Hockenjos v Secretary of State for Work and Pensions [2004] EWCA Civ 1749 CJSA 4890 1998
| Jurisdiction | UK Non-devolved |
| Judge | Judge J. Mesher |
| Judgment Date | 21 December 2004 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Subject Matter | European Union law |
| Docket Number | CJSA 4890 1998 |
| Appellant | Hockenjos v Secretary of State for Work and Pensions [2004] EWCA Civ 1749 |
R(JSA) 2/05
(Hockenjos v Secretary of State for Work and Pensions [2004] EWCA Civ 1749)
|
CA (Ward, Arden and Scott Baker LJJ) 21.12.04 |
CJSA/4890/1998 |
Discrimination on ground of sex – Council Directive 79/7/EEC – parents with shared care of child – indirect discrimination by linking of JSA child additions to receipt of child benefit – whether objectively justified
The claimant was separated from his wife. At the time of his claim for jobseeker's allowance (JSA) his two children resided with him for roughly half the week, but the mother was in receipt of child benefit in respect of both children. The adjudication officer decided that the claimant was entitled to income-based JSA, but that the amount payable should not include any additional amount in respect of the children, because he was not in receipt of child benefit and was therefore not to be treated as responsible for them by the definition in regulation 77(1) of the Jobseeker’s Allowance Regulations 1996 (the JSA Regulations). The claimant appealed to an appeal tribunal, which upheld the adjudication officer’s decision. The claimant appealed to the Commissioner and the Court of Appeal, arguing that the statutory provisions linking increases in respect of children to receipt of child benefit favoured mothers over fathers and therefore contravened the anti-discrimination conditions in Directive 79/7/EEC. The Court of Appeal found that income-based JSA was within the scope of the Directive (see R(JSA) 1/05) but remitted the case to the Commissioner to consider the issue of discrimination
The Commissioner held that regulation 77 was indirectly discriminatory and not objectively justifiable in so far as (in regulation 77) it linked entitlement to increases in respect of children to receipt of child benefit, but held that the regulation was not indirectly discriminatory and/or was objectively justifiable in so far as it provided (in regulation 77(5)) that only one person could be eligible for the increases in respect of any child in any week and (in regulation 77(3)(a)) that, in the absence of a claim for child benefit, the person entitled to the premium should be the person with whom the child usually lives. The claimant again appealed to the Court of Appeal and the Secretary of State cross-appealed, arguing that the Commissioner’s decision should be upheld on additional grounds
Held, allowing the appeal and dismissing the cross-appeal, that:
- paragraphs (3)(a) and (5) of regulation 77 in the context of regulation 77 as a whole discriminate against men since they are inextricably linked to the discrimination against men in regulation 77(1) and prevent appropriate subsistence being paid to substantial minority carers (paragraphs 68 to 71, 100 and 152 to 155);
- in creating a scheme which forced parents to live substantially below subsistence level and failing to explore alternatives that might achieve his legitimate aim with the necessary balance of fairness and efficiency, the Secretary of State had not discharged the burden of establishing justification (R v Secretary of State for Employment ex parte Seymour-Smith (Case C-167/97) [1999] ECR I-623 followed) (paragraphs 47, 63, 113, 168 and 171)
- the effect of the Directive was that the offending parts of regulation 77 could not be applied to the claimant or to others in his position, although they remained applicable where they did not operate in a discriminatory fashion (paragraph 77);
- the Apportionment Act 1870 did not apply to the case and the result of the disapplication of regulation 77 was that the claimant was entitled under section 35 of the Jobseekers Act 1995 to the full increase to his income-based JSA in respect of the children (paragraphs 92, 125 to 26, 178 and 195 to 200).
Note: the House of Lords refused the Secretary of State’s petition for permission to appeal.
DECISION OF THE COURT OF APPEAL
Mr Richard Drabble QC (instructed by Ford Simey) for the appellant.
Mr Nicholas Paines QC and Ms C Patry (instructed by Solicitor, Department for Work and Pensions) for the respondent.
Judgment (reserved)
LORD JUSTICE SCOTT BAKER:
Introduction
1. The State provides financial relief against unemployment. It is called jobseeker’s allowance (JSA). There are two kinds: income-based and contribution-based. This appeal is concerned with income-based JSA. There is a supplement where the recipient is responsible for a child or children but this is linked to receipt of child benefit. In shared care cases, of which this is one, the child benefit usually goes to the mother. Mr Hockenjos, the appellant, complains that the Jobseeker’s Allowance Regulations 1996 (SI 1996/207) (the JSA Regulations) violate the prohibition against direct or indirect discrimination on the basis of sex in relation to statutory schemes which provide protection against unemployment as laid down in Article 4 of EU Council Directive 79/7/EEC (the Directive). He seeks a remedy.
2. The appellant appeals against a decision of Mr Commissioner Mesher dated 13 January 2003. Permission to appeal was granted by the Commissioner because the case raises important issues of principle as to the treatment by the benefit system of shared care arrangements. Mummery LJ later gave the respondent permission to cross-appeal and argue that the Commissioner’s decision should be upheld on additional grounds.
3. The appellant is the father of two children, Heidi who was born on 23 October 1982 and Alisha who was born on 14 February 1990. He separated from his wife and a joint residence order was made by Judge Ryland on 6 October 1997 dividing their care between the two of them with the result that the children resided with each of them for different, but roughly equal, parts of each week. The relevant details of the order are as follows:
“1. The children Heidi Maria Hockenjos and Alisha Jade Ellen Hockenjos shall reside with the mother Caroline Hockenjos and the father Eugen Hockenjos.
2. The children shall reside with the mother at the following times:
During school term times
Heidi: Thursday – Monday
Alisha: Wednesday – Monday
3. The children shall reside with the father at the following times:
During school term times
Heidi: Monday – Thursday
Alisha: Monday – Wednesday
4. Every fourth week the days shall be changed so that Heidi resides with her father from Sunday at 11 am until Wednesday, and Alisha resides with her father from Sunday at 11am 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.”
4. It can be seen, therefore, that the provisions of the order went to some lengths to ensure that the care of the two children was shared broadly equally between the mother and the father. Such orders were almost unheard of twenty or more years ago but society has moved on and there is an increasing awareness of the father’s role in the care of children. There is in my view no longer on the face of it any reason, if there ever was, why fathers who are parties to such arrangements should be placed at a financial disadvantage by the social security legislation. Arrangements for the shared care of children, if they lead to harmony between separated parents, should be encouraged rather than discouraged.
5. On 16 December 1997 the appellant applied for JSA including an additional amount in respect of the children. The adjudication officer decided on 7 January 1998 that he was entitled to income-based JSA but that the amount payable should not include any additional amount in respect of the children. The reason for this was that he was not in receipt of child benefit, which was being paid to the mother, and was therefore not to be treated as responsible for them. The appellant has continued to be entitled to JSA ever since he made his claim on 16 December 1997.
6. He appealed unsuccessfully to a social security tribunal on 11 August 1998 and again to Mr Commissioner Goodman who dismissed his appeal on 2 May 2000. There was a further appeal to the Court of Appeal. It held on 2 May 2001 that income-based JSA was directly and effectively linked to the protection provided against the risk of unemployment and that therefore it fell within the Directive. The question whether the disputed provisions of the JSA Regulations were indirectly discriminatory on the grounds of sex contrary to the Directive was remitted to a Social Security Commissioner.
7. The matter was in due course heard by Mr Commissioner Mesher. Before him it was accepted by the Secretary of State that the disputed provisions had a disparately adverse impact upon men. The Commissioner held, contrary to...
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