as
part of her description of the legislative structure, she was concerned with a
situation in which the claimant was unable to qualify for the children's
personal allowances or for the family premium even for benefit week in which his
daughters lived with him for complete weeks, because his wife was in receipt of
child benefit. The discriminatory effect of the link to receipt of child benefit
has been accepted. I do not see why I should not look at what is left in the
regulation after that rule is removed.
45. There is really no
statistical evidence, but I am not going to impose yet further delay by trying
to obtain any. I think that I can look at matters generally. In so far as the
effect of regulation 77(5) is to prevent two different people from being treated
as responsible for a child for the same benefit period (whether that is a week
or a day), there is a link to the discriminatory rule tying responsibility
exclusively to receipt of child benefit. However, it seems to me that that
effect is amply justified by the principle that the same need should not be met
twice by the same benefit. In so far as the effect of regulation 77(5) is that
responsibility for a child must (except in particular limited cases) be
attributed for the whole of each benefit week, in my judgment that effect has
not been shown to be discriminatory on the ground of sex. Once the
discriminatory link to child benefit is removed it seems to me that that rule is
neutral in its effect. If it was not, I would be inclined to say that it was
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 basis or only on a whole- week basis.
46. The second crucial issue
relates to regulation 77(3)(a), which in terms applies where no one is receiving
child benefit in respect of a child. It then provides that the person to be
treated as responsible for the child is the person with whom the child or young
person usually lives. In paragraph 14 of his further written submission dated 7
October 2002, Mr Drabble submitted that that rule was indirectly discriminatory
on the ground of sex as women would be more likely than men to be the majority
carer of a child, so that the adoption of the "usually lives with" rule would
"perpetuate the situation where the substantial, but minority, carers were left
with an income substantially below subsistence level". Assuming (without
statistical evidence) that that is so, in my judgment that rule would also be
objectively justified. It seems to me to be within the broad margin of
discretion described above for responsibility for a child to be determined by a
factual test in terms of the person with whom the child usually lives, which in
its nature requires consideration of the circumstances over time, rather than
within each week. If as a matter of fact more women than men will satisfy that
test, I consider that the discrimination is objectively
justified.
47. I therefore conclude that
regulation 77(3)(a) and (5) is not inconsistent with Article 4 of Directive 79/7
and can stand despite my ruling that regulation 77(1),(2) and (3)(b) is
inconsistent with the Directive.
48. There remains an
exceptionally difficult question of law on the effect on the rule to be applied
to the claimant of my conclusion that regulation 77(1), (2) and (3)(b) of the
JSA Regulations is inconsistent with Directive 79/7. In many ways it is the most
difficult of the questions which I have had to decide in this
case.
49. Mr Drabble naturally
initially referred to the basic principle of Community law that an individual
who is adversely affected in such circumstances is entitled as against the state
to have any inconsistent provision disapplied. He also cited the principle set
out in paragraph 36 of the ECJ's judgment in Johnson v Chief Adjudication
Officer (Case C31/90) [1991] ECR 1- 3723 (which has been repeated in
substance in many other cases):
"In the absence of appropriate
measures for implementing Article 4 of Directive 79/7/EEC, women placed at a
disadvantage by the maintenance of the discrimination are entitled to be treated
in the same manner and to have the same rules applied to them as men who are in
the same situation, since, where the Directive has not been implemented
correctly, those rules remain the only valid point of reference."
Mr Drabble submitted that, since
a woman in the claimant's circumstances would qualify for the children's
personal allowances and for the family premium, the claimant must also be found
to qualify.
50. I had doubts about the
mechanism by which that result could come about and therefore, as the issue had
not been extensively discussed at the oral hearing, directed further written
submissions. Mr Whitham's submission of 25 July 2002 on behalf of the Secretary
of State argued that a finding that regulation 77(1) was unlawfully
discriminatory would mean that the test of receipt of child benefit could not be
applied to male or female claimants. It was said that if that test was
maintained for female claimants there would be inequality of treatment. Mr
Drabble's submission of 7 October 2002 argued as follows in paragraphs 10 to 13,
having stressed the principle of direct effect of Directive 79/7 and the normal
remedy of "rounding up" to the rules applied to the advantaged
group:
"10.
Applying that approach here, the provisions that produce the discrimination are
as follows:
(i) The
requirement that an individual be responsible for a child. This
requirement
is
applied to both sexes and is neutral.
(ii)
The requirement that the individual be in receipt of child benefit in reg
77(1).
This is
the impugned provision. It is the normal route for entitlement in the case of
the female comparator.
(iii)
The provision in reg 77(3)(a). This is an alternative to 77(1); and cannot be
in
play if the condition created by
77(1) is satisfied.
11. On
the basis of these provisions, it will be seen that entitlement to child benefit
works as a 'passport' to the right to dependants' additions. The female
comparator who is in receipt of child benefit qualifies on that basis alone and
never has to satisfy, in any given week or at all, the requirement of 77(3)(a).
To apply that condition to the male comparator would be to perpetuate the
discrimination. The only way to remove the discrimination is to 'disapply' bath
77(1) and 77(3); or, more accurately, to recognise that 77(3) never has a role,
even as a matter of purely domestic law, in a situation where child benefit is
in payment. This is not a case of attempting to sever, in a way which would be
appropriate in a domestic ultra vires case, the different parts of regulation
77. Instead, the machinery must be operated so as to place the man in as
advantageous a position as the woman.
12.
From this perspective, it will be seen that regulation 77(5) must also be
disapplied. Given that the female comparator must continue to qualify on the
basis of her domestic entitlement, equality cannot be achieved
otherwise.
13. Obviously, it would be open to the UK government to
legislate so as to deal with shared Care cases in a way which is not
discriminatory. Until it does, however, [the claimant's] directly effective
right not to have the discriminatory provision in regulation 77(1) applied
against him must prevail."
Mr Drabble is there submitting
that both the claimant and his wife should be found to be responsible for his
daughters during the weeks in which he had factual responsibility for
them.
51. Neither Mr Whitham nor Mr
Drabble cited any ECJ or domestic decisions directly supporting their respective
solutions. Mr Drabble did refer to pages 290 to 297 of Ellis, EC Sex Equality
Law (2nd ed, 1998). However, he did not take account of the mention on page 297
of that book of the Opinion of Advocate General Van Gerven in Jackson and
Creswell v Chief Adjudication Officer (Cases 63/91 and 64/91) [1992] I-
4737, where the conundrum which arises in cases of indirect discrimination is
clearly stated. What was under challenge there was the absence in the
supplementary benefit and income support schemes of any provision to allow
childminding expenses to be deducted from income to be taken into account in
calculating benefit. That was said to be indirectly discriminatory against lone
parents and therefore women. The Advocate General was required to give guidance
on how the appellants' rights could be corrected if discrimination were found
and the relevant directives (79/7 and 76/207) were applicable. In the event, the
ECJ found that supplementary benefit and income support fell outside the
material scope of both directives, so that it did not have to deal with this
question.
52. The Advocate General said
this in paragraph 29 of his Opinion (omitting footnotes):
"The Court has consistently held
that the national court may not apply the provision which is contrary to
Community law. Yet the problem in the situation in question is that the frame of
reference which the Court of Justice offers the national court in equal
treatment cases with regard to remedies for individuals does not provide a
solution here. In the event that discrimination is established, the Court
requires the national court invariably to apply the same rules to the members of
the group placed at a disadvantage, be they men or women, as are applied to
members of the other group. That approach affords no comfort to the appellants
in the main proceedings: even in the case of lone fathers, childminding expenses
are not deductible from income from vocational training (supplementary
allowance) or from income from work (income support)."
The Advocate General then said
that the principle of construing national law consistently with a directive
would not seem to help with a directive which has direct effect or where the
national rule is unambiguously clear. He went on:
"Consequently, as Community law
stands at present, the most realistic solution seems to me for the national
court to decide, where appropriate, at the request of the appellants in the main
proceedings that, having regard to the criteria developed in this connection,
the British authorities have not complied with their obligations under
Directives 76/207 and 79/7, and to declare them liable to pay compensation to Ms
Jackson and Ms Cresswell on the basis of the rules specified in the Court's
case- law, in particular in the recent judgment in Francovich and
Bonifaci."
53. Advocate General Van Gerven
was one of the most distinguished and learned judges to
54. I would be very reluctant to
conclude that, in the absence of a valid reference point under which the
claimant can sensibly have the rule in regulation 77(1) of the JSA Regulations
applied to him as it would be applied to a woman, the only remedy is a claim for
compensation. I have no power to award such compensation and a separate claim
would have to be made. Instead, I rely on the principle stated in paragraph 33
of the ECJ's judgment in Van Gemert- v Bestuur van de Nieuwe Industriele
Bedriifsvereniging (Case C- 337/91) [1993] ECR I5435:
"33. Although Article 4(1) of
Directive 79/7 has the recognized effect of excluding the application of an
incompatible national provision, it does not restrict the power of the national
courts to apply such procedures of domestic law as will safeguard the individual
rights conferred by Community law."
Therefore, I consider what ruling
I can properly make in relation to regulation 77 of the JSA Regulations which
will safeguard the claimant's rights under Article 4 of Directive
79/7.
55. Mr Drabble's case for the
claimant is powerfully argued. I accept that I cannot simply say that regulation
77(1) is not to be applied to the claimant as a member of the disadvantaged
class (men), leaving him to satisfy regulation 77(3)(a) if he can, while women
can still have regulation 77(1) applied to them. The discrimination would not be
removed and the claimant's Community rights would not have been safeguarded.
However, I do not accept Mr Drabble's solution. That seems to me to do too much
violence to the terms of regulation 77 as a whole, extending into the
disapplication of parts of the regulation which I have concluded do not involve
unjustified discrimination on the grounds of sex and which were not directly
impugned in the case made for the claimant. Rather, I have concluded that the
process of disapplication must be extended in order to safeguard the claimant's
Community rights while interfering with the integrity of the terms of regulation
77 to the most limited extent necessary. In this particular case of indirect
discrimination, the ruling which I make is that regulation 77(1) is not to be
applied to either men or women in cases where the individuals concerned fall
within the personal scope of Directive 79/7.
56. I find support for that
ruling in the outcome of the recent decisions of a Tribunal of Commissioners on
cases concerning regulation 51(2)(c) of the JSA Regulations and its application
to part- time staff employed in schools and colleges. In its decision on one
group of appeals (CJSA/5732/1999, CJSA/5836/1999 and CJSA/426/1999), the
Tribunal found that regulation 51(2)(c) (which set out a special rule for
calculating the hours of work for people who worked at educational establishment
and whose hours fluctuated over an annual cycle) was inconsistent with Article
4(l) of Directive 79/7 as it discriminated against women and was not objectively
justified. In consequence, it ruled that regulation 51(2)(c) was of no effect
and used the language of "striking down" (paragraphs 21, 29 and 31). I have some
personal reservations about the use of that language and the Tribunal did not
expressly address the conundrum which troubles me, but its ruling was plainly
had the effect that regulation 51(2)(c) was not to be applied to either women or
men. That is shown by its decision in the second group of appeals
(CJSA/2079/1998, CJSA/4014/1998 and CJSA/426/1999), which concerned the
application in particular cases of the rest of regulation 51, regulation
51(2)(c) having been taken out of consideration. Two of those appeals concerned
female claimants, but one (CJSA/426/1999) concerned a male claimant. The
Tribunal took no account of regulation 51(2)(c) in his case just as in the
others, without considering any additional discussion
necessary.
57. Whether or not those
decisions of the Tribunal of Commissioners stand for a principle of law which is
formally binding on me, in the absence of express discussion of the point now
before, they must powerfully persuasive towards the result which I have reached
by independent reasoning.
58. I add briefly that I have
considered the decision of the Court of Appeal in Gingi v S Secretary of Sate
for Work and Pensions, to be reported as R(IS) 5/02, where an "overspill"
effect of Community law was rejected. It was held that if a provision of English
law was to be disapplied in cases falling within the ambit of Community law that
did not mean that the provision ceased to have any legal effect at all and could
not be applied in cases outside the ambit of Community law. That incidentally is
one reason why I do not like the language of "striking down" and have added the
condition at the very end of paragraph 55 above. However, there is no
"overspill" where what is being worked out is the extent of the disapplication
of a provision of English law as between the advantaged and disadvantaged groups
identified under a directly effective directive.
59. In summary, my decision on
the law is that regulation 77(1), (2) and (3)(b) of the JSA Regulations is not
to be applied to any persons within the personal scope of Directive 79/7, with
the result that the question of whether the claimant is to be treated as
responsible for Heidi and Jade is to be determined by applying regulation
77(3)(a) and (5). That involves applying the test of with whom the child usually
lives. I hold, by analogy with what was held in decision CFC/1537/1995 about the
test of with whom a child normally lives, that the question is not to be judged
by looking at the position within each benefit week, but by looking at what is
usual by reference to a longer period. Since I have held that, by virtue of
regulation 77(5), only one person may be treated as responsible for a child or
young person in each benefit week, the test in regulation 77(3)(a) must be
applied so as to resolve any conflict between those competing to be treated as
responsible.
60. As noted in paragraph 3
above, the evidence before the appeal tribunal on the precise periods for which
Heidi and Jade lived with the claimant was not all that clear. The court order
of 6 October 1997 was not clear on the point on changeover days at which the
daughters went from one parent to the other.
61. In relation to Jade, the
younger daughter, it seems that on any basis, she spent the majority of her time
with the claimant's wife. I conclude that for the period down to 8 January 1998,
Jade did not usually live with the claimant.
62. In relation to Heidi, it
looks, on the assumption (which appears not to be disputed) that the terms of
the court order were followed, as though she spent more nights with the
claimant's wife than with the claimant. Heidi was to reside with her mother from
Thursday to Monday in school term times, so probably spent four nights a week
with her. However, Heidi was also to reside with her father from Monday to
Thursday in those weeks. That covers four days and depending on the mechanics of
the changeover might represent more than half of the total hours in the week.
The claimant's own calculation on his "shared residence claim" would seem to
point to Heidi living with him for less than half the days in the year, but it
is not clear what period that calculation covered. In addition, there was a
significant concession by Mr Whitham on behalf of the Secretary of State in the
submission of 25 July 2002. He stated that the evidence from Heidi was that at
the time that the claimant made his child benefit claim in November 1998 she
usually lived with him for most of the week. Mr Whitham was evidently prepared
to accept that that situation had been in place from the beginning of the JSA
claim, as he submitted that (if the Secretary of State's case on justification
were rejected) the claimant should be awarded the family premium and a personal
allowance for Heidi from the beginning of his entitlement income- based
JSA.
63. When Mr Drabble's submission
of 7 October 2002 was sent in by the claimant's solicitors they said that the
claimant wished to correct some inaccuracies in paragraphs 14 to 17 of Mr
Whitham's submission and that a further letter would follow shortly. However,
after a reminder was sent by the Commissioners' office the solicitors replied on
25 November 2002 that they did not wish to raise any further points of fact at
the present stage. Thus I have no further evidence beyond what I have already
described. The claimant's reservations may have related to some of what Mr
Whitham said about the more recent circumstances.
64. In those circumstances I
accept and adopt Mr Whitham's submission and conclude that as at 16 December
1997 and down to 7 January 1998, Heidi usually lived with the claimant. Thus he
is to be treated as responsible for her under regulation 77 of the JSA
Regulations and his entitlement to income- based JSA should be calculated with
the inclusion in his applicable amount of the family premium and a personal
allowance for Heidi. In accordance with the agreement between the parties
recorded in paragraph 16 above, the claimant's entitlement to income- based JSA
for the remainder of the period down to the present is to be calculated by the
Secretary of State on the basis of the principles of law and findings of fact I
have set out and taking account of any subsequent changes of the factual
circumstances as agreed with the claimant and his representatives. If agreement
cannot be reached on what changes of factual circumstances have occurred or on
what the consequences are on the claimant's entitlement to income based JSA, the
appeal is to be returned to me (or, if necessary, to another Commissioner) for
further decision.
65. My decision to that effect is
set out in paragraph 1 above.
(Signed) J Mesher
Commissioner
Date: 13 January 2003