CD v Secretary of State for Work and Pensions

A separated parent who does not have main responsibility for a child under the universal credit scheme cannot include that child in the extended benefit unit for housing-cost purposes. An indirect sex-discrimination claim under article 14 requires evidence of a disproportionate adverse effect on the protected group.

In any event, a rule allocating support for a child to one household is objectively justified. It enables support to be targeted effectively, avoids complex and costly administration, and leaves separated parents to determine who receives the relevant child support. A statutory appeal to the Upper Tribunal cannot determine an Equality Act claim where section 113 of the Equality Act 2010 withholds that jurisdiction.

The appellant father had equal shared care of his son. The child was treated as part of the mother’s benefit unit, as she had main responsibility under regulation 4 of the Universal Credit Regulations 2013. The Secretary of State therefore refused an additional bedroom in the appellant’s housing-costs element.

The First-tier Tribunal dismissed the appeal on 6 April 2023, although it granted permission to appeal on arguments under the Equality Act 2010 and article 14 of the European Convention on Human Rights. The appellant challenged the rule as indirect discrimination against male parents with equal shared care. He later accepted that the existing authorities supported the Secretary of State’s position.

The central issue was whether the one-parent main-responsibility rule was unlawful or unjustified discrimination in relation to universal credit housing costs.

1. Appeal dismissed. The appellant was not responsible for his son for universal credit purposes. Under regulation 4(4) of the Universal Credit Regulations 2013, only one separated parent with whom a child normally lives can be treated as responsible, namely the parent with main responsibility. The child could therefore not be included in the appellant’s extended benefit unit for housing-cost purposes.

2. The Upper Tribunal had no jurisdiction on this statutory appeal to decide the appellant’s claim under the Equality Act 2010. Section 113 confined the available route for such claims. The argument could not therefore found an error of law in the First-tier Tribunal’s decision.

3. The article 14 claim fell within the ambit of A1P1. However, the appellant had not produced reliable evidence establishing a strong prima facie case that regulation 4(4) placed male parents with equal shared care at a disproportionate disadvantage. His statistics did not identify the relevant class of universal-credit claimants or show how housing costs had been awarded by gender. The burden of justification therefore did not arise.

4. In the alternative, any indirect discrimination was justified and not manifestly without reasonable foundation. It was legitimate to direct child-related support to one household, which better equips that household to meet the child’s needs and is simpler and less expensive to administer. There was no clear class of shared-care parents for an exception, and splitting or duplicating bedroom support could increase cost, leave both households underfunded, or favour separated parents over an intact family. Discretionary housing payments under section 69 of the Child Benefit, Pensions and Social Security Act 2000 could also assist with a shortfall.

5. Arguments about the universal-credit child element, child benefit, and work allowance were outside the appeal from the decision of 19 November 2021. In particular, later work-allowance matters could not be determined in that appeal.

• Upper Tribunal (Administrative Appeals Chamber): dismissed the appeal in [2024] UKUT 256 (AAC).
• First-tier Tribunal (Social Entitlement Chamber): on 6 April 2023 dismissed the appellant’s appeal from the Secretary of State’s decision of 19 November 2021, which had refused an additional bedroom in the universal-credit housing-costs calculation. It granted permission to appeal to the Upper Tribunal.