Upper Tribunal (Administrative Appeals Chamber)

 

IN THE UPPER TRIBUNAL Appeal No: CH/2236/2007

 

ADMINISTRATIVE APPEALS CHAMBER

 

Before: J.P. Powell

 

 

DECISION

 

The decision of the appeal tribunal sitting at Fox Court in London on 13 November 2006, is erroneous in point of law.  The appeal against that decision is allowed and the decision of the appeal tribunal is set aside.

 

In exercise of the powers conferred upon me by section 12(2) of the Tribunals, Courts and Enforcement Act 2007, I remake the decision.  My decision is that the first respondent’s appeal against the appellant’s decision of 4 May 2006, is dismissed.  The first respondent was not at that time entitled to housing benefit and council tax benefit for the reasons given by the appellant in its decision.

 

 

REASONS

 

1. This is an appeal against the decision of the appeal tribunal sitting at Fox Court in London on 13 November 2006 (“the appeal tribunal”).  Permission to appeal was granted to the London Borough of Camden by the legally qualified panel member who comprised the appeal tribunal.

 

2. The appeal relates to housing benefit (“HB”) and council tax benefit (“CTB”).  The appellant is the London Borough of Camden (“Camden”).  Camden is the relevant local authority and was the unsuccessful respondent before the appeal tribunal.  The first respondent is the claimant who applied to Camden for HB and CTB and whose appeal against a refusal to award him those benefits succeeded before the appeal tribunal.  It is convenient to refer to him as “the claimant”.  The Secretary of State for Work and Pensions accepted an invitation from me to be joined as a party to the appeal in the Upper Tribunal.  He was joined as the second respondent.  I shall refer to him as “the Secretary of State”.

 

3. The appeal was the subject of an oral hearing which took place before me on 19 October 2010.  Camden was represented by its Policy and Appeals Officer, Mr Martin Scott.  The Secretary of State was represented by Miss Marie Demetriou, of Counsel, instructed by Miss Anna Powick of the Office of the Solicitor to the Departments of Work and Pensions and Health.  The claimant is represented by the Mary Ward Legal Centre.  His advocate at the hearing was Mr Michael Laschinger who described himself as acting as agent for the Mary Ward Legal Centre.  Mr Scott and Miss Demetriou agreed that the main burden of presenting and arguing the appeal should be undertaken by the latter.  That was a sensible arrangement.  Not because Mr Scott lacked the necessary ability – on the contrary, his abilities are evident from the case papers – but because Miss Demetriou is an extremely experienced advocate in appeals of this nature.

 

4. The main contest was, accordingly, between Miss Demetriou and Mr Laschinger.  I should like to pay tribute to the written and oral submissions of both of them.  Any case conducted by Miss Demetriou is conducted with clarity, concision and courtesy. Mr Laschinger is a worthy opponent who made his closely argued submissions politely but with force.  The claimant is lucky to have had him as his advocate.  After the hearing Mr Laschinger made the written application to which I refer below.

 

5. The claimant attended the hearing until his presence was required elsewhere.  He does, now, have full responsibility for the relevant children and, towards the end of the afternoon,  he had to leave to look after them.  I am grateful to him for coming.  He answered a number of questions which I put to him.  Although the number was small he came over from his answers as a man of much common sense and dignity.  Although his current position differs from what it was when he applied for benefit, I appreciate that when he made his application his family circumstances were extremely difficult.  He had joint responsibility for two children.  They lived with him for 50% of the time.  Against this, his earnings as a teacher were small and he was unable to obtain benefit.  I find it difficult to understand how he managed.  If the choice was mine alone I would award him benefit in hope that the lump sum he would then receive would be some compensation for his past experiences.  However, the choice is not mine.  I am bound to apply the law.

 

The facts and the issue

6. I have already said that this appeal relates to HB and CTB.  The relevant sets of regulations are the Housing Benefit Regulations 2006 (SI 2006/213) (“the HB Regulations”) and the Council Tax Benefit Regulations 2006 (SI 2006/215).  As is often the case, the relevant provisions in each set of regulations are in substantially the same terms.  Those provisions are mainly contained in regulation 20 (“regulation 20”) of the HB Regulations and regulation 10 of the Council Tax Benefit Regulations 2006.  The appeal has been conducted and argued as an HB appeal but on the basis that the relevant provisions are in the same terms and that whatever is the answer with regard to HB must also be the answer with regard to CTB.  I propose dealing with the appeal in the same way in this decision.  I shall only occasionally refer to CTB.

 

7. There is no dispute about the facts and it is convenient to state them shortly.  The claimant is a man.  He has three children.  A son who was born in October 1987, a second son who was born in January 1994 and a daughter who was born in September 1995.  At the relevant time, in 2006, the elder son had attained 18.  He does not figure in the story and I shall ignore him for the remainder of this decision.  The claimant’s younger son was then aged 12 and the daughter was 10.  They do figure and I shall refer to them as the “son” and the “daughter” and, together, as the “children”.  Unfortunately the relationship between the claimant and their mother broke down and a separation took place in 2003.  Matrimonial proceedings followed.  An important issue in such proceedings was what arrangements were to be made for the son and the daughter – who were still very young at that time.  Very sensibly their parents reached an agreement that the children should spend equal amounts of time with each of them.  I believe the agreement reached was that each parent would have the children for half the working week and alternate weekends.  The precise terms of the arrangement do not, however, matter.  The important point is that the children were cared for equally and therefore stayed with the claimant for 50% of the time.  This is common ground between the parties before me and the appeal has been argued on that basis.  It is also common ground that the mother of the children was receiving child benefit in respect of both of the children.  It is that fact which gives rise to this appeal.

 

8. The claimant is a teacher.  In April 2006, he was working for a local authority.  The precise terms on which he did so have not been explored and are not relevant.  What is important is that his earnings were modest.  It is common ground that he was earning about £14,400, per annum.  In 2006, that was a relatively small amount – particularly if the recipient was required to look after two young children – even if they only stayed with him for 50% of the time. In April 2006, the claimant applied to Camden for HB and CTB.  On 4 May 2006, Camden made the decision under appeal.  The decision was summarised in Camden’s submissions to the appeal tribunal in the following terms.

“The decision was that [the claimant] was not entitled to Housing Benefit and Council Tax Benefit.  The decision was based on a comparison of [the claimant’s] income and applicable amount.

 

The appeal is about the calculation of the applicable amount.  In particular, it did not include an amount for [the claimant’s] children.  [The claimant] says an amount in respect of his children should have been included.”

The complete decision, together with the relevant calculations, will be found at pages 27 to 33A of the case papers. 

 

9. HB is a means tested benefit.  Put simply, entitlement is normally determined by calculating, in accordance with the HB Regulations, a person’s “applicable amount” and then comparing the figure arrived at with his income.  Again, calculated in accordance with the regulations.  If his applicable amount exceeds his income the balance is payable by way of HB.  Of course, it will often be a lot more complicated than that but what I have said is enough for the present.  The calculation of a person’s applicable amount depends on his circumstances.  A single man will be given an amount in respect of himself and an amount in respect of any child or young person who is a member of his household and for whom he is responsible.  Various other amounts, called “premiums”, may also have to be taken into account.  In the claimant’s case, in 2006, his applicable amount only included an amount in respect of himself.  On that basis his income, small though it was, exceeded his applicable amount.  Consequently, he was not entitled to HB or CTB.

 

10. No account was taken of the children when calculating the claimant’s applicable amount.  This was not because they did not form members of his household.  It was on the basis that, because of the operation of regulation 20, and the fact that the mother of the children was receiving child benefit, he did not have “responsibility” for them for the purposes of the HB Regulations.  If the children had been taken into account his applicable amount would have exceeded his income by a significant amount and he would have received nearly £40 per week in HB.  That would work out at about £2,000 per annum.  The significance to him clearly emerges when that figure is compared to his annual income of about £14,400.

 

11. At an early stage in the appeal proceedings it was accepted that Camden’s construction of regulation 20 – that is, that the claimant did not have responsibility for his children – was correct in domestic law.  Further, that the claimant derived no support from EU Council Directive 79/7/EEC.  Consequently, and despite a number of references to it, the claimant’s appeal derived no direct support from the Court of Appeal’s decision in Hockenjos –v- Secretary of State for Work and Pensions (No. 2) [2004] EWCA Civ 748, reported as R(JSA), 2/05 (“the Hockenjos case”).  In that case the Court of Appeal was concerned with, and based its decision upon, article 3.1 of the Directive.  Instead, before the appeal tribunal and now before me the claimant relied on the Human Rights Act 1998, and the European Convention on Human Rights (the “Convention”).  In particular he relied, and continues to rely, on article 14 of the Convention (prohibition of discrimination) when read with article 8 (right to respect for private and family life) and article 1 of the First Protocol (“1/P1”) (protection of property).  His arguments succeeded before the appeal tribunal.  Camden then sought, and obtained from the legally qualified panel member who had decided the appeal, permission to appeal to what has become the Upper Tribunal.  It is appropriate to set out the domestic legislation, the articles of the Convention which are relied upon and then the decision of the appeal tribunal.

 

Domestic legislation

12. I begin with regulation 22 of the HB Regulations which sets out how a person’s weekly applicable amount is to be calculated.

22. Subject to regulations 23, 24, 80 and 81 and Schedule A1 (polygamous marriages, patients, calculation of weekly amounts, rent free periods and treatment of claims for housing benefit by refugees), a claimant’s weekly applicable amount shall be the aggregate of such of the following amounts as may be applicable in his case –

(a) an amount in respect of himself or, if he is a member of a couple, an amount in respect of both of them, determined in accordance with paragraph 1(1), (2) or (3), as the case may be, of Schedule 3;

(b) an amount determined in accordance with paragraph 2 of Schedule 3 in respect of any child or young person who is a member of his family;

(c) if he is a member of a family of which at least one member is a child or young person, an amount determined in accordance with Part 2 of Schedule 3 (family premium);

(d) ...

Regulation 22(b) harks back to section 137 of the Social Security Contributions and Benefits Act 1992, which sets out a number of definitions.  The expression “family” is defined to mean, inter alia;

137(1)  In this Part of this Act, unless the context otherwise requires –

...

“family” means –

...

(c) except in prescribed circumstances, a person who is not a member of a couple and a member of the same household for whom that person is responsible and who is a child or a person of a prescribed description;

In short, for the two children to be counted as members of the claimant’s household they had to be members of his household and he had to be responsible for them.  There is no issue as to their being members of his household.  What is very much in issue is whether he was responsible for them.  He was, of course, responsible for them as that term is normally understood.  However, was he responsible for them for the purposes of housing benefit?

 

13. To decide that one must turn to regulation 20 of the HB regulations.

20.(1) Subject to the following provisions of this regulation a person shall be treated as responsible for a child or young person who is normally living with him and this includes a child or young person to whom paragraph (3) of regulation 19 applies.

This provision is uncontroversial.  The controversy arises in relation to paragraphs (2) and (3), which are as follows.  Regulation 19(3), which provides what is to happen in certain circumstances where a child or young person dies, is not relevant in this case.

(2) Where a child or young person spends equal amounts of time in different households, or where there is a question as to which household he is living in, the child or young person shall be treated for the purposes of paragraph (1) as normally living with –

(a) the person who is receiving child benefit in respect of him; or

(b) if there is no such person –

(i) where only one claim for child benefit has been made in respect of him, the person who made that claim, or

(ii) in any other case the person who has the primary responsibility for him.

 

(3) For the purposes of these Regulations a child or young person shall be the responsibility of only one person in any benefit week and any person other than the one treated as responsible for the child or young person under this regulation shall be treated as not so responsible.

At the time when the claimant applied for HB, the children spent equal amounts of time in their parents households and their mother was receiving child benefit in respect of both of them.

 

14. It is also useful to set out the statutory provisions relating to entitlement to child benefit.  Section 141 of the Social Security Contributions and Benefits Act 1992, is the basic provision.  It provides that a person who is responsible for one or more children in any week shall be entitled to a benefit to be known as “child benefit” for that week in respect of the child, or each of the children, for whom he is responsible. Section 144(3) of the 1992 Act then provides as follows.

(3) Where, apart from this subsection, two or more persons would be entitled to child benefit in respect of the same child or a qualifying young person for the same week, one of them only shall be entitled; and the question which of them is entitled shall be determined in accordance with Schedule 10 to this Act.

I set Schedule 10 out in full.  It deals with a number of different situations.  For present purposes the important provision is paragraph 5.  Paragraph 2, by reference to section 143, provides that a person who has the child living with him in the relevant week has priority over someone who does not but makes a substantial contribution to the cost of providing for the child.

 

Person with prior award

1.(1) Subject to sub-paragraph (2) below, as between a person claiming child benefit in respect of a child or qualifying young person for any week and a person to whom child benefit in respect of that child or qualifying young person for that week has already been awarded when the claim is made, the latter shall be entitled.

 

(2) Sub-paragraph (1) above shall not confer any priority where the week to which the claim relates is later than the third week following that in which the claim is made.

 

Person having child and qualifying young person living with him

2. Subject to paragraph 1 above, as between a person entitled for any week by virtue of paragraph (a) of section 143 above and a person entitled by virtue of paragraph (b) of that subsection the former shall be entitled.

 

Husband and wife

3. Subject to paragraphs 1 and 2 above, as between a husband and wife residing together the wife shall be entitled.

 

Parents

4.(1) Subject to paragraphs 1 to 3 above, as between a person who is and one who is not a parent of the child or qualifying young person the parent shall be entitled.

 

(2) Subject as aforesaid, as between two person residing together who are parents of the child or qualifying young person but not husband and wife, the mother shall be entitled.

 

Other cases

5. As between persons not falling within paragraphs 1 to 4 above, such one of them shall be entitled as they may jointly elect or, in default of election, as the Secretary of State may in his discretion determine.

 

Supplementary

6.(1) Any election under this schedule shall be made in the prescribed manner.

 

(2) Regulations may provide for exceptions from the modifications of the provisions of paragraphs 1 to 5 above in relation to such cases as may be prescribed.

 

The relevant regulations are the Child Benefit (General) Regulations 2006 (SI 2006/223).  So far as I am aware they do not, save for regulation 15 which is not relevant for present purposes, amend the above rules for priority.  The discretion under paragraph 5, is now normally exercised by decision makers acting on behalf of Her Majesty’s Revenue and Customs.

 

The relevant articles of the Convention

15. The parties’ submissions proceeded to directly address the relevant Articles of the Convention without referring to the Human Rights Act 1998, itself.  I shall follow that course. The relevant Articles are the following.

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.

 

Article 1 – Protection of property

Every natural or legal person is entitled to the peaceful enjoyment of his possessions.  No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.  The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

 

The appeal tribunal’s decision

16. The appeal was the subject of an oral hearing which took place on 13 November 2006.  The claimant attended together with a representative.  Mr Scott appeared on behalf of Camden.  The appeal tribunal’s record of the proceedings, which is relatively short, will be found at pages 70 to 72 of the case papers.  The appeal tribunal’s decision, and its reasons for the decision, are set out in the decision notice which it issued at the conclusion of the hearing and which it subsequently directed should stand as its statement of reasons.  I shall set it out in its entirety.

“The Housing Benefit appeal is allowed.

 

The decision of the Respondent in relation to Housing Benefit/Council Tax Benefit issued on 4/5/06 is revised.

 

[The claimant] is not disentitled to these benefits on the basis that he is not in receipt of Child Benefit and consequently not entitled on the face of the UK legislation to amounts for them.  His applicable amount is to be recalculated to determine whether he qualifies on the basis that his two children live with him.

 

Reasons: The tribunal considers that Directive 79/77 is not applicable to [the claimant] because Housing and Council Tax Benefits do not fall within the scope of Art 3.1, which is limited to social assistance in so far as it is intended to supplement/replace the schemes listed at 3.(1).  Housing and Council Tax benefits are applicable to those on low income, regardless of their benefit position.

 

However, the tribunal considers that there is a breach of [the claimant’s] human rights as follows:  Article 8 is engaged by the refusal of housing benefit, which is the state’s response to bolstering family life. There is indirect discrimination under article 14 on the basis of [the claimant’s] gender.  Child Benefit, which is the foundation for responsibility for a child, is overwhelmingly given to the ex-wife, as happened here.  The tribunal cannot see any justification for the discrimination for the same reasons given in Hockenjos (in relation to dir 79/7).

 

Accordingly regulation 20 of the HB Regs, and the equivalent for CT purposes is disapplied.  There are no powers to apportion the applicable amount for the children between [the claimant] and his former partner.”

 

17. For completeness, and because it is short, I shall also set out the text of the document headed “statement of reasons for the decision” and dated 20 February 2009, which appears at page 75 of the papers.

“1. The appellant made a claim for Housing Benefit and Council Tax Benefit on 20/4/06.  The remainder of the facts are as stated in the Submission.  There is no dispute about them.

 

2. The disputed law and the Authority’s interpretation has been set out in the Submission.  The appellant’s arguments are based on Hockenjos.  The tribunal’s reasoning is set out in the Decision Notice, which is to be read in conjunction with this Statement.

 

3. The tribunal concluded that, on construction, the “anti-test” case provisions were inapplicable to the appeal.

 

4. The Decision Notice issued at the hearing shall stand as a Statement of Reasons.”

It is only fair to point out that although both parties were represented before the appeal tribunal that body had neither the benefit of the detailed submissions that have been put to me nor the amount of time I have had to consider them

 

18. A preliminary, but nevertheless important, point is that the appeal tribunal struck out, or “disapplied”, regulation 20, and the equivalent CTB regulation in their entirety and not just the parts which deprived the claimant of responsibility for the children.  However, on my reading of the legislation, to strike out the whole of these two regulations went beyond what the claimant was seeking and was of no assistance to him.  Regulation 20, and its CTB equivalent, were essential parts of the chain of legislative provisions which allowed an amount is respect of the children to be taken into account when calculating the claimant’s weekly applicable amount.  Without these regulations he was in no better position.  In my judgment the appeal tribunal’s decision was, accordingly, clearly erroneous in point of law.  I am sure that it came about because of the appeal tribunal’s highly commendable desire both to do justice and to decide what was a difficult appeal quickly.  Unfortunately, it did not consider the relevant legislation in sufficient detail.  This particular error would not, on its own, matter greatly.  If I was convinced that it was the only error of law it would be open to me to give a less sweeping decision and thus correct the appeal tribunal’s decision in a way that would assist the claimant.

 

Proceedings on the appeal from the appeal tribunal

19. The claimant was granted permission to appeal to what were then the Social Security Commissioners and what has now become the Administrative Appeals Chamber of the Upper Tribunal.  There followed a series of case management directions.  The Secretary of State accepted an invitation to be joined as a party and became the second respondent.  Submissions were exchanged.  In June 2008, observations were lodged on behalf of the claimant which sought a number of directions including directions that he “be given permission to adduce further statistical evidence in support of the indirect discrimination argument” and that he “be given permission to submit a witness statement describing the impact regulation 20 has had on his family life”.  An oral hearing was also sought and it was suggested that the present appeal might be heard together of other appeals which were  indentified in rather general terms.  The Secretary of State was broadly in agreement with what the claimant sought and, in turn, sought permission to adduce a witness statement “addressing further the justification argument set out in his submissions”.  He was, however, extremely cautious about the present appeal being heard with other appeals.  In effect, he wanted further information identifying such appeals and the opportunity to make observations before any decision was made.

 

20. Investigations within the office of the Administrative Appeals Chamber revealed that one, possibly relevant, appeal was at an advanced stage.  This was CTC/2608/2008, and a decision from Judge Jacobs was expected shortly.  I shall refer to this appeal as “the Humphreys case”.  I stayed the present appeal, subject to further directions being given, pending the final determination of that case either by Judge Jacobs or on further appeal.  I gave no further directions for the conduct of this appeal at that stage.  Judge Jacobs’s decision was given in February 2009.  His decision was appealed to the Court of Appeal.  That court gave judgment on 11 February 2010.  The citation number is [2010] EWCA Civ 56. The appeal against Judge Jacobs’s decision was dismissed.  Pending the Court of Appeal’s judgment the stay remained in place.  Following the judgment it was not clear whether Mr Humphreys would succeed in obtaining permission to appeal to the Supreme Court.  I gave directions removing the stay and providing for the conduct of this appeal.  An oral hearing appeared appropriate but I considered that to join the present appeal with any other appeal in the Upper Tribunal would be likely to cause further delay which could be avoided.  I directed the parties to try and agree a set of directions.  I am glad to say that agreed directions were put before me which I accepted with only small amendments.  The directions were, for the most part, unexceptional.  However, they asked that no oral hearing take place before September 2010.  The Secretary of State was directed to file a witness statement if so advised.  There was no mention in the agreed directions of the claimant adducing any further statistical evidence or submitting a witness statement.

 

21. The agreed directions were duly complied with.  Written submissions were lodged accompanied by, in the case of the Secretary of State, a witness statement made by Karen Lesslie.  She is a policy adviser in the Housing Benefit Strategy Division of the Department for Work and Pensions.  As already recorded, the hearing before me took place on 19 October 2010. Before I turn to the parties’ submissions it is convenient to deal with one other matter.  Mention has been made of the Humphreys case.  By the time of the hearing it was known that Mr Humphreys had been refused permission to appeal by the Court of Appeal and had renewed his application to the Supreme Court itself.  The outcome was unknown by me or any of the advocates on 19 October 2010.  However, more or less contemporaneously with that hearing the Supreme Court granted Mr Humphreys permission.  Mr Laschinger says that that notification was given on 20 October 2010.  Mr Humphreys appeal is unlikely to be heard for some time.  I believe that the Supreme Court is not expected to hear the matter before the summer, or even the autumn, of the present year.  Mr Laschinger made a written application to me seeking a number of directions in the light of Mr Humphreys having been granted permission.  He asked that the appeal be further adjourned with the following directions.

2.1 Each party shall notify the Tribunal and the other parties as soon as the result of the appeal to the Supreme Court in Humphreys v HMRC becomes known to that party; and each party may, within 14 days after such notification (or the first if more than one shall be made), present to the Tribunal and to the other parties a reasoned submission as to whether the Tribunal should direct that the hearing be re-opened;

 

2.2 The First Respondent may cause to be prepared, and may produce an expert report on a statistical basis to establish facts for assessing whether regulation 20(2)(a) of the Housing Benefit (General) Regulations 2006, read with regulation 20(3), discriminates indirectly against male claimants who share care of their children equally with a mother living apart.  The terms of reference of such expert report shall be agreed by the parties or, in default, determined by the Judge on the application of any party.

 

2.3 The Appellant and the Second Respondent are to provide such information as the First Respondent may reasonable require of them for the purposes of the expert report, being information in those parties’ respective possession that can be provided without disproportionate cost.

 

2.4 The expert report may be prepared and produced at any time, but shall in any event be produced no later than 42 days after a direction by this Tribunal as to the re-opening of the hearing.”

Detailed reasons for the application were then set out.

 

22. I considered the application and decided that it was unnecessary to seek the views of the other parties.  I refused the request for an adjournment and said that:

“14. I propose dealing with the application in this way.  I shall write my decision and issue it to the parties.  Any party who wishes to appeal may apply for permission to appeal in the usual way.  If I consider that I cannot properly dispose of the application without knowing how the Supreme Court deals with the Humphreys case, I shall defer deciding the application for permission until the Supreme Court’s judgment are to hand.  I shall then allow a short time for further submissions to be made.”

In fact, when I came to write this decision and thus to consider the arguments it became clear, as Mr Laschinger had consistently submitted, not least when he did so with much supporting detail at paragraph 5 of his written submissions, that the facts in the Humphreys case, and the way in which the benefit there in issue operated, were far removed from the present.  The reasoning of Judge Jacobs and the Court of Appeal in that case has little to do with the present appeal.  The Humphreys case is, on reflection, something of a red herring and I do not rely upon it.  Nevertheless, what I said when dealing with Mr Laschinger’s application, and which I have just quoted, stands. 

 

23. I also refused the claimant’s request to be allowed to adduce further statistical evidence.  I set out my reasons in some detail.  See my written determination of the application dated 17 December 2010.  In summary form they were as follows.  There was no such statistical evidence before the appeal tribunal.  The application was made at very late stage.  Namely, after oral argument on the appeal in the Upper Tribunal had concluded.  Those representing the claimant have known for a very long time that the evidential basis of appeal tribunal’s decision was under challenge.  An application to adduce statistical evidence was made in June 2008, but was subsequently not proceeded with.  There is now a strong a strong possibility that attempts to produce such evidence may give rise to subsidiary litigation.  Finally, there is no guarantee that relevant data is available and, further, no guarantee that, if it is, it will support the claimant’s case.

 

24. I therefore turn to the parties’ submissions on the appeal.  It will be recalled that, by agreement, the burden of arguing the appeal was accepted by Miss Demetriou.  Her submissions fell into two parts.

(1) That the claimant has not demonstrated that regulation 20(2) is liable to have an indirectly discriminatory effect on male housing benefit claimants; and

(2) in any event, any indirectly discriminatory effect is objectively justified.

I propose taking each of these parts in turn.

 

Has indirect discrimination been established?

25. It is convenient to repeat the appeal tribunals findings and reasoning in relation to the point.  Having said that article 3.1 of Directive 79/77/EEC did not apply, the appeal tribunal went on to say:

“However, the tribunal considers that there is a breach of [the claimant’s] human rights as follows:  Article 8 is engaged by the refusal of housing benefit, which is the state’s response to bolstering family life. There is indirect discrimination under article 14 on the basis of [the claimant’s] gender.  Child Benefit, which is the foundation for responsibility for a child, is overwhelmingly given to the ex-wife, as happened here.  The tribunal cannot see any justification for the discrimination for the same reasons given in Hockenjos (in relation to dir 79/7).

 

Accordingly regulation 20 of the HB Regs, and the equivalent for CT purposes is disapplied.  There are no powers to apportion the applicable amount for the children between [the claimant] and his former partner.”

I am bound to say that, subject to the submissions of Mr Laschinder, which I shall consider in a moment, there was no evidence available to the Appeal Tribunal to support its statement that “Child Benefit ... is overwhelmingly given to the ex-wife”.  The appeal tribunal simply assumed that this was so without either considering any evidence or, indeed, examining in detail the reasons which led the Court of Appeal to reach the decision which it did in the Hockenjos case.

 

26. Miss Demetriou began by submitting that the Secretary of State accepted that the case fell within the ambit of 1/P1 such as to engage the application of Article 14 of the Convention.  The Secretary of State does not, however, accept that the case falls within the ambit of Article 8.  She submitted that the latter point did not require to be determined given the concession in relation to 1/P1.

 

27. She then pointed out that the provision which is under attack is regulation 20(2).  That provision operates in very specific circumstances.  It begins with the words (the italics are mine):

“Where a child or young person spends equal amounts of time in different households, or where there is a question as to which household he is living in ...”

The paragraph applies in two circumstances.  First, where, as in the present case, the relevant child or children spend equal amounts of time in different households.  Secondly, where there is a question as to which household a child is living in.  I add that this appeal is not concerned with the second case.  Difficult questions can arise where adverse financial or health reasons or other unfortunate circumstances make it difficult to determine in which household a child is living in the sense of where he or she is principally based.  For example, I have encountered a case where, because the child’s mother suffered from serious health problems, the child spent considerable amounts of time being cared for by his grandparents.  The present appeal is only concerned with the first case and, as Miss Demetriou submits, this means that the child or children spends equal amounts of time in the different households.  In this case the arrangements agreed to by the court included a provision that the children should spend equal amounts of time with each of their parents.

 

28. Miss Demetriou stresses that I am not dealing with a case where one parent is the majority carer and the other is a minority carer.  Care, including overnight stays, was shared equally and in such circumstances regulation 20(2) treats the parent who receives the child benefit as responsible for the child.  She goes on to submit that it is not self-evident that, of the pool of parents who share the care of their children on such a basis, a greater proportion of women than men are likely to be in receipt of child benefit. The emphasis on equal shared care is important.  If a mother has the children for six or five days a week, with the father looking after them for the remaining day or two days, one would expect the mother to be in receipt of child benefit.  There is, of course, no evidence before me to this effect but its is what one would expect.  Putting it another way, a father who claimed discrimination would have to get over the argument that he was, in fact, caring for the children for only 10% or 20% of the time.  However, the closer one comes to 50:50 the less strong the mother’s claims would become.  Miss Demetriou submits that when, as here, equality is reached a claim that discrimination has occurred calls for evidence.  Further, the pool is a specific one.  She goes on to submit that a tribunal should be reticent to find indirect discrimination without strong evidence.  It is for the claimant to adduce such evidence.  She referred me to paragraphs 17 and 18 of Carnwath L.J’s judgment in Esfandiari  –v- Secretary of State for Work and Pensions [2006] EWCA 282.

“17. Finally, although detailed discussion is not required in this case, I agree with Mr Sales that caution is necessary in applying the concept of indirect discrimination to the somewhat loosely defined categories used by Art.14 of the Convention. The case law is as yet relatively limited; see Thlimmenos v Greece (2001) 31 EHRR 15 at [44]; Jordan v UK (2001) 37 E.H.R.R. 52 at [154]; PRETTY v UK (2002) 35 EHRR 23 at [88] – [90]; and Hoogendijk v Netherlands 92005) 40 E.H.R.R. SE22 at 206 – 207.

 

18. In so far as one can distil a test from the cases, the question seems to be whether the effects on the particular group are “disproportionately prejudicial” (see, e.g. Jordan at [154].  If that is the test, then even assuming that “recent migrants” are to be treated as a “particular group”, it has not in my view been shown that the effects of the condition are “disproportionately prejudicial” to the group as a whole, whatever the effects in these individual cases.”

 

29. Miss Demetriou also referred to Hoogendijk –v Netherlands – an admissibility decision.  The facts of that case are far removed from the present.  It is enough to say that the unfortunate Mrs Hoogendijk, who suffered from a high degree of disablement, lost benefits to which she had been entitled as a consequence of amendments which the Dutch government introduced to remove the discriminatory exclusion of married women from the relevant security scheme while at the same time seeking to keep the costs of the scheme within acceptable limits.  Mrs Hoogendijk was one of the consequential losers and official figures showed that greatly more women than men were adversely affected by the particular amendment about which she complained.  The European Court of Human Rights dealt with discrimination towards the end of its judgment.  About six paragraphs from the end it said this.

“Although statistics in themselves are not automatically sufficient for disclosing a practice which could be classed as discriminatory under Art.14 of the Convention (see Jordan v United Kingdom: (20030 37 E.H.R.R. 2 at [154], the Court cannot ignore that, according to the results of the research carried out by the Social Insurance Council on the effect of the implementation of the AAW Reparation Act of May 3, 1989 as submitted by the applicant, a group of about 5,100 persons lost their entitlement to AAW benefits on account of failure to meet the income requirement and that this group consisted of about 3,300 women and 1,800 men.

 

As to the Government’s argument that, without further substantiation, these figures cannot be given the significance attributed to them by the applicant, the Court considers that where an applicant is able to show, on the basis of undisputed official statistics, the existence of a prima facie indication that a specific rule – although formulated in a neutral manner – in fact affects a clearly higher percentage of women than men, it is for the respondent Government to show that this is the result of objective factors unrelated to any discrimination on the grounds of sex.  If the onus of demonstrating that a difference in impact for men and women is not in practice discriminatory does not shift to the respondent Government, it will be in practice extremely difficult for applicants to prove indirect discrimination.  As no such objective factors have appeared or have been submitted by the respondent Government, the Court accepts as sufficiently demonstrated that the introduction of the income requirement in the AAW scheme did in fact have an indirect discriminatory effect in respect of married or divorced women having become incapacitated for work at a time when it was not common in the Netherlands for married women to earn an own income from work.”

In other words, if statistics demonstrate a prima facie case of discrimination, it is open to the respondent Government to show that the statistics do not tell the whole story and that the imbalance demonstrated is the result of objective factors which are not related to discrimination on the grounds of sex or whatever other ground of discrimination is alleged.  This, as I understand the court, goes to the issue of whether discrimination can be established rather than the issue of whether, discrimination having been established, that discrimination can be justified.

 

30. For completeness, the court moved on to consider whether there was a reasonable an objective justification for the amendment.  It stated:

“The Court notes that the income requirement – applicable to both men and women and irrespective of their marital status – was introduced in the AAW scheme in order to remove the discriminatory exclusion of married women from this scheme whilst seeking to keep the costs of the AAW scheme within acceptable limits.  The Court accepts that this constitutes a reasonable and objective justification.”

 

31. Miss Demetriou, having stressed that the evidential burden on the claimant is high, submitted the following (her italics).

“23. Thus, in the present case, it is necessary that, in cases of equal custody, the number of female former partnners receiving Child Benefit payments in preference to their male counterparts is so high that regulation 20 HBR has a disproportionately prejudicial effect on male former partners.  This has clearly not been established, and no evidence of such an effect has been adduced.”

 

32. Mr Laschinger, on behalf of the claimant, was faced with the problem of not being able to point to any actual evidence.  However, he emphasises the appeal tribunal’s findings and reasoning and seeks to support them.  He submits that the District Chairman, as she then was, “was very experienced and would have based her finding that CB is “overwhelmingly given to the ex-wife” on her experience of the many appeals in which CB enjoyment was an element, whether in dispute or not”.  Mr Laschinger then refers to the Hockenjos case, and after summarising the decision of the Court of Appeal, submits:

“2.5 In Hockenjos there was a statistical report showing that 92% of men who shared the care of their children at least 104 nights a year were not in receipt of CB, while only 8% of women  who similarly shared care were not in receipt of CB.  On that basis DWP there conceded “statistical discrimination” in favour of women ([see paragraphs 14 and 15 of the judgments] see also Humphreys para 61).  That supported [the District Chairman’s] inference from her own experience. ...”

 

33. Mr Laschinger welcomed the Secretary of State’s acceptance that the case fell within the ambit of 1/P1 so as to engage the application of Article 14.  However, in relation to the submission that it did not fall within the ambit of Article 8, he not only submitted that it did but also that “each incompatibility tends to enhance the serious of the other”  He put forward closely argued submissions in support of this proposition and he referred to the social policy objective promoted by the Children Act 1989.  He continued:

“3.6 The “humane object of HB has been described by the House of Lords as “assisting those of modest means to provide themselves with a roof over their heads”. ...  The State had, in the HB Regulations’ Applicable Amount, devised a method for calculating what financial assistance C needed for such a home.  It was the same as that which the State would have applied to C’s [the claimant’s] ex-wife had she been in remunerative employment and claimed HB to support her home - save in one key respect.  As she was in receipt of HB, she alone would have the family premium and child allowances in her Applicable Amount – while he could not: although these exist to take account of family life – involving equal 50/50 children’s shared residence in each case.  Thus, on the state’s own calculation of financial sufficiency, she would have enough while C had insufficient for the purpose.  Of course, if she is on income support, she is “passported” to maximum HB.

 

3.7 The CB requirement had, on the face of it, no relevance to the amount of financial assistance that the State had decided was necessary for maintaining a home or family life.  It thus interfered with C’s exercise of the right to respect for his home and family right which the State had otherwise provided for, and did so in no interest such as paragraph 2 of the Article envisaged.  It was serious both because under Regulation 20(2)(a) it specifically targeted 50/50 shared residence agreements such as C’s; and because (on FTT’s findings of fact) it was discriminatory by sex.”

 

My conclusion on discrimination

34. A preliminary point.  Given the Secretary of State’s acceptance that Article 14 is engaged because the matter falls within the ambit of 1/P1, it is unnecessary for me to consider whether article 14 is further engaged by virtue of Article 8.  I do not, therefore, propose determining the point.  I do, however, bear in mind Mr Laschinger’s submission that “each incompatibility tends to enhance the seriousness of the other” and his supporting submissions (set out in paragraphs 3.3 to 3.7 quoted above).  I am also not concerned with any concession which the Secretary of State made in the Hockenjos case.  No similar concession has been made in the present appeal.  Further, that case was argued on the basis of the Directive and European Community Law.  It was not argued under Article 14 – although I entirely accept that the judges in the Court of Appeal, and particularly Scott Baker L.J., expressed them selves in very wide terms.

 

35. I turn to the appeal tribunal’s decision.  It is important to bear in mind that, to quote regulation 20(2) again, this is a case where the essence of the appeal was that the two children spent equal amounts of time in their parents separate households.  The claimant and their mother were equal or 50:50 carers for the children.  That being so, I agree with Miss Demetriou that the particular group to which regard must be had to see whether the provision operates in a way that is disproportionately prejudicial to men is the group of equal, or approximately equal, carers.  It is not the group of all carers.  That, bigger, group will include large numbers of what the Court of Appeal in the Hockenjos case called “minority carers”.  Many of these will be men who have the care of their children for only a small amount of time and where it would not be surprising if child benefit had been awarded to the majority carer.  In my judgment the appeal tribunal erred not only in making a finding about the necessary evidential basis but also in not identifying the correct pool.  If one looks at the totality of ex-wives with children it may be true that child benefit is “overwhelmingly” given to them.  However, that pool is not the right one.  It not only includes former wives who are substantial majority carers for their children but also those whose ex-husbands have little or no contact with their children.

 

36. The pool of equal carers is a particular one.  It is not known what properly compiled statistics will show.  Furtheremore, if such statistics showed a significant balance in favour of one sex rather than the other one would need to go further and try and establish the reasons why.  There might well be objective factors unrelated to discrimination on the grounds of sex.  It will be recalled that the relevant paragraph of Schedule 10 to the Social Security and Contributions Act  1992, is paragraph 5, which provides that in a case such as this the person entitled to child benefit shall be such one of them “as they may jointly elect or, in default of election, as [a decision maker on behalf of Her Majesty’s Revenue and Customs] may in his discretion determine”.  The discretion referred to is a quasi-judicial one and is controlled by judicial review.  Although the break-up of a marriage is usually a stressful and distressing time for the parties there must be a great many cases where agreement about who is to be entitled to the child benefit is reached.  The proportion of such cases, the reasons why agreements were reached and the effects of such agreements are all factors which may legitimately be considered.  Similarly, the manner in which HMRC decision makers exercise the regulatory discretion when agreement cannot be reached has to be considered.

 

37. Mr Laschinger in both his written and his oral submissions stressed the wide experience of the judge who comprised the appeal tribunal.  I entirely accept that she has wide and varied experience.  She is now a member of the Administrative Appeals Chamber of the Upper Tribunal.  She is a wise and popular colleague whose judgment I respect and value.  Nevertheless, I am of the view that in this particular case she both identified the wrong pool and proceeded on the basis of assumption rather than evidence.  My own, more limited, experience is that in relation to the category of equal carers, or approximately equal carers, there has been much movement since the Hockenjos case – encouraged to some extent by the outcome of that case.  Even before the judgments of the Court of Appeal the position was not as monolithic as has been suggested.  For example, the papers contain Richards J’s judicial review decision in R on behalf of Ford –v- Board of Inland Revenue and Sayers [2005] EWHC 1109 (Admin).  In that case Mr Ford and his ex-wife shared responsibility for their two children.  Child benefit for both children was paid not to the children’s mother but to Mr Ford.  In April 2004, his ex-wife made an application for child benefit in respect of the younger child.  A decision maker awarded it to her.  That meant the each parent was entitled to child benefit in respect of one of the children.  Mr Ford challenged the decision in the High Court.  Richards J. held that the decision to award child benefit in respect of one child to the ex-wife was, on the facts, sustainable.  I also note from paragraph 10 of the Hockenjos case that Mr Hockenjos, who was the substantial minority carer for two children, did not claim child benefit until 25 November 1998.  When he did so he was awarded child benefit in respect of the older child apparently from 21 December 1998 – although he lost it again when she ceased full-time secondary education.

 

38. Mr Laschinger refers to the evidence in the Hockenjos case.  This consisted of a detailed statistical report by an economic consultant, Sally Holterman.  See paragraph 14 of the judgments where this report is briefly summarised.  Her report is often referred to but only in the briefest way.  A copy of the full report was not before the appeal tribunal.  As a matter of comment, I have seen many, brief, references to the report but I have never been referred to a copy of the report itself.  Of perhaps more importance I do not know when the data relied upon was collected.  However, the decision against which Mr Hockenjos was appealing was dated 7 January 1998.  There is nothing in the case papers by way of an update or confirmation that the conclusions which the economic consultant reached still hold good.

 

39. I therefore conclude that the claimant has not shown that he forms part of a particular group which suffers disproportionate prejudice as a consequence of indirect discrimination resulting from the application of regulation 20(2) and 20(3).  It follows that I must allow Camden’s appeal and set aside the decision of the appeal tribunal.

 

Justification

40. Since I do not find that indirect discrimination has been established it is not necessary for me to deal with the issue of justification.  Indeed, anything I might say in relation to it cannot form part of the ratio of my decision.  Quite apart from the technical rules of precedence, since I do not find indirect discrimination has been established I do not have to make hard decisions about justification.  Further, if indirect discrimination had been established, the facts which then emerged might have affected one’s view of the justification arguments.  Nevertheless, out of courtesy to the arguments that have been addressed to me, and the information provided by Karen Lesslie in her witness statement, which was before me as a consequence of the directions which the parties agreed between themselves, I shall say a little.  If the claimant had established indirect discrimination I would have found this the most difficult aspect of the case.  Indeed in his oral submissions Mr Laschinger referred to it as “possibly the nub of this case”.  What he said in paragraphs 5.2 and 5.3 of his written submissions gives me particular cause for thought.

“5.2 What requires justification is principally the CB requirement, on the basis that it indirectly discriminates against male HB claimants such as C.  However, it is not by itself a requirement for enjoying HB – C would be “passported” to maximum HB  if he were unemployed and receiving income based JSA.  CB is only a requirement for enjoying family premium and child allowances in the calculation of his Applicable Amount, determining whether he needs HB and if so (characteristics of the home apart) how much.  In the hypothetical JSA case, both he and his ex-wife could enjoy HB – both “passported” to maximum HB if she were on income support.  Both need homes for themselves and for their children in their time spent 50/50 with each parent.

 

5.3 However, the CB requirement becomes crucial because of the rule that only one person can be treated as responsible for a child in any week – regulation 20(3) – and through that treatment enjoy family premium and child allowance.  Meeting the CB requirement under regulation 20(2)(a) – even though all other factors may be equal – determines which parent.  Thus the CB requirement discriminates because it falls to be read with regulation 20(3); and the latter therefore also requires justification as part of a discriminatory nexus.”

He submitted that the rule that a child shall be the responsibility of only one person in any benefit week, and any person other than the one treated as responsible for the child under regulation 20 shall be treated as not so responsible, was at odds with the policy behind the Children Act 1989, and orders made under it.  He went on to criticise in detail the evidence of Karen Leslie.

 

41. There is much force in what he says.  Nevertheless, if I had been required to I would have accepted, with reluctance, that any indirect justification demonstrated could be justified.  It is trite law that the European Court of Human Rights has frequently said that in social security matters the individual states have a wide margin of appreciation.  That proposition was not in dispute before me and I shall not, therefore, quote from any judgments of the Court.  The Hoogendijk case is an example of a case where the Court applied the principle.  When the Court says that states are to be accorded a wide measure of appreciation it does so advisedly.  It is not for the Court to tell states how to construct and operate their social security schemes.  The Court confines its interference to extreme cases where no real justification can be advanced. It appears that it is prepared, as in the Hoogendijk case and in relation to the argument that the Dutch government wished to contain costs, to accept a wide variety of arguments as establishing justification.  It often speaks of individual states being best placed to understand their own societies, the problems of their own societies and the best way to allocate resources.  The reality is, in fact, even starker.  Social security schemes of advanced societies are, despite every effort, horrendously complicated and interlocking.  The court is well aware of this and that to interfere in one respect may have all sorts of consequences which will not be apparent from the arguments being put to it.  Such arguments being focussed on specific issues.  A judgment of the Court which is too wide ranging may cause the state in question to make amendments which, in turn, give rise to further claims of discrimination.  In an extreme case the argument might be that the Court’s own judgment, while of benefit to some, has caused others to be discriminated against.  A judgment that was too wide ranging might bring about amendments which, for most people, were adverse.  A state might decide that scheme in question had become too expensive or too difficult to maintain. There may be political considerations which the Court is neither in a position to evaluate nor would wish to be seen to be trying to do so.  Finally, it is for the relevant state, and not the Court, to meet any extra costs which may arise from the Court’s judgment.  All these factors lead the Court to exercise considerable discretion before interfering.

 

42. Moving from the general to the particular, I have been much struck by Mr Laschinger’s submissions – and not just the ones I have quoted.  However, at the end of the day I would have accepted that justification had been made out had it been relevant to do so.  In my judgment it is justifiable for a state to provide that, in relation to a specified benefit, only one person shall be responsible for a child in any benefit week.  That is a perfectly understandable rule.  There may well be cases where, as in the present case, it causes hardship.  However, that is frequently the case with clear rules.  So far as entitlement to child benefit on the breakdown of a marriage is concerned, the rule is that it is for the parties to reach agreement between themselves.  If the parties cannot reach agreement a decision has to be made.  That decision will depend on the facts and must be made in a proper manner.  It is obvious that, in many contested cases, arriving at a decision will be extremely difficult.

 

Result

43. I allow the appeal and set aside the decision of the appeal tribunal.  That decision related to both HB and CTB.  At the hearing before me Mr Laschinger submitted that in the event of my allowing the appeal I should remit the case to a differently constituted appeal tribunal to consider further statistical evidence.  When it was pointed out that the compiling of such evidence was likely to be beyond the financial resources of not only the claimant but also the Mary Ward Legal Centre his response was that much of the information is within the knowledge of the Department of Work and Pensions with assistance from Camden.  My understanding is that both Miss Demetriou and Mr Scott immediately said that this was not the case.  I see no reason to disbelieve them.  I would be surprised if accurate and meaningful statistics existed in an accessible form.  If they do not exist I do not see why the Secretary of State and Camden should be obliged to set about compiling them.  Even if it was possible to do so, that might prove to be an expensive and time consuming exercise.  In the absence of submissions as to my powers I do not consider that I have any jurisdiction to direct the production of such statistics.

 

24. Further, no one knows what the results might be.  They might support the claimant’s case or they might demolish it totally.  The probability is that the results themselves will be controversial and difficult to interpret.  I would be strongly tempted to remit the matter if all that was required was for the claimant to obtain of a simple piece of evidence, such as a medical report or brief details of fact, which might well support his case.  Indeed, I would probably retain the matter until the evidence was to hand and would then decide what to do.  However, that is not the case.  It is appropriate for me to give my own decision.

 

25. My decision is that the claimant’s appeal against Camden’s decision dated 4 May 2006, refusing to award him HB and CTB is dismissed.  Harsh though it is in the circumstances, he was not entitled to those benefits at that time.

 

 

(Signed) J.P. Powell

Judge – Upper Tribunal

 

Dated: 18^th March 2011