Humphreys v Revenue and Customs Commissioners

JurisdictionEngland & Wales
CourtSupreme Court
JudgeLADY HALE,Lord Reed,Lord Clarke,Lord Wilson,Lord Walker
Judgment Date16 May 2012
Neutral Citation[2012] UKSC 18

[2012] UKSC 18

THE SUPREME COURT

Easter Term

On appeal from: [2010] EWCA Civ 56

before

Lord Walker

Lady Hale

Lord Clarke

Lord Wilson

Lord Reed

Humphreys (FC)
(Appellant)
and
The Commissioners for Her Majesty's Revenue and Customs
(Respondent)

Appellant

Richard Drabble QC

Sasha Blackmore

(Instructed by Ford Simey LLP)

Respondent

Jason Coppel

Katherine Eddy

(Instructed by HMRC Solicitors Office)

Heard on 14 and 15 March 2012

LADY HALE (with whom Lord Walker, Lord Clarke, Lord Wilson and Lord Reed agree)

1

The issue is simply stated. Child tax credit (CTC) is payable to one person only in respect of each child, even where the care of the child is shared between separated parents. It is (now) accepted that entitlement to CTC falls within the ambit of article 1 of the First Protocol to the European Convention on Human Rights (Protection of property): see R (RJM) v Secretary of State for Work and Pensions [2008] UKHL 63, [2009] 1 AC 311. It is (now) accepted that the rule discriminates indirectly against fathers, because experience shows that they are far more likely than mothers to be looking after the child for the smaller number of days in the week. The question, therefore, is whether this discrimination is justified or whether the refusal of CTC to a father who looks after his children for three days a week is incompatible with his convention rights. If it is incompatible there is a further question as to how this incompatibility can be remedied.

The facts
2

The appellant father has two children, a son born on 7 June 1998, and a daughter born on 6 May 1999. We are concerned with the period from 12 January 2004 until December 2005. During that time, they lived with their mother but had very extensive contact with their father, who looked after them for at least three days a week. A court order dated 8 November 2004 sets out the precise arrangements determined after a contested hearing between the parents. In effect, this provided for the father to have the children for three full weekends in every four and on Thursdays in the fourth week and for half of all school holidays. In other cases, such a level of shared care might well be reflected in a shared residence order rather than in an order for residence and contact. But the labels attached to the arrangements are immaterial for the purpose of the present issue.

3

Throughout the relevant period, the father was in receipt of income support, contributory incapacity benefit and non-contributory disability living allowance. Income support was, of course, a means-tested benefit equivalent to income-based jobseekers' allowance and set at the officially prescribed subsistence level. Following the introduction of CTC, the children's needs were not taken into account in assessing the father's entitlement to income support. He claimed CTC in respect of both children but his claim was refused on the ground that the mother had the main responsibility for them. He challenged this decision on the ground that the rule restricting entitlement to one household discriminated in favour of women. He succeeded in the Appeal Tribunal (Ref: 201/07/453 and 08/337, 16 June 2008) but failed before Upper Tribunal Judge Jacobs in the Upper Tribunal ( CTC/2608/2008, 4 February 2009) and before the Court of Appeal where the judgment of the court was delivered by Richards LJ: [2010] EWCA Civ 56; [2010] 1 FCR 630.

Child Tax Credit
4

CTC and Working Tax Credit were introduced by the Tax Credits Act 2002 ( TCA). CTC replaced the separate systems for taking account of children's needs in the tax and benefits systems. Previously, people in work (or otherwise liable to pay income tax) might claim the children's tax credit to set off against their income. This was administered by the tax authorities. People out of work (or otherwise claiming means-tested benefits) might claim additions to their income support or income-based jobseeker's allowance to meet their children's needs. This was administered by the benefits authorities. Under the new system, a single tax credit is payable in respect of each child, irrespective of whether the claimant is in or out of work, and is administered by Her Majesty's Revenue and Customs (HMRC). CTC is like income support and jobseeker's allowance, in that it is a benefit rather than a disregard and it is means-tested, so that the higher one's income the less the benefit, until eventually it tapers out altogether. But in several other respects, including the "light touch and non-stigmatising" way of measuring income, calculated for the year ahead based on the previous year's income, with a balancing exercise at the end of the year, it is like a tax allowance. As the Government explained, in The Child and Working Tax Credits: The Modernisation of Britain's Tax and Benefits System, April 2002, para 2.3:

"The Child Tax Credit will create a single, seamless system of support for families with children, payable irrespective of the work status of the adults in the household. This means that the Child Tax Credit will form a stable and secure income bridge as families move off welfare and into work. It will also provide a common framework of assessment, so that all families are part of the same inclusive system and poorer families do not feel stigmatised."

5

CTC is, of course, separate from and additional to child benefit, which (at that time) was a universal flat rate benefit available to everyone with children, and also administered by HMRC. Like CTC, child benefit cannot be split between two claimants (Social Security Contributions and Benefits Act 1992, section 144). This single payment rule has been challenged but so far unsuccessfully: see R (Barber) v Secretary of State for Work and Pensions [2002] EWHC 1915 (Admin); [2002] 2 FLR 1181. Where separated parents share the care of their children, they may elect who is to receive the benefit. Failing that, HMRC has a discretion to decide who should have it, without any statutory test (Sched 10, para 5 of the 1992 Act). They may, therefore, allocate the benefit for one child to one household and for another child to the other: see R (Ford) v Board of Inland Revenue [2005] EWHC 1109 (Admin).

6

Entitlement to CTC depends upon making a claim: TCA, section 3(1). A claim may be made either jointly by a couple or by a single person who is not entitled to make a joint claim: section 3(3). Opposite or same sex partners who are married or in a civil partnership or living together as if they were married or civil partners are a "couple" unless they are separated by court order or in circumstances in which the separation is likely to be permanent (section 3(5A) as substituted by paragraph 144(3) of Part 14 of Schedule 24 to the Civil Partnership Act 2004). Joint claims are assessed on the couple's aggregate income (section 7(4)(a)). Entitlement to CTC depends upon the claimant or either or both claimants in a couple being responsible for one or more children (section 8(1)). The circumstances in which a person is or is not responsible for a child may be prescribed by regulations (section 8(2)). If more than one person may be entitled to CTC in respect of the same child, the regulations may provide for the amount of the CTC for any of them to be less than it would be if only one claimant were entitled (section 9(7)). In other words, the regulations could provide for the CTC to be shared, for example between separated parents, but in fact they do not.

7

Regulation 3(1) of the Child Tax Credit Regulations 2002 (SI 2002/2007), (as amended by article 4(3) of the Civil Partnership Act 2004 (Tax Credits, etc) (Consequential Amendments) Order 2005 (SI 2005/2919)), provides, so far as relevant:

"For the purposes of child tax credit the circumstances in which a person is or is not responsible for a child…shall be determined in accordance with the following Rules.

Rule 1

1.1 A person shall be treated as responsible for a child…who is normally living with him (the 'normally living with test').

1.2 This Rule is subject to Rules 2 to 4.

Rule 2

2.1 This Rule applies where—

  • (a) a child…normally lives with two or more persons in—

    • (i) different households, or

    • (ii) the same household, where those persons are not limited to members of a couple, or

    • (iii) a combination of (i) and (ii), and

  • (b) two or more of those persons make separate claims (that is, not a single joint claim made by a couple) for Child Tax Credit in respect of the child…

2.2 The child …. shall be treated as the responsibility of—

  • (a) only one of those persons making such claims, and

  • (b) whichever of them has (comparing between them) the main responsibility for him (the 'main responsibility test'),

subject to Rules 3 and 4.

Rule 3

3.1 The persons mentioned in Rule 2.2 (other than the child…) may jointly elect as to which of them satisfies the main responsibility test for the child…, and in default of agreement the Board may determine that question on the information available to them at the time of their determination."

8

As with child benefit, therefore, the parents are free to elect between themselves who is to have the CTC. Unlike child benefit, however, HMRC is constrained by the "main responsibility test" if the parents fail to agree.

9

Although the Act allows for sharing, the decision not to provide for it in the regulations was deliberate. The Paymaster General, Mrs Dawn Primarolo, explained to Parliament (Hansard House of Commons Debates, 26 June 2002, vol 387, col 926-927):

"Together [the Act and the regulations] create a system that ensures that the family with main responsibility for a child will be provided with a suitable level of support, depending on their needs. That is similar to many current systems of support for children, and we believe that—currently—it provides the most suitable means to ensure that we can focus support on raising children out of...

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