M v Secretary of State for Work and Pensions; Langley v Bradford Metropolitan District Council and another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Kennedy,Lord Justice Sedley,Lord Justice Neuberger |
| Judgment Date | 19 October 2004 |
| Neutral Citation | [2004] EWCA Civ 1343 |
| Docket Number | Case No: C3/2003/2719 AND C3/2004/0029 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 October 2004 |
[2004] EWCA Civ 1343
Lord Justice Kennedy
Lord Justice Sedley and
Lord Justice Neuberger
Case No: C3/2003/2719 AND C3/2004/0029
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SOCIAL SECURITY COMMISSION
Royal Courts of Justice
Strand, London, WC2A 2LL
Karon Monaghan and Ulele Burnham (instructed by Liberty) for 'M'
Richard Drabble QC and Rachel Perez (instructed by Stachiw Bashir Green) for the Ms LangleyPhilip Sales and Daniel Kolinsky (instructed by Solicitor for Department of Work and Pensions) for the Secretary of State
Kate Olley for Bradford MDC
I have asked Lord Justice Sedley to deliver the first judgment.
Since we heard submissions in relation to these appeals we have received from the solicitors acting for the appellant in the second case a request that her name be given in full. Thus far she has been referred to only as L. We accede to that request.
M is a mother of two children. They live with their father but she shares with him the responsibility for their maintenance. She herself has since 1998 lived in a same-sex relationship, pooling incomes and sharing outgoings with her partner.
Ms. Langley is a woman who, following the break-up of a relationship with a man, remained in what had been their shared home and paid rent to him.
M's case arises out of the calculation of her child support liability. Ms. Langley's case arises out of her claim for housing benefit. Because they raised related issues they were heard together by Mr Commissioner Jacobs. His decision against Ms. Langley, upholding that of the Leeds appeal tribunal, was given on 22 September 2003. His decision in favour of M, upholding that of the Middlesbrough appeal tribunal, was given on 1 October 2003.
In M's case the issue is this: because the prescribed criteria for reducing the liability of absent parents for child maintenance on account of their current housing costs are confined to members of heterosexual couples, her liability is greater than if she were now living in a heterosexual relationship. She has successfully sought resolution of the issue under the Human Rights Act 1998 by having the material regulations treated as applying to her (and by logical extension to members of other same-sex partnerships) as they do to members of heterosexual partnerships and marriages.
In Ms. Langley's case the issue is this: the local authority has decided that she is not entitled to housing benefit because she is paying rent to a former cohabiting partner of the opposite sex when she would not be disentitled to benefit had it been a same-sex relationship. In this argument she has failed before the Commissioner on the ground that she cannot show herself and her chosen comparator to be in a relevantly similar situation.
It is helpful that we have both cases before us, not only because they raise a common issue from widely divergent standpoints but because the reasoning in the one case offers certain challenges to the reasoning in the other.
The legislative schemes
Child support
The broad effect of the material provisions is to allocate the financial responsibility of separated parents for the maintenance of their children by pooling the absent parent's income and outgoings with those of his or her new partner if, but only if, that partner is of the opposite sex. For same-sex couples this means that the one who is an absent parent is assessed as if living alone, with generally disadvantageous consequences.
By s.11 of the Child Support Act 1991, child maintenance is to be calculated in accordance with Schedule 1, which sets out the elements of income and outgoings to be taken into account. These include the following sub-paragraphs:
6(4) The amount which is to be taken for the purposes of this paragraph as an absent parent's disposable income shall be calculated, or estimated, in accordance with regulations made by the Secretary of State.
6(5) Regulations made under sub-paragraph (4) may, in particular, provide that, in such circumstances and to such extent as may be prescribed –
………….
(b) where the absent parent is living together in the same household with another adult of the opposite sex (regardless of whether or not they are married), income of that other adult
is to be treated as the absent parent's income for the purposes of calculating his disposable income.
In the exercise of these powers the Child Support (Maintenance Assessments and Special Cases) Regulations 1992 make the following provision:
1(2) In these Regulations unless the context otherwise requires –
……………
'family' means –
(a) a married or unmarried couple … and any child or children living with them for whom at least one member of that couple has day to day care
………….
'partner' means
(a) in relation to a member of a married or unmarried couple who are living together, the other member of that couple;
…………..
'married couple' means a man and a woman who are married to each other and are members of the same household.
'unmarried couple' means a man and a woman who are not married to each other but are living together as husband and wife.
It is material to the Secretary of State's case that the last of these definitions reproduces that contained in the legislation governing social security benefits: see the Social Security Contributions and Benefits Act 1992, s.137. It is also material that the same definitions are used throughout the child support scheme to ascertain not only the amount of housing costs and protected income but also whose income is to be the basis of the calculation of disposable income.
Within the 1992 Regulations, Sch.3 contains two provisions which are central to this case:
4(1) Subject to the following provisions of this paragraph the housing costs referred to in this Schedule shall be included as housing costs only where –
………..
(b) the parent or, if he is one of a family, he or a member of his family is responsible for those costs; and
(c) the liability to meet those costs is to a person other than a member of the same household.
However, the Regulations themselves provide:
15(3) Where a parent has eligible housing costs and another person who is not a member of his family is also liable to make payments in respect of the home, the amount of the parent's housing costs shall be his share of those costs.
Regulation 11 makes detailed provision for the computation of protected income. It is sufficient for present purposes to reproduce the Commissioner's summary of its effect
"Its purpose is, put crudely, to ensure that the parent's family has enough to live on after child support maintenance has been paid. It operates as a kind of longstop to the formula. Its application is more favourable for a parent who is a member of a family."
This is because Regulation 11(1) (a) depends on the absent parent having a partner, and 11(1) (g) on a child being a member of the absent parent's family – 'partner' and 'family' being, as has been seen, confined by Regulation 1(2) to heterosexual relationships.
The process of assessment involves four stages.
The first stage is the calculation of each parent's assessable income: here the effect of regulation 15(3) and the definition of 'family' is that in the computation of exempt income the non-resident parent's housing costs take no account of those of her current partner where the partner is of the same sex. To the extent that her exempt income falls, her assessable income, and consequently her maintenance contribution, rises.
The second stage is then to assess the maintenance requirement and the non-resident parent's share of it. The third stage is to assess any additional element; but there was none in M's case. The fourth stage is to match the income found to be available to the non-resident parent's family against the protected income, a sum designed to ensure that she and any second family retain enough for their own needs. In this process a non-resident parent who has a partner of the opposite sex, and so ranks as a member of a family, can expect to do better than one whose partner is of the same sex.
There is, however, provision for the making of discretionary departure directions which may mitigate the consequent differential. In the present case, we are told, the initial disparity affecting M, was of the order of £33:00 but has been reduced by this means to about £1:00. No reliance is placed on this, however, by the Secretary of State in relation to the issue of principle.
Housing benefit
The effect of the present scheme is that former heterosexual partners of the lessor are excluded from obtaining housing benefit, where former same-sex partners of the lessor are not.
Regulation 7(1) of the Housing Benefit (General) Regulations 1987 provides:
"7(1) A person who is liable to make payments in respect of a dwelling shall be treated as if he were not so liable where -"
…
(c) his liability under the agreement is -
(i) to his former partner and is in respect of a dwelling which he and his former partner occupied before they ceased to be partners."
By virtue of Regulation 2(1) (a), unless the context otherwise requires, a partner is "a member of a married or unmarried couple". By a provision now contained in s.137 of the Social Security Contributions and Benefits Act 1992 and adopted by the Regulations,
'unmarried couple' means a man and a woman who are not married to each other but are living together as husband and wife …"
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