Jones v. Chief Adjudication Officer CG 35 1988
| Jurisdiction | UK Non-devolved |
| Judge | Mrs R. F. M. Heggs |
| Judgment Date | 31 July 1990 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Subject Matter | European Union law |
| Docket Number | CG 35 1988 |
| Appellant | Jones v. Chief Adjudication Officer |
R(G) 2/91
(Jones v. Chief Adjudication Officer)
Mrs. R. F. M. Heggs CG/35/1988
14.7.89
CA (Mustill, Nourse and Butler - Sloss LJJ)
31.7.90
Discrimination on grounds of sex - invalid care allowance overlapping with claimant’s husband increase of invalidity benefit - whether discrimination contrary to Council Directive 79/7 EEC
The claimant’s husband was in receipt of invalidity benefit including a dependency increase of the claimant. She worked part-time and her earnings were within the limit for such an increase. She then gave up work to look after her father. She claimed invalid care allowance. Under regulation 10 of the Overlapping Benefit Regulations the dependency increase fell to be adjusted, and arrears of invalid care allowance payable to her were reduced by the amount of the increase of invalidity benefit already paid to her husband. The Commissioner held that the application of the Overlapping Benefits Regulations gave rise to indirect discrimination on the grounds of sex but that this was objectively justifiable and not in breach of Article 4(1) of EEC Directive 79/7
On 7 March 1991, the Court of Appeal dismissed an appeal by the claimant and held that
the Overlapping Benefit Regulations had the effect of making the increase of the husband’s benefit on account of the claimant’s dependency not payable because the claimant was receiving invalid care allowance. That was not discriminatory as regards the dependent claimant because it was the husband and not the claimant who lost the benefit
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. My decision is that the decision of the social security appeal tribunal given on 1 March 1988 is erroneous in point of law and accordingly I set it aside. However, as I consider it expedient to give the decision the tribunal should have given, I further decide that arrears of invalid care allowance of £2,483.83 due to the claimant for the inclusive period from 1 April 1985 to 7 May 1987 are reduced by £2,449.94 which amount has already been paid to the claimant’s husband for the claimant as a dependant for that period because that amount is to be treated as properly paid to the claimant’s husband.
2. This is an appeal by the adjudication officer, brought with the leave of the tribunal chairman, against the decision of the social security appeal tribunal given on 1 March 1988, reversing the adjudication officer’s decision issued on 30 April 1987. At the oral hearing held before me the adjudication officer was represented by Mr. M. Kent of Counsel, instructed by the Solicitor’s Office of the Departments of Health and Social Security. The claimant did not attend but she was represented by Mr. R. Drabble of Counsel, instructed by the Warrington Community Law Centre. I am grateful to them both for their helpful and detailed submissions.
3. The facts are not in dispute. The claimant’s husband was in receipt of invalidity benefit, which included a dependency increase for the claimant. She worked part‑time, the amount of her weekly earnings being within the limit prescribed by regulation 8(2) of the Social Security Benefit (Dependency) Regulations 1977. However, she had to give up work in order to care for her father, who was in receipt of attendance allowance. On 10 July 1985 she claimed invalid care allowance stating that she wished the claim to be considered from 1 April 1985.
4. The adjudication officer accepted that the claimant satisfied the conditions for an award of invalid care allowance for the inclusive period from 1 April 1985 to 7 May 1987 but he applied regulation 10 of the Social Security (Overlapping Benefits) Regulations 1979 which provides that where a dependency benefit under the Social Security Act 1975 (invalidity benefit being such a benefit) is payable for the same period as a personal benefit as defined in the regulations (invalid care allowance being such a benefit) the dependency benefit shall be adjusted. Regulation 10(2)(a) provides that where the weekly rate of the personal benefit is equal to or exceeds the weekly rate of the dependency benefit, the dependency benefit shall not be paid. The weekly rate of invalid care allowance has at all times been equal to or exceeded the weekly rate of the dependency benefit. The adjudication officer also had regard to regulation 6 of the Social Security (General Benefit) Regulations 1982 (repealed as from 6 April 1987 by regulation 5 of the Social Security (Payments on Account, Overpayments and Recovery) Regulations 1987) which provides that benefit paid to one person in respect of another person, as a dependant of the first mentioned person, shall unless it is required to be repaid, be treated as properly paid for any period for which it is not in fact payable where under a subsequent decision that other person (i.e. the dependant) is entitled to a personal benefit for the same period in their own right, and any arrears of benefit payable for that period by virtue of the subsequent decision shall be reduced or withheld accordingly. As a result of the combined effect of regulation 10 of the Overlapping Benefits Regulations and regulation 6 of the General Benefit Regulations the adjudication officer deducted £2,449.94, being the amount of dependency benefit paid to the claimant’s husband for the inclusive period from 1 April 1985 to 7 May 1987 from £2,483.83, being the amount of invalid care allowance arrears due to the claimant for the said period, leaving a balance owing to her of £33.89. The claimant appealed to the tribunal.
5. In his written observations on the claimant’s appeal to the tribunal Mr. Drabble submitted:
“ … The offset claimed by the adjudication officer is a result of the combined effect of regulation 10 of the Social Security (Overlapping Benefits) Regulations 1979 (SI 1979 No. 597) and regulation 6 of the Social Security (General Benefit) Regulations 1982, and it is accepted on behalf of the claimant that these regulations, if read without reference to Council Directive 79/7 EEC (Equal Treatment in matters of Social Security) do provide for a complete offset. However, it is contended that once the effect of the Directive is taken into account, it becomes clear that to provide for a complete offset is to indirectly discriminate against women who were, before they began to care for the invalid in respect of whom they are entitled to invalid care allowance, part‑time workers earning wages which were disregarded when calculating the relevant dependants addition for invalidity benefit …”
6. The claimant and her solicitor attended the hearing of the appeal before the tribunal on 1 March 1988. In the event the tribunal allowed the appeal. After recording the relevant findings of fact, the reasons for decision read:
“The tribunal is satisfied that the benefits involved in this case comes within the scope of Article 3(1)(a) of the Directive. In arriving at their decision the tribunal had regard to Drake v. Chief Adjudication Officer.
It is not contended by the claimant’s representative that there is direct discrimination on grounds of sex but that there is indirect discrimination on the grounds of sex because the setting off of one benefit against the other is more unfavourable to women than to men and is not objectively justifiable. It is argued and it is accepted by the tribunal that as part‑time earnings are disregarded in calculating increase of invalidity benefit and because there are many more women who are in part‑time employment than men in deducting increase of invalidity benefit from invalid care allowance women are treated less favourably than men. In arriving at this conclusion the tribunal had regard to the opinion of Advocate General Mancini.
From the evidence presented both by [the claimant] and as shown in Parliamentary Questions and Answers letter showing part‑time employment rules and the extract from the employment Gazette March 1987 it is accepted that [the claimant] was a part‑time low paid worker, because she ceased work to look after her father and that more women are low paid part‑time workers and dependants than men.
The final question is whether even if the rule requires the offsetting of one benefit against another predominantly affects woman is it justifiable. The tribunal do not think that it is justifiable for the reason that if it had not been necessary for the claimant to give up her job to look after her father, she would have been allowed to retain her wages and the increase of invalidity benefit would still have been payable. Furthermore invalid care allowance was to assist the claimant to look after her father, whereas increase of invalidity benefit was to assist the husband to provide for his wife as a dependant. The two benefits...
To continue reading
Request your trial