Secretary of State for Work & Pensions v Bobezes

For indirect discrimination on grounds of nationality, a facially neutral rule may be indirectly discriminatory where it is intrinsically liable to affect migrant workers more than national workers and risks placing them at a particular disadvantage. Statistical proof of actual impact is unnecessary where that conclusion follows from the provision and the ordinary circumstances of migrant workers. The rule remains subject to objective justification and proportionality. In assessing a child’s prolonged absence from the United Kingdom, the court may consider migrant workers’ continuing family ties in their country of origin. Hypothetical legal questions with no consequences for the parties should not be decided merely to provide guidance for other cases.

Mr Bobezes, a Portuguese national with retained worker status, received income support including an allowance for his step-daughter. The Secretary of State decided that the allowance was overpaid because she had spent periods with her grandmother in Portugal exceeding four weeks, and sought recovery under the Social Security Administration Act 1992.

The Appeal Tribunal revised the decision by directing that entitlement should cease only during periods exceeding four weeks abroad. The Social Security Commissioner set that decision aside, holding that Mr Bobezes could argue indirect discrimination under Article 7(2) of Regulation 1612/68. The Secretary of State appealed on the applicable Community regulation and related authorities. Mr Bobezes cross-appealed against the suggestion that discrimination required statistical proof. The central issue was whether the four-week absence rule was inherently liable to disadvantage migrant workers without statistical evidence.

1. The court made no order on the grounds raised in the Secretary of State’s appeal. Both parties ultimately accepted that the claim could be addressed under Article 3 of Regulation 1408/71. The court therefore declined to decide the hypothetical relationship between Regulations 1408/71 and 1612/68, or the alternative questions concerning Perry v Chief Adjudication Officer and Treaty Articles 12, 17 and 39. Such questions had no consequences for the parties and might be relied on in materially different cases without the necessary legal and policy context.

2. The cross-appeal was allowed. Applying the approach in O’Flynn v Adjudication Officer [1996] ECR 1-2617, Pinna v Caisee d’Allocations Familiales de la Savoie [1986] ECR 1 and Biehl v Luxemburg [1990] ECR I-1779, the court held that statistical analysis of actual incidence is unnecessary where a provision is intrinsically liable to affect migrant workers more than national workers and creates a consequent risk of particular disadvantage. The assessment may be made from the nature of the provision, its likely effect, and the ordinary circumstances of migrant workers.

3. Regulation 16(5) of the Income Support (General) Regulations 1987, which removed the child from the claimant’s household for benefit purposes after more than four weeks’ absence from Great Britain, was intrinsically liable to affect migrant workers more than British nationals. Migrant workers could be expected to retain significant family connections in their countries of origin, making prolonged stays by their children with relatives abroad more likely. The comparison was with British families generally, notwithstanding that some British subjects also retained overseas connections.

4. The finding of inherent liability and risk did not finally determine entitlement. The Tribunal was to decide whether the discrimination could be objectively justified and was proportionate to the rule’s aim. The matter was accordingly to proceed before the Tribunal, with costs to be addressed by written submissions.

1. Court of Appeal (Civil Division): In [2005] EWCA Civ 111, made no order on the grounds raised in the appeal and allowed the cross-appeal.
2. Social Security Commissioner: Set aside the Appeal Tribunal’s decision and directed consideration of whether the claimant could establish indirect discrimination and whether it could be justified.
3. Appeal Tribunal: Revised the Secretary of State’s decision, directing that overpayment and recovery should arise only for periods when the child’s absence from Great Britain exceeded four weeks.