Hockenjos v Secretary of State for Social Security (No 2)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SCOTT BAKER,Lady Justice Arden,Lord Justice Ward |
| Judgment Date | 21 December 2004 |
| Neutral Citation | [2004] EWCA Civ 1749 |
| Docket Number | Case No: C3/2003/0893 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 December 2004 |
[2004] EWCA Civ 1749
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SOCIAL SECURITY COMMISSIONER
(MR MESHER)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Ward
Lady Justice Arden and
Lord Justice Scott Baker
Case No: C3/2003/0893
Mr Richard Drabble Q.C (instructed by Ford Simey) for the Appellent
Mr Nicholas Paines Q.C and Ms C Patry (instructed by Solicitor, Department for Work and Pensions) for the Respondent
Introduction
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 ("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.
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 L.J later gave the respondent permission to cross appeal and argue that the commissioner's decision should be upheld on additional grounds.
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 the 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."
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.
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.
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.
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 the Secretary of State's submission, that regulation 77 of the JSA Regulations was not objectively justifiable in so far as it linked entitlement to child premium to receipt of child benefit but held, contrary to the appellant's submission, 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 premium in respect of any child in any week and (in regulation 77(3)) 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 commissioner decided that the appellant's claim should be determined in accordance with that ruling.
The appellant's argument was and is that he has been discriminated against contrary to Article 4 of the Directive because it is discriminatory to link entitlement to the additional amount of JSA to child benefit. Child benefit is a payment made to the person responsible for the child. It is not means tested and the way in which it operates in shared care cases is such that more women than men are entitled to receive it.
The Directive does not apply to child benefit as such because it is not paid to provide protection against any of the risks set out in Article 3. The issues in the present case arise because the child benefit rules are used as the vehicle for determining whether an applicant for JSA is entitled to an additional sum for dependent children.
The appellant 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 was reviewed to give him a personal allowance for Heidi and, presumably, also the family premium. That personal allowance appears to have continued to be paid until Heidi's exclusion from child benefit when she ceased full time secondary education.
Mr Commissioner Mesher decided that the appellant's entitlement to JSA from 16 December 1997 to 7 January 1998 was to be calculated with the inclusion of the family premium and of a personal allowance for Heidi, but not for Alisha, in his applicable amounts. This was on the basis that during that period the evidence was that Heidi usually lived with the appellant and therefore he was to be treated as responsible for her under Regulation 77 of the JSA Regulations. On the other hand Alisha usually lived with her mother and therefore not with the appellant.
The appellant's entitlement to JSA from 8 January 1998 onwards was to be calculated by the Secretary of State on the basis of the principles of law and findings of fact set out in the commissioner's decision, taking account of any changes in the factual circumstances as agreed with the appellant and his representatives. In default of agreement the matter was to be returned to him or another commissioner for a decision.
The basis of the appellant's claim is that he has been indirectly discriminated against on the ground of sex. The Secretary of State, who is the respondent to this appeal, accepts that there has been indirect discrimination but claims that it can be objectively justified. There has therefore been no violation of the Directive and accordingly the appellant is not entitled to any remedy.
A detailed statistical report by an economic consultant, Sally Holtermann, was put before the commissioner. This report showed that 92% of men who shared the care of their children for at least 104 nights a year could not obtain child additions to income-based JSA because they were not in receipt of child benefit and that 8% of women who similarly shared care could not obtain the additions for the same reason.
Albeit the Secretary of State had some doubts about the pool chosen for comparison, he conceded before the commissioner that there was:
"A statistical discrimination in favour of women in respect of the working of the rule of entitlement to child additions to income-based JSA. 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."
The case proceeded before the commissioner therefore on the basis of whether the Secretary of State could show objective justification for the discrimination. The commissioner's conclusion was that he was quite unable to find that the Secretary of State had shown that the discrimination was objectively justified by any of the...
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