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[2003] UKSSCSC CCS_1153_2003 (01 October 2003)

DECISION OF THE CHILD SUPPORT COMMISSIONER

My decision is that the decision of the Middlesbrough appeal tribunal, held on 8 November 2002 under reference U/44/234/2002/00217, is not wrong in law.

As indicated at the end of the oral hearing, I reduce the period in which an application may be made for permission to appeal to the Court of Appeal from 3 months to 6 weeks, under the power in regulation 5(2)(a) of the Child Support Commissioners (Procedure) Regulations 1999.

The appeal to the Commissioner

The case comes before me on appeal to a Commissioner against the decision of the appeal tribunal brought by the Secretary of State with the leave of the tribunal's chairman. It concerns the child support maintenance payable with respect to James and Jonathan by their mother. Their mother is, in child support terminology, their absent parent.

In view of the issues raised by the appeal, I directed an oral hearing. It was held before me in Doncaster County Court on 11 September 2003. The Secretary of State was represented by Mr D Kolinsky, of counsel. The absent parent was represented at the hearing by Ms C Lewis of counsel, instructed by Liberty. That organisation had previously instructed Ms S Harrison, of counsel. She provided a skeleton argument, 2 days late. For convenience, I refer hereafter only to Ms Lewis, but she rightly acknowledged the provenance of her skeleton argument. The parent with care did not attend and was not represented.

This case raised similar issues to a housing benefit appeal, CH/1205/2003. The oral hearing of that appeal was held at the same time. The observations of the representatives in each case were of some relevant to the other case. I am grateful to the representatives in the cases for their assistance with the written and oral arguments on both appeals.

The issues

The issues in this case are, broadly, whether certain provisions of the child support legislation violate one of the absent parent's Convention rights and, if they do, whether and how they can be interpreted in order to comply with those rights.

The legislation

The relevant legislation deals with housing costs and protected income.

Housing costs

The relevant housing costs provisions are in the Child Support (Maintenance Assessments and Special Cases) Regulations 1992.

Those provisions deal with the possibility that a parent is living with another person in a home for which the housing costs are the liability of that other person, whether alone or in combination with that parent.

Paragraph 4(1)(b) of Schedule 3 makes the whole of those housing costs eligible as far as the parent is concerned, regardless of who is in law liable for them. However, regulation 15(3) prevents this rule applying if the parent and the other person are not members of a 'family'. It provides:

'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.'

Protected income

The relevant protected income provisions are also in the Child Support (Maintenance Assessments and Special Cases) Regulations 1992. First, though, it is necessary to set out their enabling power. It is in paragraph 6 of Schedule 1 to the Child Support Act 1991. Paragraph 6(4) authorises regulations to be made as to

'The amount which is to be taken … as an absent parent's disposal income'.

Paragraph 6(5) then specifically authorises regulations under paragraph 6(4) to cover circumstances

'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)'.

Regulation 11 is made under the authority of paragraph 6. It determines the amount of a parent's income that is protected under the formula. Its purpose is, put crudely, to ensure that the parent's family has enough to live on after the 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. See the effect of the word 'partner' in regulation 11(1)(a) and (2) and the word 'family' in regulation 11(1)(g).

The definitions

The relevant definitions are in regulation 1(2). They apply 'unless the context otherwise requires'.

1. 'Family' means 'married or unmarried couple'.

2. 'Unmarried couple' means 'a man and a woman who are not married to each other but are living together as husband and wife'. That is the same language as the equivalent definitions in section 137(1) of the Social Security Contributions and Benefits Act 1992.

3. 'Partner' means 'in relation to a member of a married or unmarried couple who are living together, the other member of that couple'.

Analysis

The child support scheme is designed to determine the extent to which parents must contribute towards the maintenance of their children when they are not jointly caring for the children in the same household. The formula under Schedule 1 to the Child Support Act 1991 is an elaborate attempt to balance the financial resources and commitments of each parent in order to determine how much of the cost of maintenance each should bear. That formula recognises the economic reality that the finances of a couple are intertwined in a more intimate way than strict legal liability recognises. It does that by treating the family as an economic unit for the purposes of determining the income and expenses that may have to be met by a parent. The provisions that I have set out are examples of this.

What the tribunal did

The tribunal consisted of one of the lead district chairmen for child support in the appeal tribunal.

Findings

She found that since 1998 the absent parent has lived with another woman in a mutually exclusive sexual relationship. They live in a house that they own as joint tenants, which is being purchased with the help of a joint mortgage. They have had their salaries paid into a joint account from about 2000. The mortgage is paid from that account. The chairman described the relationship in this way:

'[The absent parent] and her partner were living in a very close, loving and monogamous relationship characterised by long term sexual intimacy. Save for the relationship being between 2 persons of the same sex, they were living together in the way that spouses live together.'

Having made those findings, the chairman turned to the law.

Discrimination

She considered that the circumstances of the case fell within the ambit of both article 8 of the European Convention and article 1 of Protocol 1 to the Convention. That brought article 14 into operation. On article 14, read together with either of the other two provisions, it was appropriate to compare the absent parent's relationship with a heterosexual couple:

'Not only is the nature of the relationship directly comparable, but the financial basis and arrangements and commitments of same-sex partnerships may reasonably be expected to demonstrate similarities to and as much variety as those of heterosexual couples.'

Finally, the chairman could find no justification for the different treatment.

Interpretation

Having found that child support law was discriminatory against the absent parent, the chairman considered whether that effect could be removed by interpretation under section 3 of the Human Rights Act 1998. She decided that the definition of 'unmarried couple' could be developed using section 6 of the Interpretation Act 1978, which provides for words importing one gender to be read as importing the other. This led to an inventive adjustment that brought gay couples within the definition.

Three preliminary points

Before identifying and analysing the precise human rights issues that arise in this case, it is convenient to deal with three points made by Mr Kolinsky in the course of his written and oral argument.

Child support and social security

Mr Kolinsky argued that the child support legislation is part of, and to be interpreted as a package with, the social security legislation. I accept that one of the purposes of the child support scheme was to prevent the use of the social security scheme as a means by which absent parents abdicated to the State the cost of maintaining their children. I also accept that some of the definitions and provisions of social security are incorporated into the child support legislation. But that does not make child support an integral part of the social security scheme. The use of the definitions and provisions from social security law are easily explained by convenience. The child support scheme was developed by policy-makers in what was then the Department of Social Security (now the Department for Work and Pensions). Naturally, they used concepts that they were familiar with and adopted provisions that they knew. But as I put it to Mr Kolinsky in argument, if the scheme had been developed in another Department, it would have been structured differently in a way that reflected the knowledge and experience of different policy-makers. So, I accept that there are links between the schemes, but not ones that are so structural or central to child support that it is appropriate to consider its compliance with the Convention rights under the Human Rights Act only as a package with social security law.

The impact of the tribunal's decision

Mr Kolinsky argued that the absent parent had not provided any details of the effect that the tribunal's decision had had on the amount of her liability for child support maintenance. This argument profits the Secretary of State nothing. The Secretary of State is the decision-maker in child support. If the Secretary of State does not know what impact the tribunal's decision had, the answer is simple: work it out. In fact, the absent parent was able to tell us at the oral hearing that the effect of the tribunal's decision had been calculated and that, under it, her liability had been reduced from almost £47 to £14. Even without that information, I would have accepted that the decision would have had a significant impact on her assessment. That seems obvious to me without the need for a precise calculation.

Recognition of gay relationships – wider perspectives

Mr Kolinsky set his arguments in a wider context than domestic law. He referred to the lack of consensus in Europe on the recognition of gay relationships as equivalent to heterosexual ones. He also referred to the present review being undertaken by the Government on this issue. I find those wider perspectives interesting, but not helpful.

As I put to Mr Kolinsky, his argument would be better put to the European Court of Human Rights than to me. That Court sits as a supranational court, making decisions on the international standard that is set by the Convention. At that level, it is relevant to know how different countries deal with an issue. The Court takes account of the degree of consensus among States when applying the margin of appreciation. The wider the divergence between States, the more generous is the margin of appreciation that is allowed. See X, Y and Z v United Kingdom (1997) 24 European Human Rights Reports 143 at paragraph 44. But that approach is not relevant to me sitting in the domestic legal system of one State and deciding what is the national standard within that system.

Nor is the fact that the Government is undertaking a review relevant to me. The issue for me is not how the status of gay relationships in law should be reformed in all its manifestations. The issue for me is whether the exclusion of gay relationships from particular provisions of the child support legislation is in violation of the absent parent's Convention rights and, if it is, whether I can remedy that under the powers given to me by the Human Rights Act. I have a duty under that Act to give effect, within my powers, to the absent parent's Convention rights. I cannot avoid that duty on the ground that the Government is considering wider ranging reform.

The Convention rights

Article 8 - Right To Respect For Private And Family Life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Article 14 - Prohibition Of Discrimination

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

Are the circumstances of the case within article 8?

This is the first issue of human rights law. Ms Lewis did not argue that there had been a violation of article 8. But she did argue that there had been a violation of this article, read in conjunction with article 14.

What is the test that I have to apply? What connection do the circumstances have to have with article 8 in order to allow its use in conjunction with article 14?

The arguments

Ms Lewis relied on the Court of Appeal decision in Ghaidan v Godin-Mendoza [2003] 2 Weekly Law Reports 478. In particular, she relied on Lord Justice Buxton's approval (at paragraph 9) of a passage from a leading textbook that 'even the most tenuous link with another provision in the Convention will suffice for article 14 to come into play'.

Mr Kolinksy argued that there was a 'real threshold' and a 'meaningful hurdle' before article 14 could operate in conjunction with article 14. He relied on Lord Justice Laws' analysis in R (Carson and Reynolds) v Secretary of State for Work and Pensions [2003] 3 All England Law Reports 577 at paragraphs 38 and 39.

As to Ms Lewis' argument, I am of course bound by decisions of the Court of Appeal. However, I have never before heard the link between article 14 and other substantive articles with which it operates described as 'tenuous'. The textbook quoted was not proposing a development in the law, but purporting to state the effect of the Strasbourg jurisprudence.

As to Mr Kolinsky's argument, I have read Lord Justice Laws' judgment. His lordship was clearly dissatisfied with the way that the Strasbourg jurisprudence had developed on article 14. See paragraphs 33 to 36. And he was concerned to distinguish between the article 14 Convention right and the new right not to be discriminated against in article 1 of Protocol 12. See paragraph 39. But he recognised that it was 'plain' that the European Court of Human Rights had not analysed article 14 in as limited a way as he would have preferred. See paragraph 37. And he acknowledged that Lord Slynn had said that the domestic courts should follow 'any clear and consistent jurisprudence' of that court. See paragraph 40. All I can derive from Lord Justice Laws' judgment is that the Strasbourg jurisprudence should be followed if it is clear and consistent.

So, both arguments lead me to the Strasbourg jurisprudence.

The Strasbourg jurisprudence

Article 14 would still be relevant even if it could only operate when a violation of another Convention right had been proven. The fact that discrimination was involved in the breach would be relevant to the remedy that would be given – the amount of just satisfaction under the Convention or of the damages under the Human Rights Act.

However, the jurisprudence has not restricted the application of article 14 to cases in which there has been a violation of another Convention right. It is not necessary to analyse the full extent to which the jurisprudence has gone. To put it another way, it is not necessary to decide whether the link between article 14 and the other Convention right need be no more than 'tenuous'.

There will be a violation of article 14 when read in conjunction with article 8 in at least three circumstances.

1. The State may have complied with the basic duty under article 8(1), but in a discriminatory way. This is clear from the wording of article 14.

2. The State may rely on one of the exceptions under article 8(2), but in a discriminatory way. This is also clear from the wording of article 14.

3. The State may have gone further than the basic duty in article 8(1), but in a discriminatory way. This brings the discrimination within the ambit of the Convention right in article 8(1). Petrovic v Austria (1998) 33 European Human Rights Reports 307 is an example. There the State had gone beyond what was required of it in order to respect family life. It had instituted a parental-leave allowance. But it had done this in a way that discriminated between men and women. The Court said:

'29. By granting parental-leave allowance States are able to demonstrate their respect for family life within the meaning art 8 of the Convention: the allowance therefore comes within the scope of that provision. It follows that art 14 – taken together with art 8 - is applicable.'

Can a gay relationship be a family?

The first issue for me to consider is whether a gay relationship can be a 'family' for the purposes of article 8. It can.

Mr Kolinsky argued that the Strasbourg jurisprudence did not recognise a gay family. I refer to my comments above on supranational and domestic arguments. The Strasbourg jurisprudence reflects the lack of consensus among member States. That does not affect me in deciding the appropriate interpretation of this right in its domestic application.

As far as Strasbourg jurisprudence is concerned, Ms Lewis cited Karner v Austria (Decision on 24 July 2003 - Application No 40016/98). But although that case involved a former gay partner, it turned on the respect for the applicant's home. The Court did not deal with respect for either his private life or his family. See paragraph 33 of the judgment. Mr Kolinsky argued that the Court had 'ducked' the issue of a gay family. That is not correct. The issue just did not arise.

As far as domestic authority is concerned, Ms Lewis referred to Fitzpatrick v Sterling Housing Association Ltd [1999] 4 All England Law Reports 705. In that case, the House of Lords decided that for the purposes of the housing legislation 'family' included a gay couple. That is, of course, not an authority under the Human Rights Act. Nor is it an authority on the general meaning of family in domestic law. It is merely a recognition that, for the purposes of that legislation, it was no longer appropriate to distinguish between heterosexual and gay partners in their succession to an assured tenancy. I also note that in Ghaidan v Godin-Mendoza [2003] 2 Weekly Law Reports 478 the Court of Appeal used the greater freedom given to it by the Human Rights Act to interpret legislation so that heterosexual and gay partners were equivalent for the purposes of succession to a statutory tenancy.

Despite the limited contexts of those decisions, I note that they recognise that it is appropriate for gay and heterosexual couples to share the same rights of succession to property on the death of a partner, which is a normal incident of a family relationship. I also note Lord Slynn's definition (or description) of the characteristics of a family (at page 714):

'The hallmarks of the relationship were essentially that there should be a degree of mutual inter-dependence, of the sharing of lives, of caring and love, of commitment and support. In respect of legal relationships these are presumed, though evidently they are not always present …. In de facto relationships these are capable, if proved, of creating membership of the tenant's family.'

In the particular context of the child support legislation, it seems to me that there is no reason to distinguish families according to the sexual orientation of the partners. The purpose of child support law is to determine the maintenance payable by absent parents for their children. The details of the formula determine the contributions appropriate from each parent. That formula recognises that a family is an economic unit for the purposes of determining the income and expenses that may have to be met by a parent. In that context, why does the sexual orientation of the partners matter? How does this affect the maintenance that should be paid for the parent's child? How does it affect the issue of whether the couple should be seen as an economic unit?

More generally, it seems to me at the beginning of the third millennium that there is no reason to distinguish between families according to whether they are based around heterosexual or gay partners. The distinguishing characteristics are the same. I have already quoted Lord Slynn's definition or description of a family in Fitzpatrick, which was but one of similar comments in the speeches. The chairman's description of the absent parent's relationship with her partner in this case is strikingly similar.

Are the circumstances of this case within the ambit of article 8?

Having decided that a gay relationship is capable of falling within the meaning of 'family' for the purposes of the Convention right under article 8, are the circumstances of the case sufficiently within the ambit of that right for article 14 to apply? They are.

Mr Kolinsky relied on the case of Logan v United Kingdom (1996) 22 European Human Rights Reports (Commission Decision) 178. He argued that it is an authority that the facts of this case are not within the ambit of article 8. I am at a loss to understand how that case can be said to support that argument. The case dealt with the general nature of the child support scheme and its application to that applicant's circumstances. It leaves open the possibility of a violation being shown in relation to specific provisions of the scheme or in particular circumstances. The same comments also apply to the case of Burrows v United Kingdom, on which Mr Kolinsky also relied.

Having rejected Mr Kolinsky's argument, I could simply leave the matter there. But that would not be right in an inquisitorial jurisdiction. I need to justify operating article 14 in conjunction with article 8.

It is undeniable that the provisions on which the absent parent relies recognise the family as an economic unit. So on at least three different analyses, the circumstances of the case are sufficient to allow article 14 to operate in conjunction with article 8:

1. The State may argue that the provisions in the child support formula as a whole are required by article 8(1) in order to show respect of families. If it does that, it can only do so by arguing that they may apply differently between heterosexual families and gay families.

2. The State may argue that one of the exceptions in article 8(2) applies. If it does that, it can only do so by arguing that heterosexual and gay families must be treated differently.

3. The State may argue that the provisions in the child support formula as a whole go beyond what is needed to comply with article 8(1), But if that is correct, they nonetheless show respect for family life and do so differently for heterosexual and gay families. So, the Petrovic reasoning applies.

Are the circumstances of the case within article 1 of Protocol 1?

I do not need to deal with this. But just for the sake of completeness, I record that I reject Ms Lewis' argument that the circumstances of this case are within the ambit of that article.

Article 14

Status

The first issue that I have to determine is whether sexual orientation is a 'status' for the purposes of article 14? It is.

It is not expressly mentioned. But that is not fatal. The language of the article expressly recognises that it is not limited to the listed grounds and may extend to 'other status'. It is not necessary in this case to analyse in detail, as some other common law jurisdictions have done (such as the United States and Canada), the criteria by reference to which the right to protection from unjustified different treatment should be judged. In this jurisdiction, that analysis will be subsumed in the interpretation of the word 'status'. It is sufficient for my purpose to define a status as a characteristic or collection of characteristics, personal or legal, by reference to which the law attaches to an individual, or denies to an individual, legal incidents such as rights, duties, privileges, and disabilities.

In that sense, it seems to me self-evident that the sexual orientation of an individual or a couple is a status and within article 14. Sexual orientation operates, alone and without reference to any other relevant criteria, to prevent common law and statutory provisions applying to a couple who are in all other respects comparable to a heterosexual couple.

It is also supported by the jurisprudence of the European Court of Human Rights. In Salgueiro da Silva Mouta v Portugal (2001) 31 European Human Rights Reports 1055, the Court said, at paragraph 28 of its judgment, that sexual orientation was 'a concept which is undoubtedly covered by Article 14 of the Convention'. And it has reiterated that in several later decisions. I must take the jurisprudence of the European Court into account by virtue of section 2(1)(a) of the Human Rights Act 1998. And I am enjoined by Lord Slynn to apply a clear and consistent line of authority from Strasbourg. This line of authority is both clear (the word 'undoubtedly' could not make the point more clearly) and consistent. So, I would have to follow it even if it did not accord with my view.

The application of article 14

Until this year, the domestic cases on the application of article 14 identified a structured approach that involved four questions. I call this the traditional approach:

• (i) Do the facts fall within the ambit of one of the other Convention rights?

• (ii) If they do, is there a difference in the treatment of the complainant and the complainant's chosen comparators?

• (iii) Are the chosen comparators in an analogous situation to the complainant?

• (iv) If they are, does the difference in treatment have an objective and reasonable justification in that it pursues a legitimate aim and that the different treatment is proportionate to the aims sought to be achieved?

Lord Justice Laws has suggested that questions (iii) and (iv) should be replaced by a compendious question:

'are the circumstances of X and Y so similar as to call (in the mind of a rational and fair-minded person) for a positive justification for the less favourable treatment of Y in comparison with X?

See R (Carson and Reynolds) v Secretary of State for Work and Pensions [2003] 3 All England Law Reports 577 at paragraph 61. I call this Lord Justice Laws' approach.

The Strasbourg jurisdiction identifies the issue as whether the claimant and the comparators are in 'relevantly similar situations'. That was how it was put by the European Court of Human Rights in Fredin v Sweden (1991) 13 European Human Rights Reports 784 at paragraph 60. I call this the European approach.

The traditional approach

I have already dealt with question (i).

As to question (ii), the comparison is between an absent parent who is living with a heterosexual partner and one who is living with a gay partner. Once those comparators are chosen, it is obvious that they are differently treated. This does not require detailed statistical analysis. I trust that the appeal tribunals exercising the social security and child support jurisdictions will use their common sense and experience in order to avoid becoming bogged down in statistics in the way that the employment tribunals have become in the application of anti-discrimination legislation.

As to question (iii), couples are in analogous situations regardless of their sexual orientation. The situation has to be judged in its context. That context is the assessment of liability for child support maintenance. The focus for analogy must be on (a) the need to contribute to a child's financial support and (b) the resources available to provide that support. Once that is identified, it follows as night follows day that couples are in analogous situations regardless of the sexual orientation of the partners.

As to question (iv), I note that the European Court of Human Rights has said that:

'Just like differences based on sex, differences based on sexual orientation require particularly serious reasons by way of justification .…'

See Karner v Austria (paragraph 37 of the judgment).

Mr Kolinksy sought to justify any difference of treatment as part of a joint child support and social security package, parts of which were favourable to gay couples and parts of which were not. I have already explained why I reject that argument. That leaves the Secretary of State with no justification for the difference, just as before the appeal tribunal. At the risk of repeating myself, where the concern is with the resources available to maintain a child of one of the members of a couple, I can see no reason why the sexual orientation of that couple should affect the amount of the resources that are taken into account.

I have considered, although it was not cited on this point at the oral hearing, the decision of the Court of Appeal in R (Hooper) v Secretary of State for Work and Pensions [2003] 3 All England Law Reports 673. That case concerned different treatment between widows and widowers in entitlement to benefits. The Court decided that the State was entitled to a wide margin of appreciation in considering whether and when to change domestic law, and to reasonable time to make the change. This case is different. The margin of appreciation is not wide, as the quotation form Karner shows. Also, this case concerns discrete provisions in a child support scheme that will have little or no impact on public expenditure. So, no time for adjustment is required.

Finally, I refer to a possibility that I considered in the related appeal in CH/1205/2003:

'29. I have considered whether there is an explanation that might account for the omission of any reference to gay relationships other than the lack of risk of abuse to which they might give rise. There are some arrangements of which the law disapproves for policy reasons. It gives effect to this disapproval by refusing to give formal recognition to those arrangements. An example is the way that the law deals with illegal contracts. It also explains, in part at least, the historical failure to make equivalent provision for heterosexual and gay relationships, even when this failure actually operates to the benefit of those in a gay relationship. For example, the incomes of gay couples are not aggregated for income support purposes. This has the result that each partner may be entitled to income support, with the result that a gay household may receive more support from public funds than a heterosexual one. Given the (legitimate) concern at central and local government level about abuse of the housing benefit scheme, I do not believe that this historical reluctance to give legislative recognition to gay relationships would have prevented Parliament, at the very end of the second millennium, from blocking a significant risk of abuse.'

Lord Justice Laws' approach

This differs from the traditional approach only on questions (iii) and (iv).

Applying this approach, I have modestly attributed to myself the qualities of rationality and fair-mindedness. I have also taken into account such knowledge of child support law as I have gleaned over the years. With those qualities and that knowledge, it seems obvious to me (and indeed has seemed from 1992) that the legislation treats gay and heterosexual couples in a way that is not only different, but requires to be justified. For the reasons I have explained, it is not justified.

The European approach

This is merely a different version of the wording of question (iii) in the traditional approach. The same reasoning applies, regardless of how the question is expressed.

Interpretation

So, the provisions of the child support scheme violation the absent parent's Convention right under article 14 when read in conjunction with article 8. That leaves the issue whether it is possible to interpret the legislation in order to comply with that Convention right.

This is governed by section 3(1) of the Human Rights Act:

'(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.'