Humphreys v HM Revenue and Customs

Indirect sex discrimination in a social-security scheme is justified under article 14 ECHR where it pursues a legitimate social-policy aim and bears a reasonable relationship of proportionality to that aim. Social policy attracts a wide margin of appreciation. Bright-line rules, cost and administrative complexity may be relevant unless the policy is manifestly without reasonable foundation or the resulting hardship destroys its justification. A single payment of child tax credit to the carer with main responsibility was justified. The serious disadvantage suffered by a minority carer receiving subsistence benefit did not outweigh the interests of the children and majority carers, the avoidance of duplication, and the substantial practical difficulty of introducing split payments.

This was Mr Humphreys’s appeal from Upper Tribunal Judge Edward Jacobs’s decision of 4 February 2009, which determined the Commissioners’ appeal in their favour. An appeal tribunal had held that the child tax credit rules caused unjustified indirect discrimination against men. The appellant, who received income support, cared for his children for about three days each week and was refused child tax credit because their mother was treated as having main responsibility. The central issue was whether the single-payment arrangements under the Tax Credits Act 2002 and Child Tax Credit Regulations 2002 were objectively justified under article 14 ECHR read with article 1 of the First Protocol.

The appeal was dismissed.

1. Article 14 requires objective justification for a difference of treatment. The measure must pursue a legitimate aim and bear a reasonable relationship of proportionality to that aim. In general social-policy measures, national authorities have a wide margin of appreciation and the court will usually respect the policy choice unless it is manifestly without reasonable foundation: Stec v United Kingdom (2006) 43 EHRR 47 and R (RJM) v Secretary of State for Work and Pensions [2008] UKHL 63.
2. In that context, indirect discrimination on grounds of sex does not automatically require more intensive scrutiny. Cost and administrative convenience may contribute to justification. Bright-line rules may be used even though they create hard cases, and the existence of a less restrictive alternative is not an integral part of proportionality under article 14. The court relied on R (Carson) v Secretary of State for Work and Pensions [2006] 1 AC 173, AL (Serbia) v Secretary of State for the Home Department [2008] UKHL 42 and R (Wilson) v Wychavon District Council [2007] EWCA Civ 52.
3. The reasoning in Hockenjos v Secretary of State for Social Security [2004] EWCA Civ 1749 remained relevant to the serious hardship caused to a minority carer receiving subsistence benefit. It did not, however, determine the present case. Hockenjos concerned different statutory provisions, a different benefit and EU-law justification. The CTC arrangements had been considered before the regulations were made and reviewed after Hockenjos. The absence of any child-benefit linkage and the less stark concept of main responsibility were material distinctions.
4. The court balanced the interests of children, majority carers and minority carers, together with the effects on working tax credit and other benefits. A single payment to the person with main responsibility was intended to support the child and avoid duplication. Split payment would require new apportionment rules, system changes and more complex administration, with substantial cost. Those were cogent reasons for maintaining the rule.
5. The disadvantage to minority carers was a matter of real concern, but the rule could not be characterised as unreasonable or manifestly without reasonable foundation. The CTC provisions were therefore objectively justified under article 14.

• Court of Appeal (Civil Division): Dismissed the appeal and upheld the conclusion that the single-payment child tax credit arrangements were objectively justified.
• Upper Tribunal (Administrative Appeals Chamber): On 4 February 2009, determined the Commissioners’ appeal in their favour and held that the provisions were justified.
• Appeal tribunal: Allowed the appellant’s appeal and held that the provisions produced unjustified indirect discrimination against men contrary to article 14 ECHR.