Hockenjos v Secretary of State for Social Security

Income-based jobseeker’s allowance may fall within Directive 79/7/EEC even though it is means-tested and incorporates features of income support. The decisive question is whether the statutory scheme is directly and effectively linked to protection against unemployment. A single scheme under the Jobseekers Act 1995 may contain both contributory and means-tested elements. Whether linking a child-related addition to child benefit causes indirect sex discrimination requires assessment against the facts. The appeal was allowed and the discrimination issue was remitted.

The claimant, the father of two children, shared their residence with their mother but did not receive child benefit. His claim for income-based jobseeker’s allowance therefore excluded the additional amount payable for children. An adjudication officer’s decision was upheld by the Social Security Appeal Tribunal and by Mr Commissioner Goodman.

On appeal, the claimant argued that income-based jobseeker’s allowance was within Directive 79/7/EEC and that linking the additional amount to child benefit was discriminatory. The central issues were whether the allowance protected against the risk of unemployment and whether the linkage contravened the Directive’s equal-treatment requirement.

Lord Justice Aldous delivered the judgment. Lord Justices Tuckey and Kay agreed.

1. Appeal allowed. The appeal from the decision of Mr Commissioner Goodman was allowed, with the discrimination issue remitted to a Social Security Commissioner.
2. Article 3. The relevant question under Directive 79/7/EEC was whether income-based jobseeker’s allowance was directly and effectively linked to protection against the risk of unemployment. The fact that contribution-based and income-based allowances were contained in the same statute was not itself decisive, but the statutory scheme had to be considered as a whole.
3. Nature of the scheme. Part I of the Jobseekers Act 1995, read with the Jobseeker’s Allowance Regulations 1996, created one allowance known as jobseeker’s allowance. Its common conditions, purpose and operation were directed to unemployed persons and provided the necessary link with unemployment. Means-testing, taxation funding and the incorporation of features of income support did not sever that link. The reasoning in Jackson v Chief Adjudication Officer [1993] QB 367 did not make income-based jobseeker’s allowance outside the Directive.
4. Discrimination. It was arguable that linking the additional amount under regulation 83(b) to child benefit under the Social Security Contributions and Benefits Act 1992 could disadvantage men after separation. The court expressed no concluded view because the issue required factual findings and legal submissions against that factual background.
5. Order. The appeal was allowed with costs. The case was remitted to the Social Security Commissioner. Detailed assessment was ordered and permission to appeal to the House of Lords was refused.

• Court of Appeal: allowed the appeal, remitted the discrimination issue to a Social Security Commissioner and awarded costs.
• Social Security Commissioners: Mr Commissioner M. J. Goodman dismissed the claimant’s appeal from the Social Security Appeal Tribunal.
• Social Security Appeal Tribunal: upheld the adjudication officer’s decision that the claimant was not entitled to the additional child-related amount.