Hockenjos v Secretary of State for Social Security

A rule governing additions to income-based jobseeker’s allowance unlawfully discriminates against men where it makes entitlement depend on receipt of child benefit and excludes a parent who provides substantial shared care. Administrative efficiency and consistency are legitimate considerations, but they do not justify leaving such a carer without subsistence support. The state must establish, with evidence, that an indirectly discriminatory measure pursues a legitimate aim unrelated to sex and is a suitable, necessary and proportionate means of achieving it.

Where the incompatible rule is disapplied, responsibility under the governing legislation does not mean sole or primary responsibility. A parent providing substantial care may qualify for the full weekly additions. The court cannot devise an alternative apportionment scheme which Parliament has not enacted.

The appellant was an unemployed father whose two daughters lived with both parents under a shared residence order. His claim for additions to income-based jobseeker’s allowance was refused in respect of a child for whom the mother received child benefit. Statistical evidence showed that the regulatory link between child benefit and the additions placed men sharing care at a marked disadvantage.

An earlier Court of Appeal decision held that income-based jobseeker’s allowance fell within Council Directive 79/7/EEC and remitted the discrimination issue to a Social Security Commissioner. The Commissioner found the child-benefit link unjustified, but upheld the rules limiting responsibility to one person and generally identifying the person with whom the child usually lived. The father appealed and the Secretary of State cross-appealed.

The central questions were whether the disputed parts of regulation 77 were indirectly discriminatory and objectively justified, and what remedy followed from the direct effect of article 4.

1. Appeal allowed and cross-appeal dismissed. Scott Baker LJ and Ward LJ held that the child-benefit link, the rule treating only one person as responsible and the consequent prohibition on splitting the additions formed an indirectly discriminatory scheme. Arden LJ agreed that the appellant was entitled to relief, although she would generally have regarded a single-payment rule as justified and confined the failure of justification to a carer responsible for at least 43% of the time.

2. The Secretary of State had to show that the discriminatory rule pursued a legitimate social-policy aim unrelated to sex and that the means could reasonably be considered suitable and necessary for attaining that aim. The broad discretion afforded in social policy includes a proportionality assessment. It cannot be exercised so as to frustrate the fundamental principle of equal treatment. Generalised assertions about administrative convenience and cost do not discharge the evidential burden.

3. The accepted aim was the fair and efficient distribution of public funds available to maintain children within a subsistence benefit. The rules performed well in administrative efficiency but poorly in fairness. They could leave a parent providing substantial shared care without resources for the child while that child was in the parent’s household. The Secretary of State had not adequately examined alternatives capable of avoiding or reducing that effect. The discrimination was therefore unjustified.

4. Article 4(1) of Council Directive 79/7/EEC was directly effective. Regulation 77 could not be applied to the appellant insofar as it infringed that right. It remained valid in cases where it caused no unlawful discrimination.

5. Once regulation 77 was disapplied, section 35 of the Jobseeker’s Act 1995 governed responsibility. It did not require sole or primary responsibility. The appellant’s daughters were members of his household for whom he was responsible, so regulation 83 entitled him to the relevant weekly personal allowances and family premium. The statutory scheme supplied no basis for dividing those weekly amounts.

6. The Apportionment Act 1870 did not require time apportionment. The appellant was entitled to the full additions. The matter was remitted to the Commissioner for calculation if the amount could not be agreed.

1. Court of Appeal (Civil Division): By [2004] EWCA Civ 1749, allowed the claimant’s appeal, dismissed the Secretary of State’s cross-appeal and remitted the calculation of entitlement if it could not be agreed.
2. Social Security Commissioner: Mr Commissioner Mesher held that the child-benefit link was discriminatory and unjustified, but upheld the single-person and usual-residence aspects of regulation 77. He directed that entitlement be calculated on that basis.
3. Court of Appeal (earlier appeal): Held that income-based jobseeker’s allowance fell within Council Directive 79/7/EEC and remitted the indirect-discrimination question to a Commissioner. No citation is stated in the judgment.
4. Social Security Commissioner and Social Security Tribunal: Earlier appeals from the refusal of child additions were dismissed.