Hockenjos v Secretary of State for Social Security

The State provides financial relief against unemployment. It is called jobseeker’s allowance (“JSA”). There are two kinds; income-based and contribution-based. This appeal is concerned with income-based JSA. There is a supplement where the recipient is responsible for a child or children but this is linked to receipt of child benefit. In shared care cases, of which this is one, the child benefit usually goes to the mother. Mr Hockenjos, the appellant, complains that the Jobseeker’s Allowance Regulations 1996 (“the JSA Regulations”) violate the prohibition against direct or indirect discrimination on the basis of sex in relation to statutory schemes which provide protection against unemployment as laid down in Article 4 of EU Council Directive 79/7/EEC (“the Directive”). He seeks a remedy.

The appellant appeals against a decision of Mr Commissioner Mesher dated 13 January 2003. Permission to appeal was granted by the commissioner because the case raises important issues of principle as to the treatment by the benefit system of shared care arrangements. Mummery L.J later gave the respondent permission to cross appeal and argue that the commissioner’s decision should be upheld on additional grounds.

The appellant is the father of two children, Heidi who was born on 23 October 1982 and Alisha who was born on 14 February 1990. He separated from his wife and a joint residence order was made by the Judge Ryland on 6 October 1997 dividing their care between the two of them with the result that the children resided with each of them for different, but roughly equal, parts of each week. The relevant details of the order are as follows:

“1.

The children Heidi Maria Hockenjos and Alisha Jade Ellen Hockenjos shall reside with the mother Caroline Hockenjos and the father Eugen Hockenjos.

2.

The children shall reside with the mother at the following times:

During school term times

Heidi: Thursday – Monday

Alisha: Wednesday – Monday

3.

The children shall reside with the father at the following times:

During school term times

Heidi: Monday – Thursday

Alisha: Monday – Wednesday

4.

Every fourth week the days shall be changed so that Heidi resides with her father from Sunday at 11 am until Wednesday, and Alisha resides with her father from Sunday at 11am until Tuesday. In this respect responsibility for transportation of the children shall be divided between the parents equally.

5.

All of the school holidays shall be divided between the parents equally.”

It can be seen, therefore, that the provisions of the order went to some lengths to ensure that the care of the two children was shared broadly equally between the mother and the father. Such orders were almost unheard of twenty or more years ago but society has moved on and there is an increasing awareness of the father’s role in the care of children. There is in my view no longer on the face of it any reason, if there ever was, why fathers who are parties to such arrangements should be placed at a financial disadvantage by the social security legislation. Arrangements for the shared care of children, if they lead to harmony between separated parents, should be encouraged rather than discouraged.

On 16 December 1997 the appellant applied for JSA including an additional amount in respect of the children. The adjudication officer decided on 7 January 1998 that he was entitled to income-based JSA but that the amount payable should not include any additional amount in respect of the children. The reason for this was that he was not in receipt of child benefit, which was being paid to the mother, and was therefore not to be treated as responsible for them. The appellant has continued to be entitled to JSA ever since he made his claim on 16 December 1997.

He appealed unsuccessfully to a Social Security Tribunal on 11 August 1998 and again to Mr Commissioner Goodman who dismissed his appeal on 2 May 2000. There was a further appeal to the Court of Appeal. It held on 2 May 2001 that income-based JSA was directly and effectively linked to the protection provided against the risk of unemployment and that therefore it fell within the Directive. The question whether the disputed provisions of the JSA Regulations were indirectly discriminatory on the grounds of sex contrary to the Directive was remitted to a social security commissioner.

The matter was in due course heard by Mr Commissioner Mesher. Before him it was accepted by the Secretary of State that the disputed provisions had a disparately adverse impact upon men. The commissioner held, contrary to the Secretary of State’s submission, that regulation 77 of the JSA Regulations was not objectively justifiable in so far as it linked entitlement to child premium to receipt of child benefit but held, contrary to the appellant’s submission, that the regulation was not indirectly discriminatory and/or was objectively justifiable in so far as it provided (in regulation 77(5)) that only one person could be eligible for the premium in respect of any child in any week and (in regulation 77(3)) that, in the absence of a claim for child benefit, the person entitled to the premium should be the person with whom the child usually lives. The commissioner decided that the appellant’s claim should be determined in accordance with that ruling.

The appellant’s argument was and is that he has been discriminated against contrary to Article 4 of the Directive because it is discriminatory to link entitlement to the additional amount of JSA to child benefit. Child benefit is a payment made to the person responsible for the child. It is not means tested and the way in which it operates in shared care cases is such that more women than men are entitled to receive it.

The Directive does not apply to child benefit as such because it is not paid to provide protection against any of the risks set out in Article 3. The issues in the present case arise because the child benefit rules are used as the vehicle for determining whether an applicant for JSA is entitled to an additional sum for dependent children.

The appellant did not claim child benefit for his daughters until 25 November 1998. He was then awarded child benefit in respect of Heidi, apparently from 21 December 1998. His JSA was reviewed to give him a personal allowance for Heidi and, presumably, also the family premium. That personal allowance appears to have continued to be paid until Heidi’s exclusion from child benefit when she ceased full time secondary education.

Mr Commissioner Mesher decided that the appellant’s entitlement to JSA from 16 December 1997 to 7 January 1998 was to be calculated with the inclusion of the family premium and of a personal allowance for Heidi, but not for Alisha, in his applicable amounts. This was on the basis that during that period the evidence was that Heidi usually lived with the appellant and therefore he was to be treated as responsible for her under Regulation 77 of the JSA Regulations. On the other hand Alisha usually lived with her mother and therefore not with the appellant.

The appellant’s entitlement to JSA from 8 January 1998 onwards was to be calculated by the Secretary of State on the basis of the principles of law and findings of fact set out in the commissioner’s decision, taking account of any changes in the factual circumstances as agreed with the appellant and his representatives. In default of agreement the matter was to be returned to him or another commissioner for a decision.

The basis of the appellant’s claim is that he has been indirectly discriminated against on the ground of sex. The Secretary of State, who is the respondent to this appeal, accepts that there has been indirect discrimination but claims that it can be objectively justified. There has therefore been no violation of the Directive and accordingly the appellant is not entitled to any remedy.

A detailed statistical report by an economic consultant, Sally Holtermann, was put before the commissioner. This report showed that 92% of men who shared the care of their children for at least 104 nights a year could not obtain child additions to income-based JSA because they were not in receipt of child benefit and that 8% of women who similarly shared care could not obtain the additions for the same reason.

Albeit the Secretary of State had some doubts about the pool chosen for comparison, he conceded before the commissioner that there was:

“A statistical discrimination in favour of women in respect of the working of the rule of entitlement to child additions to income-based JSA. The Secretary of State therefore does not challenge the statistics in the report and seeks to defend the case on the grounds of objective justification alone.”

The case proceeded before the commissioner therefore on the basis of whether the Secretary of State could show objective justification for the discrimination. The commissioner’s conclusion was that he was quite unable to find that the Secretary of State had shown that the discrimination was objectively justified by any of the arguments put forward, and that that was so adopting whatever interpretation of the Community law test was most favourable to the Secretary of State.

Article 4.1 of The Directive provides:

“The principle of equal treatment means that there shall be no discrimination whatsoever on ground of sex either directly, or indirectly by reference in particular to marital or family status, in particular as concerns:

-

the scope of the schemes and the conditions of access thereto;

-

the obligation to contribute and the calculation of contributions;

-

the calculation of benefits including increases due in respect of a spouse and for dependants and the conditions governing the duration and retention of entitlement to benefits.

And 4.2

“The principle of equal treatment shall be without prejudice to the provisions relating to the protection of women on the grounds of maternity.”

In order to appreciate the context of Article 4 it is desirable to recite Articles 1, 2 and 3. These provide:

“Article 1

The purpose of this Directive is the progressive implementation, in the field of social security and other elements of social protection provided for in Article 3, of the principle of equal treatment for men and women in matters of social security, hereinafter referred to as “the principle of equal treatment”.

Article 2

This Directive shall apply to the working population – including self-employed persons, workers and self-employed persons whose activity is interrupted by illness, accident or involuntary unemployment and persons seeking employment – and to retired or invalid workers and self-employed persons.

Article 3.1

This Directive shall apply to:

(a)

statutory schemes which provide protection against the following risks;

- sickness,

- invalidity,

- old age,

- accidents at work and occupational diseases,

- unemployment;

(b)

social assistance, in so far as it is intended to supplement or replace the schemes referred to in (a).”

It is unnecessary to recite paragraphs 2 and 3 of this Article.

In summary, the problem in this case arises because whether or not a party to a shared care arrangement who is entitled to JSA is also entitled to the supplement for any dependent children depends on whether he or she is the recipient of child benefit for that child. In practice where there is a shared care arrangement it is almost invariably the mother that receives the child benefit. Hence the conclusion that the legislation under consideration is discriminatory against men.

The Jobseeker’s Act 1995 (“the 1995 Act”) introduced JSA as the successor to unemployment benefit and in part to income support. This appeal, as I have said, is concerned with income-based JSA. Section 1(1) provides that:

“An allowance, to be known as a jobseeker’s allowance, shall be payable in accordance with the provisions of this Act.”

Section 1(2) sets out the criteria for entitlement e.g. that the claimant is available for employment, is actively seeking work, not receiving education and is under pensionable age.

The relevant regulations are the JSA Regulations. Regulation 83(b) provides for an additional applicable amount for a claimant “….in respect of any child or young person who is a member of his family…”. Regulation 83(d) provides for a family premium. ‘Family’ is defined in section 35(1) of the 1995 Act. It includes “….a person who is not a member of a married or unmarried couple and a member of the same household for whom that person is responsible and who is a child…”.

I turn next to the Social Security Contributions and Benefits Act 1992 (“the 1992 Act”). By section 141:

“A person who is responsible for one or more children in any week shall be entitled, subject to the provisions of this part of this Act, to a benefit (to be known as “child benefit”) for that week in respect of the child or each of the children for whom he is responsible.”

A “person who is responsible for a child” is defined in section 143. It covers both situations where the child is living with the person (section 143(1)(a)) and situations where the person is contributing to the cost of providing for the child at a weekly rate which is not less than the weekly rate of child benefit payable in respect of the child for that week (section 143(1)(b)). Sub-sections (2)(3) and (4) provide for a person to be treated as having a child living with him or continuing to live with him notwithstanding absences. Broadly, the “living with” condition can be satisfied if the child is carrying on a settled course of daily living with the person for some part of the week but not by mere transitory presence.

There are many cases in which more than one person meets the condition of being responsible for the child. Section 144(3) provides that in such cases the person entitled to child benefit is decided in accordance with the provisions of Schedule 10. Schedule 10 is headed “Priority between persons entitled to child benefit.” Paragraph 1 provides:

“(1)

Subject to sub-paragraph (2) below, as between a person claiming child benefit in respect of a child for any week and a person to whom child benefit in respect of that child for that week has already been awarded when the claim is made, the latter shall be entitled.

(2)

Sub-paragraph (1) above shall not confer any priority where the week to which the claim relates is later than the third week following that in which the claim is made.”

Under paragraph 2 a person qualifying by virtue of the “living with” test under section 141(1)(a) has priority over a person qualifying under the “contributing to the cost” test under section 143(1)(b).

As the commissioner pointed out there was no competing claim for child benefit for Heidi and Alisha until 25 November 1998. Up until that point the mother was entitled to child benefit because she qualified under section 143(1)(a) of the 1992 Act. When the completing child benefit claim was made by the appellant none of paragraphs 1 to 4 of schedule 10 would have disposed of the issue of entitlement and, as there was no joint election, the Secretary of State must have exercised his discretion under paragraph 5 to grant entitlement to the appellant in respect of Heidi and therefore have removed entitlement from the mother.

The first main issue in the appeal is whether the Secretary of State can justify the discriminatory effect of the legislation against those in the shoes of the appellant who share the care of children. The Secretary of State relied on two witness statements. The first was of that of Mr Binns and the second that of Mr Sprawson, both made in April 2002. Mr Sprawson’s statement had been prepared for the Administrative Court in another case. Mr Binns is a civil servant in the Department of Work and Pensions. He manages legislative and implementation requirements for income-related social security benefits.

Mr Binns pointed out that JSA and income support are income related benefits designed to provide financial help for those whose income, from all sources, is below a level approved each year by Parliament. Personal allowances and premiums, he said, are at the heart of the system. Families with children receive higher rates of benefit than single people or couples without children. This is achieved by means of the family premium and additional personal allowances in respect of each child for whom the individual is responsible. A person is treated as being responsible for a child if he is in receipt of child benefit for that child. Where no one is receiving child benefit and only one claim for that benefit has been made, the person who had made the claim is treated as responsible. Where no claim for child benefit has been made then the person with whom the child lives is treated as responsible. In most cases the situation is that entitlement to the family premiums and child addition in JSA and income support is determined on the basis of the person who is in receipt of child benefit.

The child benefit link, he said, ensures consistency in the decision making process and removes the need for JSA and income support decision makers to rely purely on a claimant’s uncorroborated evidence when seeking to establish parental responsibility. There would otherwise be obvious problems when two parents put forward conflicting claims of responsibility. The link to child benefit provides a clearly defined route, which works well in the vast majority of cases. Once there is evidence of receipt of child benefit, the claim does not have to be investigated further to determine who has responsibility for a child. The system is cost effective and straightforward to administer. Any dispute about who should receive child benefit when competing claims are made is determined by a decision maker in the child benefit centre.

The position was different prior to 4 October 1993. Then regulations governing income support specified that a person should be treated as responsible for a child if he had primary responsibility. A decision maker was required to establish this, which could be difficult as it involved a careful evaluation of the facts. Where the question could not be determined from the information given, a decision was made in favour of the person in receipt of child benefit. This caused difficulties and resulted in inconsistencies in the decision making process. In October 1993 the regulations changed for income support, making receipt of child benefit the first consideration in determining parental responsibility. In 1996 JSA followed suit.

It was Mr Binns’ evidence that, absent the link to child benefit, there could be operational difficulties. He gave an example of a child moving from living with one parent to living with the other. The child benefit rules allow the first parent to retain child benefit for three weeks following the move. When both parents are in receipt of income-support/JSA the decision maker, in taking account of the change of circumstances, would have to consider awarding additional benefit in respect of the child to the second parent if it was accepted that parental responsibility had changed. The first parent, who retains entitlement to child benefit for the three week period would lose the child dependency addition to their income-support/JSA. However, as there is no provision to disregard child benefit the decision maker would reduce the first parent’s income-support/JSA by the amount of the child benefit received whilst at the same time removing a child dependency allowance. Not to take account of child benefit received by the first parent and simultaneously award a child dependency allowance to the second parent would involve a loss to public funds.

Mr Binns makes the point that under the present linking rule there are circumstances where one parent in a shared care arrangement appears to be favoured over the other. But, he says, the reality is that the regulations specify that only one additional sum is payable in respect of each child in any given week. It would be inequitable, and an improper use of limited public funds, to provide the additional amounts to two people in respect of the same child when they cannot agree which of them is responsible for the child.

He says that the family premium and additional personal allowance in respect of a child are intended to assist in the support of the child and that it is assumed that whichever parent receives these sums will use them for that purpose. Whatever system is used a decision would have to be made on who is responsible for the child. Any alternative system would inevitably lead to competing claims for these additional amounts. Mr Binns justifies the present system as administratively convenient, cost effective and providing for consistent decision-making. He is undoubtedly right about this but it is a rough and ready one and while it produces a fair result in the majority of cases there is a significant minority in which it does not. In this minority of ‘shared care’ cases the family provision/personal allowance, or the appropriate part of it, is not targeted at the destination where it is required – usually at the father’s expense.

Mr Sprawson’s evidence was prepared for the case of Barber v Secretary of State for the Work and Pensions [2002] EWHC 1915 (Admin). That case was concerned with child benefit and not with JSA. Mr and Mrs Barber had a shared care arrangement. Mrs Barber would not agree to share the child benefit and the Secretary of State refused to make a direction to that effect. Sir Richard Tucker refused to grant judicial review of that decision. Mr Barber’s argument had been primarily directed to Article 14 of the European Convention on Human Rights.

As the Commissioner pointed out, justification is a matter of Community law. It is necessary to look at the authorities. A convenient starting point for present purposes is Nolte v Landesversicherungsanstalt Hannover C-317/93 [1995] 1– 4625. The court there held that the exclusion of persons in minor employment from compulsory insurance for social security purposes was justified by the German Government’s policy aim of fostering the existence and supply of such employment, for which there was a social demand. It said at paragraph 28:

“As the court has consistently held, Article 4(1) of the Directive precludes the application of a national measure which, although formulated in neutral terms, works to the disadvantage of far more women than men, unless that measure is based on objective factors unrelated to any discrimination on grounds of sex. That is the case where the measures chosen reflect a legitimate social policy aim of the Member State whose legislation is at issue, are appropriate to achieve that aim and are necessary in order to do so (De Weerd, née Roks and others, C-343/92 [1994] ECR 1-571, paragraphs 33 and 34).”

It continued:

“33.

The court observes that, in the current state of Community law, social policy is a matter for the Member States (see Commission v Belgium, C-229/89 [1991] ECR 1-2205, paragraph 22). Consequently, it is for the Member States to choose the measures capable of achieving the aim of their social and employment policy. In exercising that competence, the Member States have a broad margin of discretion.

34.

It should be noted that the social and employment policy aim relied on by the German government is objectively unrelated to any discrimination on grounds of sex and that, in exercising its competence, the national legislature was reasonably entitled to consider that the legislation in question was necessary in order to achieve that aim”.

So the question is whether the measures under scrutiny reflect a legitimate social policy aim of the United Kingdom and are both appropriate and necessary to achieve that aim. In choosing the measures to achieve that aim the Member State, in this case the United Kingdom, has a broad margin of discretion.

The next case to which it is necessary to refer is R v Secretary of State for Employment ex parte Seymour-Smith and Perez, C-167/97 [1999] ECR 1-623. That case involved a reference by the House of Lords for a preliminary ruling on certain questions relating to Article 119 of the Treaty of Rome (the principle that men and women should receive equal pay for equal work). The questions included whether the requirement of two years’ continuous employment in order to qualify to bring an unfair dismissal claim fell within the scope of Article 119 or Directive 76/207, whether it entailed indirect discriminatory treatment of women in comparison with men, and if so under what circumstances it could be objectively justified. The court said:

“66.

By its fifth question the national court seeks to ascertain the legal criteria for establishing the objective justification, for the purposes of indirect discrimination under Article 119 of the Treaty, of a measure adopted by a Member State in pursuance of its social policy.

67.

In that respect, the first point to note is that it is ultimately for the national court, which has sole jurisdiction to assess the facts and interpret the national legislation, to determine whether and to what extent a legislative provision, which, though applying independently of the sex of the worker, actually affects a considerable higher percentage of women than men, is justified by objective reasons unrelated to any discrimination on grounds of sex (Case 171/88 Rinner-Kühn [1989] ECR 2743, paragraph 15).”

The Court continued:

“69 It is settled case-law that if a Member State is able to show that the measures chosen reflect a necessary aim of its social policy and are suitable and necessary for achieving that aim, the mere fact that the legislative provision affects far more women than men at work cannot be regarded as a breach of Article 119 of the Treaty (see, in particular, Case C-444/93 Megner and Scheffel v Innungskrankenkasse Vorderpfalz [1995] ECR 1-4741, paragraph 24, and Freers and Speckmann, cited above, paragraph 28).

70 In this case the United Kingdom Government contends that the risk that the exposure of employers to proceedings for unfair dismissal brought by employees who had only fairly recently been engaged is a deterrent to recruitment, so that extension of the qualifying period for protection against dismissal will stimulate recruitment.

71 It cannot be disputed that the encouragement of recruitment constitutes a legitimate aim of social policy.

72 It must also be ascertained, in the light of all the relevant factors and taking into account the possibility of achieving the social policy aim in question by other means, whether such a aim appears to be unrelated to any discrimination based on sex and whether the disputed rule, as a means to its achievement, is capable of advancing that aim.

73 In that connection, the United Kingdom Government maintains that a Member State should merely have to show that it was reasonably entitled to consider that the measure would advance the social policy aim. It relies to that end on Case C-317/93 Nolte [1995] ECR 1-4625.

74 It is true that in paragraph 33 of Nolte case the court observed that, in choosing the measures capable of achieving the aims of social and employment policy, the Member States have a broad margin of discretion.

75 However, although social policy is essentially a matter for the Member States under Community law as it stands, the fact remains that the broad margin of discretion available to the Member States in that connection cannot have the effect of frustrating the implementation of a fundamental principle of Community law such as that of equal pay for men and women.

76 Mere generalisations concerning the capacity of a specific measure to encourage recruitment are not enough to show that the aim of the disputed rule is unrelated to any discrimination based on sex nor to provide evidence on the basis of which it could reasonably be considered that the means chosen were suitable for achieving that aim.”

The court concluded that if a considerably smaller percentage of women than men was capable of fulfilling the two year employment requirement imposed by the disputed rule, it was for the Member State, as the author of the allegedly discriminatory rule, to show that the rule reflected a legitimate aim of its social policy, that that aim was unrelated to any discrimination based on sex, and that it could reasonably consider that the means chosen were suitable for attaining that aim.

Seymour-Smith returned to the House of Lords [2000] 1 All ER 857. Lord Nicholls said at 873A:

“The burden placed on the government in this type of case is not as heavy as previously thought. Governments must be able to govern. They adopt general policies, and implement measures to carry out their policies. Governments must be able to take into account a wide range of social, economic and political factors. The Court of Justice has recognised these practical considerations. If their aim is legitimate, governments have a discretion when choosing the method to achieve their aim. National courts, acting with hindsight, are not to impose an impracticable burden on governments which are proceeding in good faith. Generalised assumptions, lacking any factual foundation, are not good enough. But governments are to be afforded a broad measure of discretion. The onus is on the Member State to show (1) that the allegedly discriminatory rule reflects a legitimate aim of its social policy, (2) that this aim is unrelated to any discrimination based on sex, and (3) that the Member State could reasonably consider that the means chosen were suitable for attaining that aim.”

In the concluding words of this paragraph Lord Nicholls is doing no more than reciting the answer by the European Court in paragraph 77 to the fifth question asked of it.

The final case to which it is necessary to refer in this regard is Jorgensen v Foreningen Speciallaeger and another C- 226/98 [2000] ECR 1-2447 where the argument was that budgetary considerations could not justify sex discrimination. The Court held that budgetary considerations could not in themselves justify discrimination on the grounds of sex. However, measures intended to ensure sound management of public expenditure on specialised medical care and to guarantee people’s access to such care might be justified if they met a legitimate objective of social policy, were appropriate to obtain that objective and were necessary to that end. The Court said at paragraph 41:

“As Community law stands at present, social policy is a matter for the Member States, which enjoy a reasonable margin of discretion as regards the nature of social protection measures and the detailed arrangements for their implementation (Case C-229/89 Commission v Belgium [1991] ECR 1-2205, paragraph 22, and C-226/91 Molenbroek [1992] ECR 1-5943, paragraph 15). If they meet a legitimate aim of social policy, are suitable and requisite for attaining that end and are therefore justified by reasons unrelated to discrimination on grounds of sex, such measures cannot be regarded as being contrary to the principle of equal treatment (Commission v Belgium, cited above, paragraphs 19 and 26, and Molenbroek cited above, paragraphs 13 and 19).”

It is to be noted that the words ‘necessary’ and ‘requisite’ do not appear in the passage that I have cited from the speech of Lord Nicholls in Seymour-Smith in which he summarises the approach to be followed in justifying discrimination contrary to Article 4. And yet it is a recurrent feature of the European jurisprudence that the measures chosen should be ‘necessary’ to achieve the chosen aim. However, I do not think Lord Nicholls was doing more than expressing in general terms the approach to be adopted. Nor do I think the word ‘necessary’ as used by the European Court implies any more than that the means chosen is conducive to the aim in question; it does not have to be the only possible means.

Mr Paines Q.C, who has appeared for the Secretary of State, adopts Lord Nicholls’ three stage test and submits that, unless there was an alternative means of achieving the policy aim that was so obviously better that no reasonable Secretary of State could have avoided choosing it, he must succeed. He referred us to a passage in the judgment of the Court in Rinner-Kühn at paragraph 14:

“It should, however, be stated that those considerations, in so far as they are only generalisations about certain categories of workers, do not enable criteria which are both objective and unrelated to any discrimination on grounds of sex to be identified. However, if the Member State can show that the means chosen meet a necessary aim of its social policy and that they are suitable and requisite for attaining that aim, the mere fact the provision affects a much greater number of female workers than male workers cannot be regarded as constituting an infringement of Article 119.”

Mr Drabble Q.C, who has appeared before us for the appellant as he did before the Commissioner, rejects this approach.

It seems to me that the justifiable criticism of Mr Paines’ gloss on the third stage of Lord Nicholls test is that it focuses solely on the means of achieving the policy aim and does not allow for any balancing consideration to be given to the need not to frustrate a fundamental principle of Community law, namely the equal treatment of men and women under Article 4. As the Court said in Nolte at paragraph 75 “…the fact remains that the broad margin of discretion available to Member States…cannot have the affect of frustrating the implementation of a fundamental principle of community law.”

In my judgment there is an issue of proportionality to be considered. The Secretary of State cannot ignore the discriminative extent of the measure he is seeking to justify. It is necessary to look at both fairness to recipients of the benefit, such as the appellant, and the interests of the State in running an efficient benefit system. It is submitted that the problem highlighted by this case is not one that operates at the margin in a few unfortunate but untypical cases; it goes to the very heart of the legislation. Where two parents share the care of a child or children only one, and statistics show it is usually the mother, can receive the child supplement in relation to JSA and income-support.

I agree with Mr Drabble’s submission that there is a point at which it becomes no longer possible or appropriate to defer to the Member State’s broad margin of appreciation on social policy. That point is reached when the effect of doing so would be to frustrate the implementation of a fundamental principle of community law. It is therefore necessary to feed into the question of proportionality the importance of the principle of equality. In doing so the Secretary of State, and subsequently the court, is doing no more than taking account of a fundamental concept of community law. The starting point is that the problem highlighted is sufficiently great that it strikes at a principle of Community law. That that is so in this case there is no doubt.

Accordingly, in my judgment the position is this. The law is set out in the European Court’s judgment in Seymour-Smith. The Secretary of State must first show that the discriminatory rule reflects a legitimate aim of the United Kingdom’s social policy. Next he must show that the aim is unrelated to any discrimination based on sex and finally that he could reasonably consider that the means chosen are suitable for attaining that aim. Built into this final question is the balance between holding fast to the Community’s fundamental principles on the one hand and the Member State’s freedom to achieve its own social policy on the other.

Mr Drabble submits that the Secretary of State fails on this third question and has not discharged the burden of justifying the discriminatory rule. In this regard it seems to me that the first step is to identify the policy aim that the disputed rule is said to reflect. Mr Drabble identifies this as follows:

“The aim is one of establishing a fair and efficient distribution of the public funds available to maintain children within the confines of a subsistence benefit such as JSA.”

In the end Mr Paines did not quarrel with this formulation, which in my judgment is as accurate a way of putting it as any. Mr Paines submits that having identified the aim, the court should examine the means chosen to achieve that aim and than ask if the Secretary of State was reasonably entitled to regard the measures as a suitable and requisite means of achieving that aim. Are the alternatives so obviously better that the Secretary of State was not reasonably entitled to follow the course that he took? Whilst the situation has to be viewed objectively, the difficulty I find with this is that there is no evidence that the Secretary of State, or any one on his behalf, ever applied his mind to the need to identify the aim to be established and then balance it against the requirements of Article 4 of the Directive. At no relevant stage was the question asked how responsibility for the care of children could be catered for within the JSA payment whilst at the same time not contravening the anti- discrimination provision in Article 4. This is not, in my judgment, necessarily an overriding difficulty, because it would be possible to justify the position ex post facto provided there is the appropriate evidence. The court might, for example, be persuaded that there simply is no viable alternative that does not offend Community law. Where, however, there may be alternatives that do not offend a fundamental principle of Community law but the Secretary of State has simply not explored them I cannot accept that he has discharged the burden of establishing justification that is upon him. It is not up to the appellant to show that there is an obviously better alternative. I have in mind the observations of Lord Nicholls in Seymour-Smith at 873C, picking up what the European Court had earlier said, that generalised assumptions lacking factual foundation are insufficient.

At paragraph 72 of its judgment in Seymour-Smith the European Court referred not only to the need to consider the possibility of achieving the aim by other means but also whether the disputed provisions were capable of advancing the aim. On this latter point it seems to me that while the link to child benefit may score well on the efficiency aspect of the aim it does not score well on fairness.

At a late stage in the hearing, in the course of his reply, Mr Paines drew the Court’s attention to the fact that there had recently been a policy review and that the present arrangements are being replaced by child tax credits administered by the Inland Revenue and payable to those on benefit with low incomes. The link to child benefit has gone. Accordingly the problem that arises in the present case will not recur, at any rate in its present form. There is still, however, a single payment approach and the new test is primary responsibility for the child. We were provided with of a copy of an extract from Hansard for June 2002 (volume 387 columns 726-729). The House was dealing with House of Lords amendments numbers 13, 14, 15, 16 and 101 to the Bill that led to the Tax Credits Act 2002. Mrs Dawn Primarolo, then Financial Secretary to the Treasury said:

“However, we recognise that patterns of care may be changing. That is the reason for the amendments. Many more families share responsibility for children than was previously the case, especially where a family has split up - resulting in both parents sharing responsibility for the children from the former relationship. The increase in shared responsibilities between families raises the question whether, in future, direct support to one family will continue to be the right approach. We are determined to keep the provision of government support in such cases under review, in order to ensure that we meet the needs of the children involved.

We have no intention, however, of making any hasty or ill considered changes to our present approach. The question of shared responsibility for children goes wider than tax credits and affects other systems of support that recognise the needs of families of children such as housing benefit. Even if, in the light of the changing climate on this issue, we became persuaded that a change in approach was warranted, such a change could not be made overnight.”

She went on to say that the government’s consultation exercise showed that payment of support for the family with the main responsibility for the child was seen as the most appropriate way to deal with the vast majority of children. If there were to be a change this would have to be carefully thought about. She then said:

“Against that background, we see the need to make some protective changes to the Bill to equip us to change the way we deal with shared care cases – if it became apparent that a different approach was more appropriate. To provide us with that flexibility, Lords amendment number 14 would allow us to vary the amount of the individual element in the child tax credit to reflect any relevant factors, such as shared responsibility for a child. That mirrors a similar power already present in the family element.

Lords amendment number 15 would enable us, where more than one claim is received for a particular child or children, to pay each family a reduced amount of any element payable in respect of any particular child – to reflect the level of care that the family provides. If we decided, in the future, to recognise the claim for a child by more than one household at any one time, we would not want those households to be in a better position in terms of tax credits than a family who had stayed together throughout and was solely responsible for a child.”

And a little later:

“However, the key factor in making the amendments is to make clear in the Bill that, if, in future, tax credits have to reflect shared care responsibility, entitlement can be divided and not duplicated.”

She than concluded:

“For example, we might wish to confine access to child credit to those who care for a child for at least three or four days a week, or, looking at the matter more broadly, for about 40% of the time on a regular basis. The powers that we have taken would enable such matters to be covered in secondary legislation, which can be fine tuned more readily if necessary, following detailed considerations and consultation.”

Mrs Primarolo was not, of course, dealing with the precise situation that arises in the present case in relation to JSA and Article 4. However, her observations make clear that there are alternatives that could have been considered. At the very least, someone who is a substantial minority carer on an ongoing basis might have been better provided for than by the link to child benefit under regulation 77. There could have been some reduction in the discriminatory effect of the regulation.

When looking at the aim that has now been defined, both fairness and the efficient distribution of public funds are obviously key elements. The court therefore has to focus on whether the particular form of regulation 77 was an appropriate means of achieving it. On the evidence regulation 77 scores highly on the efficiency criterion but it does not on the fairness criterion. This would be nothing to the point if the provision did not offend a fundamental principle of Community law. That is the starting point and the fact of discrimination is of course accepted by the Secretary of State. There is nothing offensive in law about the child benefit provisions as such; they only become offensive once the link is made to JSA whereby Article 4 kicks in.

I think there is considerable force in Mr Drabble’s submission that the unfairness of the operation of regulation 77, and in particular the ‘no splitting’ provision in regulation 77(5), is not just a marginal unfairness that operates in occasional hard cases. It is much more than that. A look at the figures illustrates this. For example in January 1998 the amount for a single claimant on JSA was £49.15. The personal allowance for a child over 11 but under 16 was £24.75 and the family premium for a lone parent £15.75. The majority carer of two children with the child benefit link receives £49.15 + £24.75 x 2 + £15.75, a total of £114.40, but the minority carer like the appellant looking after the children say 40% of the time receives just £49.15 which seems to me to fall very far below an appropriate subsistence level. The position becomes worse with more children. The legislation may be administratively convenient to operate but it can hardly be said to be a fair distribution of the public funds available to maintain children within the confines of a subsistence benefit.

Mr Paines bluntly submits that the appellant has not advanced a better system. Mr Drabble submits that it is obviously possible to design a subsistence benefit system which copes more adequately with the problem of shared care than the present one does. Something less rigid and more flexible is required. The Secretary of State’s response is that this would give rise to administrative problems and expense. However, there is no evidence that the government has tried to tackle the problem and in particular balance cost and administrative convenience against mitigating the rigidity of the scheme. Mr Drabble’s argument is that social security legislation is full of examples of the government addressing complex issues in regulations. Whilst some element of what he calls ‘bright line’ treatment is no doubt inevitable, leaving a 40% minority carer with no assistance for child costs during a period of involuntary unemployment is simply not acceptable. A system does not necessarily have to be designed on a night, by night care basis or even on a week, by week basis. It may be necessary to look at a longer period for example three months, see e.g. how shared care is dealt with under the Child Support Acts where a father does not pay a lower rate of child support unless he has the child for more than 104 nights a year. In my judgment there is considerable force in these submissions.

The Secretary of State’s case is that he can justify the whole of the provisions within regulation 77. Mr Paines submits on his behalf that it would be impossible within the benefit system to set up a mechanism for adjudication on the levels of financial contribution actually made by each of two separated parents who cannot agree about financial provision. The position would be particularly difficult where only one parent was on income support or a JSA claimant and no information was available from the other. A system that apportioned the premium purely on the basis of time spent with each parent would be administratively unworkable. Residence arrangements might change at short notice and in any event the number of nights spent with a parent may have no relation at all to actual expenditure on the child.

Mr Paines argues that the appellant’s case in reality boils down to a contention that the Secretary of State was not reasonably justified in not adopting a premium splitting policy. He submits that the test of which parent has the greater responsibility is as good a test as can be found. It operates as fairly as possible between parents with split care. He defends the single payment rule and the procedural arrangements in the regulations. Premium splitting would provide no better answer than a weekly test of primary responsibility. He points out that if the parents agree between themselves any financial injustice can be avoided. Unfortunately, however, it is often the case that parents do not agree.

Reference was made, during the argument, to regulations 77(4) and 78(7), which together contain the single exception to rule that the weekly premium cannot be split. This, like Mrs Primarolo’s statement in the House of Commons, illustrates that it is not impossible for the premium to be split. The case for not doing so rests on practicality and administrative convenience. The situation envisaged in regulation 77(4) (see regulation 78(7)) is one in which the child is in local authority care and there is likely to be a stable pattern of movement of the child between the local authority and the claimant and, importantly submits Mr Paines, there will be an authoritative source of information as to this pattern.

Mr Paines also argues that it is in the interests of the child for the premium to be paid to one parent. If it is split a situation is created in which neither parent has control of the budget and neither parent is in a position to pay for the higher cost items. It seems to me that the ‘interests of the child’ argument works both ways because it cannot be in the ‘interests of the child’ for one parent to have no money to meet the costs he will have to pay.

In conclusion, submits Mr Paines, the court cannot be confident that some other system would not produce more hardship. The court cannot be satisfied that a premium splitting system would so obviously be better that no reasonable Secretary of State could decide otherwise. Having, rightly in his submission, accepted that the single payment rule was justifiable (regulation 77(5)) the commissioner was wrong to reject the benefit link (regulation 77(1)). Even under the rule that operated before 1993, he points out, there was a fall back to the child benefit link.

Mr Drabble’s starting point is that having defined the aim (see paragraph 46 above) the court has to look at regulation 77 as a whole and decide whether the Secretary of State was justified in concluding that regulation 77 was a suitable and reasonable means of achieving that end, not just each constituent element of regulation 77 but the regulation as a whole. He submits that this involves looking both at the interests of the State in having an efficient benefit system and at recipients of the benefit such as the appellant. He makes the general point that it is possible for things to change over time. A measure that was once justified might cease to be so over time if circumstances changed.

It is forcibly argued that a system in which a substantial minority carer can be left short of money to meet the necessities of life is seriously deficient. One possible solution might be a flat rate for a minority carer. Be that as it may, it is not up to the appellant to put forward what the arrangements should be. The Secretary of State has been aware of the problem at the very least since the Court of Appeal sent the case back to a commissioner in May 2001. So he has had ample opportunity to explore other options; but he has not done so. The fact that the present JSA legislation discriminates in favour of women as it does is enough to have required the Secretary of State or those on his behalf to have given active consideration to a better alternative.

Mr Drabble accepts the appropriateness of some bright–line rule. Complete equality cannot be achieved in all situations, but at least the result should be fairer than at present. The present arrangements fail to direct the money to where it needs to go. The Secretary of State has to justify that only one parent receives the supplement when two are in need of it. In my judgment there is considerable force in the point that the Secretary of State has failed to justify treating only one parent as responsible in circumstances when the reality is that both are. A freestanding test of responsibility spelt out in regulations would be likely to be fairer than the present proxy link to child benefit. As Mr Drabble points out, the real vice of the present system is that payment of the supplement is dependant on receipt of child benefit.

Mr Paines argues that, without a concrete proposal, it is impossible to assess all the implications and in particular whether some alternative arrangement would be practical. He further submits it would be dangerous and inappropriate for the court to require the Secretary of State to draw up a different system. For my part I am unimpressed with these arguments. The burden is on the Secretary of State to justify the discrimination that undoubtedly arises from the legislation, as it presently exists. The Secretary of State has, on the evidence, never applied his mind to the question of whether there is better or different way of achieving the policy aim that would avoid, or the very least diminish, the discrimination, which is at present considerable. For one thing, there is no evidence that the Secretary of State has ever considered the extent of the discrimination. It is not for the court to explore other options, but looking at the care position over a period longer than a week and a flat rate payment for a minority carer are obvious possibilities.

The commissioner concluded that the justification test was to be found in paragraphs 33 and 34 of the judgment in Nolte and that the challenged measure had to be both suitable and necessary to achieve a legitimate policy aim, despite Lord Nicholls use of slightly different wording in Seymour-Smith. I agree with this. He was unimpressed with the Secretary of State’s case on justification. He said at paragraph 37 of his decision:

“Taking into account the nature and structure of income-based JSA as described above, I consider that the test for responsibility for a child in Regulation 77(1) of the JSA Regulations, in terms of receipt of child benefit, is not a suitable or necessary means of achieving the social policy aim put forward by the Secretary of State. The test does not adequately identify the person who is responsible for the child or young person in question, or even the person who bears the greater proportion of the responsibility.”

He said he had taken into account, among other things, the possibility of achieving the social policy aim by other means. He noted that before October 1993 the income-support test had been in terms of primary responsibility for a child. He accepted that the fact that the policy aim could have been achieved by other means did not in itself mean that the questioned provision could not be objectively justified. But it seemed to him to be a weighty factor against justification that in the legislation for three other income-related benefits a different test for determining who is responsible for a child had been adopted and maintained. The other benefits he was referring to were working families tax credit (formerly family credit), housing benefit and council tax benefit. In each case the primary test for determining responsibility for a child is the ‘normally lives with’ test. Receipt of child benefit only comes in as a fall-back. That different test did not involve an automatic and exhaustive link to receipt of child benefit. It left open the possibility, especially in circumstances where only one person had claimed child benefit, of a different person being found on the facts responsible for the child in question.

The commissioner’s finding, however, fell short of what Mr Drabble was seeking as regards the extent of unjustified discrimination. He found that although regulations 77(1), 77(2) and 77(3)(b) were discriminatory and unjustified, regulations 77(3)(a) and 77(5) were not. He said that there was no doubt that the rule in regulation 77(1) (and the consequential provision in regulation 77(2)) was affected. And so was the rule in regulation 77(3)(b). But the ‘first crucial issue’ was whether the rule in regulation 77(5) that a child or young person was to be treated as the responsibility of only one person in any benefit week was affected.

Here he was confronted with conflicting submissions. On the one hand Mr Drabble submitted that regulation 77(5) was part and parcel of the discriminatory structure of regulation 77 and it fell, along with regulation 77(1). On the other, the Secretary of State’s case was that once the discriminatory link to child benefit in regulation 77(1) was removed, regulation 77(5) stood in its own right and was either not discriminatory or was justified as preventing a double payment for the same need. There was a strong submission that it would be administratively unworkable if income-based JSA could be shared on a part week basis where children lived in different households for part of a week. The commissioner expressed his conclusion in these terms:

“In so far as the effect of regulation 77(5) is to prevent two different people from being treated as responsible for a child for the same benefit period (whether that is a week or a day), there is a link to the discriminatory rule tying responsibility exclusively to receipt of child benefit. However, it seems to me that that effect is amply justified by the principle that the same need should not be met twice by the same benefit. In so far as the effect of regulation 77(5) is that responsibility for a child must (except in particular limited cases) be attributed for the whole of each benefit week, in my judgment that effect has not been shown to be discriminatory on the ground of sex. Once the discriminatory link to child benefit is removed it seems to me that the rule is neutral in its effect. If it was not, I would be inclined to say that it was within the broad margin of discretion available to Member States to say whether a benefit, or some element of it, could be paid to any particular person on a part– week basis or only on a whole-week basis.”

I am unable to accept the commissioner’s conclusion on regulation 77(5). As the heading to regulation 77 indicates, it is dealing with the circumstances in which a person is to be treated for the purposes of JSA as responsible or not responsible for another. The central provision of the regulation, which spells out the ordinary rule, is regulation 77(1). It equates responsibility to receipt of child benefit. It is, however, expressed to be subject to regulations 72(2), (3), (4) and (5). Whereas regulation 77(3)(a) and 77(4) might be said to have an existence independent of the child benefit link, this cannot realistically be said of regulation 77(5) which specifically refers to a benefit week. The commissioner’s approach seems to me akin to cutting down the tree (regulation 77(1)), but trying to leave a branch (regulation 77(5)) standing. In my judgment the underlying discriminatory complaint is the linking of child benefit to JSA. JSA is a subsistence benefit; child benefit is not. Regulation 77(5) lies at the heart of the problem because it prevents appropriate subsistence being paid to one parent in shared care cases. Because this parent is usually the father, the provision is discriminatory. Mr Drabble gave an example of a man who has care for say three nights a week. The woman will receive all the dependant’s additions and family premium payable under JSA (or income-support) if her financial position otherwise merits it. Given the subsistence nature of the benefit, this effect is, he submits, difficult to justify even if one looks at an isolated week. If one looks at a longer period – say a year – the effect is very marked indeed. The minority but substantial carer who has care for say three nights a week will have to live with an income well below subsistence level. The greater the number of children the worse the position becomes. The majority carer who has the children for the other four nights a week will correspondingly benefit.

In my judgment the commissioner was wrong to say that the appellant’s evidence of discrimination did not bite on regulation 77 (5) and he was wrong to say he did not see why he should not look at what is left of regulation 77 after regulation 77(1) has been removed. Regulation 77(5) is in my view plainly discriminatory both as part of the machinery of the link to child benefit and on a free standing basis. I cannot accept that it is, as the commissioner said, “neutral in effect.”

I also disagree with the commissioner’s conclusion that even if regulation 77(5) is discriminatory it falls within the broad margin discretion open to the United Kingdom when implementing Article 4 of the Directive. In my judgment when one looks to the question of justification and asks what the Secretary of State has to justify, one does not look just at regulation 77(1) or regulation 77(5), one looks at both as parts of the whole picture. Regulation 77(5) is part of a bundle of provisions whose aim is to provide entitlement. The Secretary of State has to justify that only one parent can receive the benefit when both are in need of it.

Turning to regulation 77(3)(a), which applies when no one is receiving child benefit for the child, and sets the test for the person responsible as the person with whom the child or young person usually lives. Mr Drabble’s argument is that adoption of this rule would perpetuate the situation where substantial, but minority, carers were left with an income substantially below subsistence level. In this instance the commissioner said that, assuming the rule was discriminatory on the ground of sex (as in my view it plainly is) it was within the broad margin of discretion for responsibility for a child to be determined by a factual test in terms of the person with whom the child usually lives, which in its nature requires consideration of the circumstances over time rather than within each week. Again, I am unable to agree with the commissioner. Once more the difficulty is that the rule does not address the position of the substantial minority carer in relation to a subsistence benefit. Here the example given by Mr Drabble is, of a child who spends four or six weeks of the summer holidays with the father. This would not alter the fact that the child usually lives with the mother. But the whole purpose of a subsistence benefit like JSA is to prevent a claimant’s income falling below subsistence level during a, possibly short, period of unemployment. Accordingly, in my judgment, regulations 77(5) and 77(3)(a) are, like regulations 77(1), 77(2) and 77(3)(b) discriminatory contrary to Article 4 of the Directive and have not been justified by the Secretary of State.

It is established that Mr Hockenjos, as a substantial minority carer, has been unjustifiably discriminated against. What is his remedy? The ordinary principle is to put the party who has been discriminated against in the same position as the comparator who has not been disadvantaged. There is no question of removing from Mrs Hockenjos any of the benefit she has received. She has an entitlement to it under the national legislation which (including regulation 77) is valid and enforceable as far as she is concerned. Because of the non-splitting rule a recipient either receives the whole of the supplement or none at all. It would be an obvious injustice, submits Mr Paines, for Mr Hockenjos to receive the whole as Mrs Hockenjos has already received the whole and the State would end up paying the same benefit twice over. There is obvious force in this; shared care should surely result in sharing the extra payment provided by the State.

In the present case the same rule, linking the supplement for looking after a child to child benefit, applies to both sexes. The problem arises because it operates in such a way as to favour women. If the rule cannot be applied one has to look elsewhere for a solution. The commissioner’s approach was to apply regulation 77 shorn of its discriminatory aspect. Under his ruling, the anti-splitting provision in rule 77(5) remained because he regarded it as unobjectionable. He said at paragraph 59:

“In summary, my decision on the law is that regulation 77(1), (2) and (3)(b) of the JSA Regulations is not to be applied to any persons within the personal scope of Directive 79/7, with the result that the question of whether the claimant is to be treated as responsible for Heidi and Alisha is to be determined by applying Regulation 77(3)(a) and (5). That involves applying the test of with whom the child usually lives. I hold, by analogy with what was held in decision CFC 1537/1995 about the test of with whom a child normally lives, that the question is not to be judged by looking at the position within each benefit week, but by looking at what is usual by reference to a longer period. Since I have held that, by virtue of Regulation 77(5), only one person may be treated as responsible for a child or young person in each benefit week, the test in Regulation 77(3)(a) must be applied so as to resolve any conflict between those competing to be treated as responsible.”

Mr Paines is content with this remedy on the basis of the commissioner’s decisions on the substance of the case. But in my view other parts of regulation 77 are discriminatory and cannot be applied, including regulation 77(5); the whole of the link with child benefit is objectionable.

It is axiomatic that the national government transposes Article 4 of the Directive into national law. The Directive is of direct effect. Accordingly, individuals can rely on the prohibition in Article 4 in the United Kingdom courts. Ordinarily, Community law does not provide remedies for the infringement of the rights it confers. In the absence of any relevant Community rule, remedies normally available under national law must be open to litigants seeking to enforce claims under Community law, and on terms that are no less favourable than those applying to litigants with claims under national law (Comet v Produktschap Voor Siegewassen [1976] ECR 2043, para 13).

The starting point it seems to me is that the scheme provided by the Secretary of State is not objectively justifiable because it does not cater for the substantial minority carer. That is both the beginning and the end of Mr Drabble’s case. It is not for the court to rewrite the scheme in such a way that it is objectively justifiable; that is a matter for Parliament. There may be, probably is, more than one way of achieving a result that is objectively justifiable, but it is up the Secretary of State to choose the desired route.

It seems to me that the remedy has to be considered in the context of the proceedings that are before the court. The present proceedings are a statutory appeal from a social security commissioner, who was himself deciding a statutory appeal from the decision of an appeal tribunal. The original decision appealed to it was made by the Secretary of State and was on entitlement to benefit (see Part I, Chapter II of the Social Security Act 1998). This court’s powers are limited to those of the commissioner (see section 15 of the Supreme Court Act 1981) and his powers are limited to those of the tribunal (see section 14(8) of the Social Security Act 1998). There is, for example, no power to award compensation –– which the parties agree would in any event be inappropriate because the breach of the Directive was not sufficiently serious to attract this remedy.

The underlying issue of Mr Hockenjos’ appeal is that his weekly award of JSA has been too little because he did not receive the relevant supplement. The fact finder has first to decide whether this is because he has been discriminated against in breach of Article 4 of the Directive. For the reasons I have given my answer is that he was, on the basis of the claim that he advanced as a substantial minority carer. His directly effective right not to be discriminated against has been infringed. The result however is not that the offending parts of regulation 77 are struck down altogether. There is nothing to stop them being applied where they do not operate in a discriminatory fashion. They are properly applied for example, to Mrs Hockenjos, to small minority carers and others who cannot establish discrimination on the facts of their cases. Directives are not directly enforceable; the rule is that a national provision cannot be applied in a way that breaches the Directive. In short, the offending parts of regulation 77 cannot be applied to Mr Hockenjos.

Support for this approach is to be found in Pubblico Ministero v Tullio Ratti 1979 ECR 1629 where the European Court said at p1642, para 23:

“It follows that a national court requested by a person who has complied with the provisions of a directive not to apply a national provision incompatible with the directive not incorporated into the legal order of a defaulting Member State, must uphold that request if the obligation is unconditional and sufficiently precise.”

The court should not apply regulation 77 insofar as it breaches Mr Hockenjos’ directly effective rights.

This is, submits Mr Drabble, a straightforward case of vertical direct effect where Mr Hockenjos is seeking to use Article 4 as a shield to prevent the State from applying the impugned measure. The simple answer is that the state is not allowed to do so; it is unnecessary to adopt any other technique, for example, reading into offending legislation words that are not there, as was done in Litster v Forth Dry Dock & Engineering Co Ltd [1990] AC 546. It is to be observed that that was the obvious route in Litster because there the relevant regulations were made expressly for the purpose of complying with the relevant directive.

I turn therefore to analyse the position absent the offending provisions of regulation 77. The starting point is section 4 of the 1995 Act. Section 4(5) provides that the applicable amount is to be determined in accordance with regulations. One, turns then to the JSA Regulations. Regulations 83(b) and (d) provide for payments of additional amounts in respect of members of the family. One then turns to section 35 of the 1995 Act (the definition section) to find the meaning of ‘family’.

“……..a member of the same household for whom that person is responsible and who is a child or a person of a prescribed description.”

Regulation 77 goes on of course to describe the circumstances in which a person is or is not to be treated as responsible for another and makes the link to regulation 77(1) to receipt of child benefit. If, however regulation 77 cannot be applied, the fact finder is driven back to section 35 in calculating the appropriate amount. He will then have to decide on the evidence before him whether the child in question is a member of the same household for whom the applicant is responsible. This is to be decided on a week by week basis and, absent the link to regulation 77, there is no reason to construe ‘responsible’ in section 35 as measuring sole or primary responsibility. As a matter of ordinary interpretation there is no reason why more than one person should not be responsible for the same child. There can in my judgment only be one answer in the present case. Mr Hockenjos is a substantial minority carer and his children clearly fall within the definition of family in section 35. Other cases, depending on the evidence, will fall nearer the margin or on the other side.

It is also important to keep in mind that JSA is ordinarily a weekly benefit (see section 1(3) of the 1995 Act).

It seems to me clear that if a person meets the statutory criteria he is entitled to JSA. The issue in this case is the amount. If an applicant has a relevant child he is entitled to an additional amount but the scheme, whether with regulation 77 or shorn of regulation 77 does not permit division of this additional amount. It is all or nothing.

We were referred to number of authorities including Jackson and Cresswell v Chief Adjudication Officer [1992] ECR I–4737, Kowalska v Frie und Hansestadt C–33/89 [1990] ECR I–2591 and Imperial Chemical Industries Plc v Colmer (Inspector of Taxes) [1999] I WLR 2035, but I am not persuaded that any of them is authority for any different approach in a case, such as the present, where the problem arises because one aspect of a statutory scheme offends a directive and therefore falls to be disapplied. The commissioner referred to Jackson and Cresswell at paragraph 51 of his decision citing the opinion of Advocate General Van Gerven:

“The Court has consistently held that the national court may not apply the provision which is contrary to Community law. Yet the problem in the situation in question is that the frame of reference which the Court of Justice offers the national court in equal treatment cases with regard to remedies for individuals does not provide a solution here. In the event that discrimination is established, the court requires the national court invariably to apply the same rules to the members of the group placed at a disadvantage, be they men or women, as are applied to members of the other group. That approach affords no comfort to the appellants in the main proceedings: even in the case of lone fathers, childminding expenses are not deductible from income for vocational training (supplementary allowance) or from income from work (income support).”

The Advocate General then went on to point out that the principle of construing national law consistently with a directive did not seem to help with a directive which had direct effect or where the national rule was unambiguously clear and suggested that a declaration of entitlement to compensation seemed to be the best solution. That course is not open in this case. In the event the European Court held that discrimination was not established and the question of remedy did not have to be resolved. But, as Mr Drabble points out, the court was there concerned with a different type of situation the complaint being about the absence of a national measure rather than the existence of one that was unlawful.

In Kowalska v Freie und Hansestadt Hamburg C-33/89 [1990] ECR 1-2591 under a collective agreement employees who had contracted to work normal working hours were entitled, subject to some additional conditions, to a severance grant on retirement. The claimant fulfilled all the conditions except that she did not work for at least 38 hours. This was a case of indirect discrimination in that a lower percentage of men than women worked part time. The court said:

“19 It is apparent from the judgment of 13 December 1989 in case C-102/88 Ruzius Wilbrink v Betsuur van de Bedriifsvereniging voor Overheidsdiensten [1989] ECR 4311, that in a case of indirect discrimination the members of the class of persons placed at a disadvantage are entitled to have the same scheme applied to them as that applied to other workers, on a basis proportional to their working time. That ruling applies equally to discriminatory provisions in a collective agreement.

20.

In must therefore be stated in reply to the second question that, where there is indirect discrimination in a clause in a collective wage agreement, the class of persons placed at a disadvantage by reason of that discrimination must treated in the same way and made subject to the same scheme, proportionately to the number of hours worked, as other workers, such scheme remaining, for want of correct transposition of Article 119 of the EEC Treaty into a national law, the only valid point of reference.”

The result in Kowalska was that both the part time worker and the full time worker received the objectively appropriate amount. The scheme in the present case, however, is bedevilled by the no-splitting provision in regulation 77(5). In consequence, a shared carer like Mrs Hockenjos will receive more than the objectively appropriate amount because she is deemed, at the expense of the minority carer, to be the person who is responsible for the child. Because there is no way of removing from her any notional overpayment, the only way of putting the appellant in the same position is by following the route advocated by Mr Drabble.

Colmer like R v Secretary of State for Transport ex parte Factortame Ltd [1990] 2AC 85 was a case concerned with basic treaty rights. The position in the present case is that one gives effect to the doctrine of direct effect by disapplying regulation 77. There is no need, nor is it appropriate, to apply any different approach by, for example, writing into the scheme words that are not there.

My one concern about the remedy that Mr Drabble has persuaded me is the appropriate one is that the Secretary of State ends up paying twice when it was the clear intention of the scheme that he should only pay once. Obviously one’s thought turn to the possibility of other cases and the ultimate burden on the Exchequer. In this I am comforted by two matters. First (see para 51 above) the present scheme has been replaced by a different scheme with child tax credits; second we are told that no other cases are known to be awaiting the result of this appeal and in any event section 27 of the Social Security Act 1998 would appear to limit the benefit to others of a result favourable to Mr Hockenjos.

For the sake of completeness I would add that it is common ground that Mr Hockenjos is not entitled to interest on any sum ultimately awarded (see R v Secretary of State ex parte Sutton [1997] 1CR 961).

During the adjourned hearing of this appeal, mention was made for the first time of the possible relevance of the Apportionment Act 1870. There was no detailed oral argument but counsel on both sides subsequently lodged written submissions with the court. In his written submission Mr Drabble argues that section 2 of the 1870 Act is dealing with periodical payments to which there is an enforceable right in private law and that it has no application to the process of calculation under which the Secretary of State has to determine as a matter of public law Mr Hockenjos’ applicable amount and makes an order reflecting it.

By section 1(3) of the 1995 Act JSA is paid in respect of a week. By the operation of section 35 (in the event that regulation 77 has to be disapplied) an applicant who is a substantial minority carer is entitled to an addition in respect of a child who is a member of his household. Whether a child qualifies as a member of his family within this definition is a question of fact. In my view Alisha plainly does. But the section says nothing about time spent in the household as being the determinative factor in deciding responsibility. Once the test is met the appropriate supplement becomes an integral part of the JSA for the week in question. I cannot see that there is any case for apportionment just because Alisha stays with Mr Hockenjos for some periods less than a week. I am not persuaded that the Apportionment Act applies.

It is perhaps helpful to summarise the present position, as I understand it to be. The appellant has never received any personal allowance or family premium in respect of Alisha. From 21 December 1998, until she ceased to qualify for child benefit, the appellant received the personal allowance and family premium for Heidi. Prior to 21 December 1998 under the commissioner’s decision the appellant is entitled to JSA with the inclusion of the family premium and a personal allowance for Heidi for the short period between 16 December 1997 and 7 January 1978.

I would accordingly allow the appeal and, in the event that the appropriate figure cannot be agreed, remit the case to the commissioner for the amount of the applicant’s entitlement to be calculated on the basis I have described. I would dismiss the cross-appeal.

The essence of Mr Hockenjos’ case is that the female comparator in receipt of child benefit receives full payment even if she is the minority carer: she is effectively “passported” to full benefit by the receipt of child benefit. This proposition involve a number of sub-issues but the statutory provisions which give rise to dispute are:

I refer below to the Jobseekers’ Act 1995 as “the 1995 Act”, and to the Job Seeker’s Allowance Regulations 1996 (as amended) as “the 1996 Regulations”. I refer below to the benefits under paragraphs (b) and (d) of regulation 83 as personal allowances and family premium respectively. I gratefully adopt the statement of the facts, and the citations from the authorities and the various statutory provisions, set out in the judgment of Scott Baker LJ. I too would like to pay tribute to the detailed and careful decision of Mr Commissioner Mesher.

The Secretary of State accepts that the link between personal allowances and family premium on the one hand and child benefit on the other hand, is discriminatory. I agree with Ward and Scott Baker LJJ that this link is not capable of objective justification. The child benefit link is an artificial means of assessing responsibility for a child, and the argument that it is not possible to devise a better system are not consistent with the basis adopted in the new child tax credit regulations, which is to succeed income-based JSA. As Scott Baker LJ has explained, those regulations award assistance on the basis of main responsibility for a child, not on the basis of the artificial child benefit link. I do not consider that in these circumstances the Secretary of State can satisfy the test in the Seymour-Smith case discussed below. I would, therefore, dismiss the Secretary of State’s cross-appeal.

The Commissioner, having concluded that the child benefit link was not justified proceeded to award Mr Hockenjos personal allowances and family premium for his daughter, Heidi, until he ceased to qualify for personal allowances and family premium in respect of her. The evidence was that, despite the terms of the court’s order set out in paragraph 3 of the judgment of Scott Baker LJ, Heidi normally lived with Mr Hockenjos. The Commissioner applied this test to Mr Hockenjos by analogy with regulation 77(3)(a). As far as I can see, no deduction was made for the fact that Heidi also lived with her mother. In that respect, it was Mr Hockenjos who received the benefit of the single payment/single claimant rule in regulation 77(5), discussed below.

Mr Drabble, in effect, accepts that, if the child benefit link goes, then the person to whom the personal allowance and family premium would, under regulation 77(5), go would be the primary carer. His argument on the second issue is predicated on this result.

The second issue is whether the single payment/single claimant rule is also discriminatory, and if so, whether it is capable of justification. Mr Drabble’s argument starts from the premise that Mr Hockenjos has won on the first issue. That means that the second half of regulation 77(5) (“and any person ... shall be treated as not so responsible”) cannot be relied on against him. The issue is whether the single payment rule in the first half of regulation 77(5) (“a child ... shall be treated as the responsibility of any one person”) infringes Mr Hockenjos’ directive right not to be discriminated against. Even if the mother is not claiming JSA, the father will not be entitled to a personal allowance for a child or the family premium unless he is the primary carer. I agree that the single payment rule is discriminatory since there are likely to be more women who are primary carers than men. However, the discrimination is indirect, and thus the court must consider whether the discrimination is objectively justified.

Mr Drabble’s concern is with the substantial minority carer, i.e. a carer who is responsible for a child for more than 104 nights (28%) in a year. I refer to this wider class below.

In the field of social policy, such as this, the state is entitled to a wide margin of discretion (see R v Secretary of State for Employment ex parte Seymour-Smith (Case C167/97) [1999] ECR 1 – 623. The test to be applied is whether the Secretary of State can show that the single payment rule reflects the necessary aim of social policy and is suitable and necessary for achieving that aim. Accordingly, once the Secretary of State shows that the single payment rule is a suitable means of distributing the benefit and that some rule of that nature has to be imposed, it is not open to the court to reject it on the grounds that some other rule would, in its judgment, have been fairer. The constitutional function of designing the social security system is that of the Secretary of State. His scheme will not be subject to the prohibition on discrimination in Directive 79/7 unless he fails to show that he could reasonably consider the single payment/single claimant rule to be a suitable method of distributing Social Security payments or is unnecessary for that purpose. It has not been suggested the single payment rule is unnecessary. The Secretary of State has to choose between apportionment or single payment in each week. A system which had neither feature would not work.

Has the Secretary of Stage shown that the single payment/single claimant rule is a suitable means of distributing the benefit? As I see it, the Secretary of State has produced some persuasive reasons for choosing this method. The arrangements for the care of children can be very fluid. The benefit needs to be paid quickly and without delay. If there is a lot of argument about which parent is responsible, that will cause delay and the disputes may be intractable. If only one parent claims personal allowances and family premium, the Secretary of State is likely to have evidence only from that claimant. The system was altered from primary care as the criterion for benefit to the child benefit link precisely because of difficulties in determining even who the primary carer was. Moreover, it is not simply a question of which parent has the child for longer. There are more factors involved, such as which parent is responsible for “capital” items, such as clothing. It would be wholly impracticable for the Secretary of State to have a system in which he made a decision each week for each child as to who was responsible for a child based on the facts of that case. A system which led to delays or led to both parents claiming they had no funds for capital items was unlikely to be in the interests of the child. In a social security system, there has to be some general rule. The general rule which is chosen here is that the benefit goes to the primary carer and is paid on the basis of a single payment for each week. On this approach, there is no room for apportionment.

Scott Baker LJ expresses the view that there is no evidence that the Secretary of State has given consideration to a viable alternative. However, there is evidence that the government considered benefit-splitting in relation to the successor system of child tax credits. Scott Baker LJ has set out most of the statement of the Financial Secretary to the Treasury at paragraphs 49 and 50 of his judgment. The Financial Secretary explained the reasons for not making an immediate change as follows:-

I think one can take it that, if that was the government’s conclusion on the new child tax credit system, it is hardly likely that the government would come to any different conclusion on the JSA system. Moreover, the government also stated that it would keep the position under review. When considering the points made by the Financial Secretary, it must be borne in mind that any change would have an adverse impact on majority carers, as it is clearly intended that there should only be one personal allowance and payment of family premium per child. Majority carers are not, of course, represented in these proceedings. They would need time to adjust to any change. Their position is one of the matters the Secretary of State would have to take into account. It also has to be kept in mind that JSA is being phased out, and that Mr Hockenjos’ claim is the only claim made on the basis now under consideration, of which the Secretary of State is aware. That is relevant to the issue of proportionality, given the cost to public funds of any change. The intention to phase out JSA would have been known since at least 2001.

In the circumstances, the issue comes down to this. Mr Hockenjos is able to show that there is a stark disparity between what he receives and that which the female comparator would receive: the figures are graphically set out in paragraph 53 of the judgment of Scott Baker LJ. The Secretary of State has a policy-based reason for this distinction: see the evidence of Mr Binns, and the statement of the Financial Secretary. Does the policy have to be fair to all potential benefit claimants? The Court of Justice has repeatedly said that:-

“in the current state of Community law, social policy is a matter for member states ...”

This can be seen, for example, citations from the Nolte and the Seymour-Smith cases in paragraphs 34 and 36 of the judgment of Scott Baker LJ. The member state has a “broad margin of discretion”. What that means is that, while, as Scott Baker LJ points out, the test of proportionality must be satisfied, the level of intensity with which the court applies the requirements that a measure be suitable or necessary is a low one. As Lord Nicholls explained in the Seymour-Smith case (cited by Scott Baker LJ), the court at this stage of the enquiry asks simply: could it reasonably be considered (on the evidence) that the policy achieves its social policy aim? At this level of intensity, the court is not being asked to give its view as to what policy should be adopted. The scheme is contained in secondary legislation, but nonetheless the policy is made effective by a legislative, not an executive, act. That is another reason for judicial caution. Nor is the court being invited to assess whether the policy is conducive to equal treatment. In conclusion, the test is little different from the domestic test of Wednesbury unreasonableness. What it comes down to is that the Secretary of State can decide to benefit one group (primary carers) and not another group (substantial minority carers) provided that he does so for rational evidence-based reasons having the necessary relationship with his policy aim and not related to sex.

Scott Baker LJ relies on paragraph 75 of the Court of Justice’s decision in the Seymour-Smith case (set out in paragraph 36 of his judgment) as creating a self-standing basis of review under which the court has to ask whether the policy in question frustrates the implementation of the principle of equal treatment. In my judgment, paragraphs 76 and 77 of the Court of Justice’s judgment show that the court’s reviewing role is satisfied if there is evidence to support the government’s contentions that the policy is unrelated to discrimination on the grounds of sex and that it could reasonably consider that the policy in question is necessary to achieve its social policy aim. This is the interpretation of the judgment of the Court of Justice accepted by the House of Lords in the Seymour-Smith case. In this case, the social policy aim is that set out in paragraph 46 of the judgment of Scott Baker LJ. The Secretary of State contends that he can reasonably come to a view that his policy (the single payment rule) reasonably achieves that social policy aim for the reasons summarised earlier in this judgment. Those reasons address both fairness and efficiency. In the view of the Secretary of State, fairness to the substantial minority carer is of less priority than the interests of the child.

The Secretary of State’s view is that a time apportionment basis would simply distribute the inaccuracy differently: in this respect it would be irrelevant whether the court was of the view that time apportionment may be a better system and may result in less unfairness to the majority carer than the unfairness to the substantial minority carer under the present system. There are, moreover, other matters to be brought into the equation such as the difficulties of determination where, as is often the case, there is no court order or the parents vary the court order, and also the effect on the child where the parents cannot agree on who pays for capital items. We were also told there is also evidence that more women than men tend to go short themselves in order to provide for their children. The system cannot be changed just because in some cases the division of responsibility is clear, and in this I note that Mr Hockenjos was able to show that he was the primary carer of his daughter, Heidi, even though, on the face of the court’s order, he only cared for her for less than half the time. The situation is not necessarily improved by looking at the situation over a period of three months (as suggested in paragraph 54 of Scott Baker LJ’s judgment). That would cause delay and there may be no regular pattern or the pattern may not continue past the three months. If the pattern of shared care in any individual case increases, Scott Baker LJ’s solution will not necessarily solve the subsistence level problem. The balancing of the relevant considerations is for the Secretary of State. In the light of the statement by the Financial Secretary to Parliament, I do not consider that the decision not to have an apportionment scheme could in general be said to be irrational. Moreover, that statement meets the alternative means of challenge laid down by the Court of Justice in the Seymour-Smith case at paragraph 72 (set out in paragraph 36 of the judgment of Scott Baker LJ) that the government should have considered whether there were other ways of achieving the social policy aim.

Furthermore, there is no basis on which it can be said that the single payment rule is animated by a policy which is designed to benefit women at the expense of men. The single payment rule is imposed to produce an efficient administration of the benefit. Contrary to the view taken by Scott Baker LJ, it seems to me that the government have considered, but so far rejected, apportionment. Their reasons for doing so are not related to sex.

Furthermore, I would not for my part agree that, simply because regulations 77(4) and 78(7) provide for time apportionment where a child is in institutional care for part of the week, there is no practical obstacle in the Secretary of State introducing a scheme for parents sharing care. The circumstances giving rise to apportionment under regulations 77(4) and 78(7) are clear cases, and cases where time apportionment is clearly a suitable means of apportionment. For the reasons given above, time apportionment of benefit in the case of parents sharing care is not necessarily the appropriate method, and the position will often not be clear.

In those circumstances, with one qualification, I am driven to the conclusion that these reasons produced by the Secretary of State should be accepted as justification, and to agree with the conclusions of the Commissioner that the single payment/single claimant rule is within the broad margin of discretion available to the member state.

The one qualification is this. Part of the legitimate aim of the Secretary of State is to produce a fair distribution (see paragraph 46 of the judgment of Scott Baker LJ). I have referred above to the stark disparity between the financial position of Mr Hockenjos and that of his female comparator. As Mr Drabble submits, if a person has shared care of a child for substantial periods of time but does not receive dependant’s additions or family premium, he or she will be forced to live substantially below subsistence level. The Secretary of State could not, in my judgment, reasonably consider that a scheme which produced this result was necessary or appropriate to achieve his legitimate aim, unless possibly he could reasonably consider that very few individuals were involved or that the scheme was shortly to be replaced by another scheme under which this problem could be taken care of. The position here is that the Secretary of State has not ascertained the number of persons who may be affected: although no claims have been received, there may well be a significant number of such persons. According to statistics produced by the Child Support Agency, as at February 1998, there were some 41,200 men and 3,400 women non-resident parents sharing care for at least 104 nights a week. I accept that not all of these will be entitled to personal allowances or family premiums for their children, or will be sharing care to the extent Mr Hockenjos does or has done, but some of them will be. Moreover, for the reasons given by Scott Baker LJ and confirmed by the statement made by the Financial Secretary to the Treasury, to which I have referred above, the pattern of parents sharing care is likely to be increasing. As to the question of the JSA scheme being replaced, unless this had happened within a very short time frame, I do not consider that this could alter the conclusion that the Secretary of State could not reasonably consider that the scheme was necessary or suitable to achieve the legitimate aim of his policy. The other factors relied on by the Financial Secretary are all questions of practicality and timing: none of them poses an insuperable obstacle to distributing some part of the benefit to persons sharing care.

On the other hand, the conclusion I have reached would only apply where the person sharing care is responsible either equally or at least to the extent of 43% (3/7) of the time for the children in question. There has to be a dividing line somewhere. I, for my part, would not on the evidence in this case accept that the Secretary of State could be said to be irrational for not having a cut off at the level of 104 nights a year as proposed by Mr Hockenjos. In my judgment, the Secretary of State could reasonably consider that it cannot be assumed that one parent has say 2/7 of the expenses of a child simply because the child spends 2/7 of his time with him or her. The other parent, the majority carer, may well pay for all the cost of the child’s clothes, transport and so on. There must also be a point when it is not necessary to apportion because the amounts are relatively small and the costs of apportionment are disproportionate .

It is thus necessary to consider what remedy follows. Mr Drabble argues that paragraphs (1) and (5) of regulation 77 in the 1995 Regulations can be disapplied only as against the substantial minority carer. That leaves the female comparator in the same position. She will continue to obtain the full benefit because the rules against her are not affected. Accordingly, on Mr Drabble’s submission, to remove discrimination the full benefit must also be paid to the substantial minority carer.

This argument is simple. If paragraphs (1) and (5) of regulation 77 are disapplied, the substantial minority carer would simply have to show that he was a person “responsible” for a child in a benefit week. Section 35 of the 1995 Act is silent on the question of the period for which any person must be “responsible” but I will assume in Mr Hockenjos’ favour that it covers a person who is responsible during part of a week but not for the whole of the week. Regulation 77 appears to have been drafted on the basis that that is what “responsible” means. As an auxiliary argument, Mr Drabble submits that Mr Hockenjos is in fact responsible for the whole week. He could be contacted by his children’s school if one of his children fell ill or had an accident. For my part, I do not consider that this sort of contingency could render Mr Hockenjos “responsible” for his children for the purposes of section 35 on those days when the children were their mother’s responsibility.

Mr Hockenjos then has to claim the applicable amount. Section 1(3) of the 1995 Act makes clear that jobseeker’s allowance is paid for a whole week. The actual amount is fixed by regulation 83 which speaks “an applicable weekly amount”. Mr Hockenjos cannot show he is responsible for the entire week. He shares responsibility with his children’s mother, each having responsibility for part of the week only.

Section 2 of the Apportionment Act 1870 (“the 1870 Act”) provides:-

“All rents, annuities, dividends, and other periodical payments in the nature of income (whether reserved or made payable under an instrument or otherwise) shall, like interest on money lent, be considered as accruing from day to day and shall be apportionable in respect of time accordingly. ”

The Secretary of State submits that if paragraphs (1) and (5) of regulation 77 do not apply to Mr Hockenjos, section 2 of the 1870 Act would apply to the applicable weekly amount to which he would be entitled under regulation 83. Mr Paines submits that the “applicable weekly amount” constitutes a “periodical payment[s] in the nature of income”. Mr Drabble submits that section 2 cannot apply to a payment of benefit which the Secretary of State is obliged to make pursuant to the public law duties imposed on him under the 1995 Act and the Social Security Act 1998. He submits that private law only applies once a final decision has been given in favour of the claimant.

I do not accept Mr Drabble’s submission. Section 2 applies to any periodical payment whether it is made payable under a written instrument “or otherwise”. To read section 2 as limited to payments made otherwise than pursuant to a statute would, in my judgment, be to write in words which are not there. It is difficult to see why section 2 should not apply to (say) remuneration paid to the holder of the public office simply because it is by or pursuant to statute. Mr Drabble cites no authority for his more refined submission. I see no reason why the Secretary of State should not use section 2 when fulfilling his duties imposed by statute as a matter of public law.

There has been no argument that the application of regulation 83 read with the 1870 Act would involve unlawful discrimination. It is difficult to see how it could amount to unlawful discrimination provided that the Secretary of State could reasonably come to the view that this policy achieves his policy aim. It could not be said that to give the substantial minority carer less than the majority carer is in itself discriminatory and without justification. It could not be so said because there is on any basis a quantative difference in their responsibility.

In so far as Mr Drabble submits that, notwithstanding that the effect of regulation 83 (if read with the 1870 Act) is not itself discriminatory, the remedy which the court must award to the substantial minor carer under Community law is the whole of the family premium, I would not accept that submission. The court must disapply only those provisions which it has found to be discriminatory and without justification.

However, I now return to the question whether section 2 of the 1870 Act applies. I have already referred to section 1(3) of the 1995 Act. Section 21 of the 1995 Act and schedule 1, paragraph 5 to the 1995 Act confer power on the Secretary of State to make regulations in relation to entitlement to jobseeker’s allowance for periods of less than one week. This enabling power would clearly extend to making regulations for the time apportionment of a jobseeker’s allowance. Thus I would not accept the argument (if made) that benefits must always be paid on a full week basis. Indeed, I note that under the 1996 Regulations other elements of the jobseekers’ allowance can be prorated for a part of a week in certain circumstances (see regulation 150). So time apportionment of benefit in this field is not unknown.

However, section 7 of the 1870 Act provides:-

“The provisions of this Act shall not extend to any case in which it is or shall be expressly stipulated that no apportionment shall take place.”

In my judgment, the power conferred by section 21 and schedule 1, paragraph 5, of the 1995 Act must be taken to be exhaustive of the means by which the 1995 Act intended benefits to be apportioned for periods of less than one week. In my judgment, therefore, section 7 of the 1870 Act applies to exclude the application of section 2 of that Act.

On that basis, it is difficult to resist the force of Mr Drabble’s submission. The result is that Mr Hockenjos is entitled to a personal allowance and family premium for an entire week in respect of his second daughter, Alisha. Indeed, he will receive exactly the same amount for both of his daughters even though he is responsible for one for the majority of time, and for the other for only a minor part of the time.

This point clearly concerned the Commissioner, who refers at paragraph 45 of his decision (set out in paragraph [153] of the judgment of Ward LJ) to “the principle that the same need should not be met twice”. He relied on this principle to rejecting the argument that the discrimination was not capable of objective justification. For my part, for the reasons give above, I do not consider that this principle meets the point on which I have found that objective justification fails. Nonetheless, in my judgment, the Commissioner is right in saying that the principle that the same benefit should not be met twice by the same benefit is a principle of the statutory scheme for jobseeker’s allowances.

The need is, of course, that of the child. It is an essential feature of the system of jobseeker’s allowances that only one personal allowance or family premium is paid for a child even if in any given week more than one person is responsible for that child: see, for example, regulations 3A to 3G (joint claim couples); regulation 77(2) (parent who is a child); regulation 78(7) (child in institutional care for part of a week) and regulation 77(5) (single payment/single claimant rule). Indeed, it would be irrational to have a scheme which gave the number of whole personal allowances or family premiums per child which equated to the number of households of which it was a member in any week with any person responsible. That would disadvantage children whose parents lived together and the parents of those children. In other words, as it stands, family premium is clearly based on the concept of one personal allowance and family premium per child.

Moreover, in none of the cases that have been cited on the question of remedy (which are set out in judgment of Ward and Scott Baker LJJ) has the issue arisen of how effect is to be given to the right conferred by Directive 79/7 in these circumstances. Had the basis on which personal allowances and family premiums should be apportioned been clear, then, given that the overpayment to the majority carer was for historical reasons, it may well be that the court could have given effect to Mr Hockenjos’ directly effective right by awarding him simply a proportion of the two benefits. But no such clear method of apportionment exists.

Moreover, in my judgment, if the 1996 Regulations had contained a default rule and provided a proper basis on which personal allowances and family premiums requiring to be apportioned could have been apportioned, the court would give effect to Mr Hockenjos’ right by applying those regulations. It would not necessarily have followed that Mr Hockenjos should be awarded the whole of the personal allowance or the whole of the family premium simply because the whole of such benefits had been paid in the past to the female comparator.

In the absence, however, of such regulations, I conclude that the essential feature of the legislation identified above (and by the Commissioner) is displaced and has to give way to Mr Hockenjos’ right under Community law. Moreover, it seems to me that this must be so even though the effect on the scheme for jobseeker’s allowances is to produce a scheme which may well not survive a challenge on domestic judicial review grounds. In those terms, the result in this case will appear to many to be surprising.

Mr Paines QC accepts that this court could, following the practice of the Court of Justice, make a declaration as to Mr Hockenjos’ rights in a manner which limits its retrospective effect: compare Defrenne v Sabena [1976] ECR 455, ECJ.

Mr Paines asks us to consider making such an order. Again, we have not heard full argument on this point. However, in my judgment, Mr Paines has not shown that it was appropriate for the court to exercise this exceptional jurisdiction in this case. It is unnecessary for me to give my reasons in full. It has been an integral part of Mr Paines’ case that Mr Hockenjos’ claim is the only claim of its kind. If that is so, no need for prospective overruling is demonstrated. If that is not so, the Secretary of State has failed to produce adequate evidence to justify the court making a special order of the kind described. In any event, there is already a limitation on the retrospective effect of a successful appeal from a determination by the Secretary of State imposed by section 27 of the Social Security Act 1998.

For the reasons given above, in my judgment, a scheme whereunder personal allowances and family premium under income-based JSA are not payable to a person who is responsible for a child for not less than 43% of the time, being a child who is a member of his household, is discriminatory for the purposes of article 4 of directive 79/7, and not capable of justification.

In consequence, I agree with the order proposed by Scott Baker LJ in paragraph 94 of his judgment.

The facts and background material are fully set out in the judgments of Scott Baker and Arden L.JJ. and I need not repeat them. As I see it, these questions fall for consideration:

The first point to notice is that he is entitled to the jobseeker’s allowance. This is clear from section 1 of the Jobseeker’s Act 1995 providing as it does:-

“(1)

… a jobseeker’s allowance shall be payable in accordance with the provisions of this Act.

(2)

Subject to the provisions of this Act, a claimant is entitled to a jobseeker’s allowance if …”. (Emphasis added by me).

It is common ground that he is entitled at least to the basic allowance and the case turns on whether or not he qualifies for the two additional allowances.

In the case of income-based jobseeker’s allowance, the amount payable “shall be” (once again peremptory words) the applicable amount (see section 4(3)) and this applicable amount is the amount or aggregate of the amounts as may be determined in accordance with regulations – see section 4(5).

Regulation 83 of the Jobseeker’s Allowance Regulations 1996 provides that a claimant’s weekly applicable amount shall be the aggregate of:-

“(b)

an amount … in respect of any child … who is a member of his family …

(d)

where he is a member of a family of which at least one member is a child …, [a family premium].”

Pursuant to section 1(3) jobseeker’s allowance is payable in respect of a week. There is power to apportion – see paragraph 5 of Schedule 1 – but the only example we have seen is regulation 77(4) which does not apply here. Absent a provision for the entitlement or the amount payable to be in respect of any period less than a week, it is all or nothing.

In this case entitlement to these additional payments depends upon the child being a member of his family. “Family” is defined in section 35 of the Act to mean:-

“(c)

…a person who is not a member of a married or unmarried couple and a member of the same household for whom that person is responsible and who is a child … “

The supplementary provisions in schedule 1 to the Act provide that regulations may make provision as to the circumstances in which persons are to be treated as being or not being members of the same household (see paragraph 12) and the circumstances in which one person is to be treated as responsible or not responsible for another (see paragraph 13). The regulations prescribing the circumstances relating to membership of the household are in regulation 78, and regulation 77 sets out the circumstances relating to responsibility.

Thus, to succeed the applicant has to show that the child is a member of his family, that is to say, (i) that the child is a member of his household, and (ii) that he is responsible for that child.

The Commissioner, Mr J. Mesher, in his careful and well reasoned decision to which I would pay tribute, even though I do not agree with all of it, decided in paragraph 7 that:-

“In the present case, Heidi and Alisha were undoubtedly members of the claimant’s household throughout the relevant period both under regulation 78(1) and the ordinary meaning of membership of her household. None of the exceptions in the rest of regulation 78 apply. Therefore, no more attention needs to be given to that condition. The crucial condition is that of responsibility.”

No appeal is brought against that part of his decision. He is in any event undoubtedly correct. These children are members of his household and the appeal turns upon whether or not he is responsible for them. More specifically the crucial question is whether regulation 77 applies – or is to be disapplied.

Regulation 77(1) provides:-

“Subject to the following provisions of this regulation, a person is to be treated for the purposes of this Act as responsible for a child or a young person for whom he is receiving child benefit …”

In this case Mrs Hockenjos is receiving and a notional mother taken as a comparator would receive child benefit for Alisha and consequently is or would be deemed (for the purposes of this Act at least) to be responsible for the child. The Secretary of State has conceded that this is discriminatory. That is recorded in paragraph 18 of the Commissioner’s decision:-

“There was a substantial measure of agreement on this issue [of discrimination]. A detailed statistical report was obtained on behalf of the claimant from Sally Holtermann, an economic consultant. What was said to be the central result of the paper, following an analysis of child support data, was that 92% of men who shared the care of their children for at least 104 nights a year could not get child additions in income-based JSA because they did not receive child benefit and 8% of women sharing care could not get additions for that reason. On behalf of the Secretary of State doubts were expressed about the pool for comparison chosen by Miss Holtermann, but it was accepted in the skeleton argument for the oral hearing that there was:

“a statistical discrimination in favour of women in respect of the working of the rules of entitlement to child additions to JSA (IB). The Secretary of State therefore does not challenge the statistics in the report and seeks to defend the case on the grounds of objective justification alone.”

Thus it was necessarily accepted that the effect of making the qualification for personal allowances for children and the family premium in income-based JSA depend on the receipt of child benefit was that there was a considerable difference between the proportion of men in the relevant pool who could qualify and the proportion of women in the relevant pool who could qualify.”

The Commissioner was also prepared to assume that regulation 77(3)(a) was also indirectly discriminatory. For my part, I wholly fail to understand why regulation 77(3)(a) is in any way relevant to this appeal. Regulation 77(3) applies only:-

“In the case of a child or young person in respect of whom no person is receiving child benefit …”

Here it is common ground that child benefit is being received in respect of these children and the problem arises because the mother is receiving child benefit in respect of Alisha. If I have correctly understood the facts, the father is receiving child benefit in respect of Heidi. Thus the conditions which bring regulation 77(3) into play, simply are not met in this case and its provisions can be and should be ignored. The test of where the child “usually lives” contained in regulation 77(3)(a) is the test where no one receives child benefit and it does not apply where child benefit is being received.

Much of the debate has centred on regulation 77(5). It is, therefore, necessary to recite it again:-

“Except where paragraph (4) applies, a child or young person shall be treated as the responsibility of only one person in any benefit week and any person other than the one treated as responsible for the child or young person under this regulation shall be treated as not so responsible.”

It seems to me that the effect of this paragraph is this:-

In the context of article 4, three questions then arise:

The first question surely has to be answered affirmatively. If it is conceded that it is discriminatory to operate the rule in 77(1) in such a way that the person receiving child benefit must be treated as the responsible person, then it must be equally discriminatory to operate the rule in regulation 77(5) in such a way that the person not receiving child benefit is not responsible. These are two sides of the same coin. Regulations 77(5) and 77(1) are inextricably linked because to ascertain for regulation 77(5) purposes whether there is anyone who is to be treated as responsible for the child “under this regulation”, then one is necessarily forced back to regulation 77(1) and there the receipt of child benefit is the determining factor. The statistical evidence establishes that the receipt of child benefit operates discriminatorily against men. It follows in my judgment that this part of regulation 77(5) is as flawed as regulation 77(1).

The Commissioner expressed his view on the second and third questions in paragraph 45 of his decision as follows:-

“Insofar as the effect of regulation 77(5) is to prevent two different people from being treated as responsible for a child for the same benefit period (whether that is a week or a day), there is a link to the discriminatory rule tying responsibility exclusively to receipt of child benefit. However, it seems to me that the effect is amply justified by the principle that the same need should not be met twice by the same benefit. Insofar as the effect of regulation 77(5) is that responsibility for a child must, except in particular limited cases, be attributed for the whole of each benefit week, in my judgment that effect has not been shown to be discriminatory on the ground of sex. Once the discriminatory link to child benefit is removed it seems to me that the rule is neutral in its effect. If it was not, I would be inclined to say that it was within the broad margin of discretion available to member states to say whether a benefit, or some element of it, could be paid to any particular person on a part-week basis or only on a whole-week basis.”

Trying to deal with these questions separately, I grapple first with the concept that only one person is to be treated as responsible as responsible for the relevant child. I leave aside what the position may be if a mother in receipt of child benefit is one applicant for the benefits and someone other than the father, say a paternal grandparent who shares care with her, is the other applicant. I concentrate on the facts before us which relate to competing claims of a mother and father who have a shared residence order in respect of their child. In the Commissioner’s opinion this rule preventing two people being treated as responsible is discriminatory. I agree that is the correct conclusion in the case of parents and need not decide the broader question where a grandparent is involved. The evidence shows overwhelmingly that mothers with child benefit are treated as the responsible parent and fathers are excluded.

Dealing finally with non-apportionment if the benefit cannot be split, then, if this is capable of being elevated into a rule which is capable of standing alone, then it is arguable – indeed the Commissioner found – that it is neutral in its effect. But it is not a freestanding rule. There is no express provision to that effect. It exists only by implication drawn from the provision that the child is to be treated as the responsibility of only one person, in this case the mother. If this part of regulation 77(5) is disapplied - and I later explain why I conclude it must be - there is nothing else in the regulation from which the implication can be drawn. If I am wrong about this, the discriminatory effect of a rule against apportionment must depend on the context in which the rule is operating and in the inevitable context of the benefit being split between parents the question will arise as to whether more fathers than mothers are adversely affected by the non-apportionment rule. The answer must inevitably be the same as was given for regulation 77(1). I am driven to conclude that such a provision would operate so as to discriminate against fathers.

I go first to the law. The synthesis of principle to be derived from such decisions of the Court of Justice as Nolte v Landesversicherungsanstalt Hannover (Case C-317/93) [1995] ECR I-4625, R v Secretary of State for Employment, Ex Parte Seymour-Smith (Case C-167/97) [1999] ECR I-623 and Jorgenson v Foreningen af Speciallaeger (Case C-226) [2000] ECR I-2447 can be stated as follows:-

When Seymour-Smith returned to the House of Lords as reported in [2000] 1 All E.R. 857, 873 Lord Nicholls summarised the position in these terms:-

“Governments must be able to govern. They adopt general policies, and implement measures to carry out their policies. Governments must be able to take into account a wide range of social, economic and political factors. The Court of Justice has recognised these practical considerations. If their aim is legitimate, governments have a discretion when choosing the method to achieve their aim. National courts, acting with hindsight, are not to impose an impracticable burden on governments which are proceeding in good faith. Generalised assumptions, lacking any factual foundation, are not good enough. But governments are to be afforded a broad measure of discretion. The onus is on the member state to show (i) that the allegedly discriminatory rule reflects a legitimate aim of its social policy, (ii) that this aim is unrelated to any discrimination based on sex, and (iii) that the member state could reasonably consider that the means chosen were suitable for attaining that aim.”

I should add three comments before leaving my consideration of the right approach to adopt. First, I do not understand Lord Nicholls to be attempting any more than a summary of the principles to be gleaned from the judgments of the European Court of Justice. Secondly, with regard to the Commissioner’s finding it “very difficult indeed to find a clear and consistent approach in the many judgments of the E.C.J.”, I venture to think the difficulty can be alleviated if, instead of finding “looseness in the use of language”, one realises that compound terms are being used. “Broad/reasonable” margins of discretion, “necessary/legitimate” aims and “suitable/requisite/necessary” means are different ways of saying the same thing. They are the ingredients of a linguistic pot-pourri which give the concepts their distinctively recognisable scent which one has only to sniff at to know. Thirdly, it can never be enough merely to show that the equal treatment principle will be frustrated because then no discriminatory effect can ever be justified. The right to equal treatment is not absolute. A balance always has to be struck between impairing the very essence of the fundamental principle and the right of governments to govern as they see fit. The restriction of the right must satisfy the test of proportionality.

So much for the law. The first task in its application is to identify the social aim. One should start by looking at the evidence. Mr Binns says in paragraph 3 of his witness statement:-

“Income support (IS) and jobseeker’s allowance (JSA) are income-related benefits, designed to provide financial help for people whose income, from all sources, is below a level approved each year by Parliament.”

I would have thought that that sets out the government’s legitimate aim but in terms rather too wide and general. The specific aim was to provide financial help for the family and in respect of the child in circumstances where the parent’s income fell below subsistence level. It is a payment to the parent but for the benefit of the family and the child.

The argument was expanded before the Commissioner. In paragraph 26 he observed that:-

“In her written skeleton argument Miss Lieven stated that the purpose of child additions to income-based JSA is to provide benefit to cover the costs of the maintenance of a child, for which purpose it was reasonable for the Secretary of State to ascertain who has responsibility for a child. … At the oral hearing, when specifically asked to define the social policy aim relied on, she identified it as that the elements of income-based JSA which are linked to the presence of a child in the claimant’s family should be paid to the person who is responsible for the child. She said that was a legitimate aim. I accept that second formulation as specifically related to regulation 77 of the JSA regulations, in the context of the broader aim mentioned in the skeleton argument.”

The criticism that could perhaps be laid at that formulation is that it may be confusing the aim and the means of achieving it. Miss Lieven tended perhaps to define the aim by reference to the means adopted to attain it, namely by linking it to responsibility for the child.

Before us the exploration of exactly what constituted the social aim was further refined and eventually Mr Paines Q.C. accepted the formulation by Mr Drabble Q.C. which I noted as follows:-

“The aim here is to establish a fair and efficient distribution of public funds available to maintain a child within the confines of a subsistence benefit such as jobseeker’s allowance.”

Accepting that as the aim, there was no attempt by Mr Drabble to deny that it was a legitimate target of government social policy to allocate its limited resources in that way. The dispute turns on whether the chosen means were suitable, or, putting it more precisely at Mr Paines’ proper insistence, whether the Secretary of State was reasonably entitled to consider that the means were suitable for attaining the end. So the next step in the analysis is to identify the means adopted.

Within the confines of this case, these means have been utilised: (1) s.35 made entitlement dependent upon responsibility for the child and the regulations were meant to prescribe the circumstances in which one person was to taken as responsible for another; (2) regulations 77(1) and (5) made responsibility depend upon receipt of child benefit; (3) regulation 77(5) deemed only one person to be responsible and (4) regulation 77(5) also provided by implication that the benefit was not to be shared between the parents.

The first does not trouble us. The government is surely entitled to regard responsibility as a suitable criterion for allocating a subsistence benefit for family and children. “Responsibility” may well be gender neutral in that responsibility is a burden for or rather the privilege of each parent.

The battle lines are drawn over the justification for the linking of responsibility to receipt of child benefit. If I may - I hope not unfairly nor incompletely - summarise Mr Paines’ case, he seeks to justify this rule by relying particularly on the following matters: (1) the administrative convenience and cost effectiveness of having a single decision-making process by a specialised central unit; (2) the consistency of the decisions this produces against the ad-hoc and variable nature of the decisions that would be taken by individual benefit offices as was the case until October 1993 when the primary responsibility test was abandoned for income support; (3) the aptness of the child benefit criterion for judging responsibility for a child.

There are, however, overwhelming arguments to the contrary. They include the following. First, far from the chosen means reflecting the social policy aim, it defeats it. According to Mr Binns the scheme was designed to provide a subsistence level of support for those in need, in this case the family and the child through the family premium and the child premium. When the child is living with her father under this shared residence order she is in need at least of the roof over her head, the heating to keep her warm and the food and drink to keep her nurtured. Without it she would be living “below a level approved each year by Parliament.” From what resources is the unemployed father to provide this? Not from his individual allowance of £49.15 because Parliament has ordained that that sum is all a single person needs to keep his own body and soul together. The mother can have no need for the whole of the allowances when for approximately half the time she does not have the responsibility of keeping her child. Administrative convenience and consistency of decision-making would have to weigh a tonne to tip the balance against the weight that justice and fairness always carry in the other pan of the scales.

Secondly, the child benefit test would only be apt for jobseeker’s allowances if like were being compared with like. It is not. Child benefit is a universal non-means tested benefit paid for every child; jobseeker’s allowance is a means tested subsistence benefit. They serve distinctly different purposes.

Thirdly, the test for each is quite different. Child benefit is apparently awarded to the parent who has the greater responsibility. This is clear from paragraph 17 of Mr Binns’ statement and paragraphs 7, 24 and 41 of Mr Sprawston’s. That establishes that in a dispute between parents over entitlement to child benefit, if a father fails to demonstrate that he has the greater share of care, he will not wrest child benefit from the mother and the status quo will not be disturbed. Jobseeker’s allowance on the other hand is payable when the child is a member of the applicant’s family and that requires him simply to establish that he is responsible for the child. The degree of responsibility is not specified. S.35 does not require that one parent must be more responsible than the other. Section 35 does not require that the child spends more time in one household than the other.

The crucial question is whether the Secretary of State could reasonably decide to implement this scheme. Making all allowance for the margin of discretion afforded to him, I nonetheless emphatically conclude that he has failed to justify the discrimination in this case. My reason are (1) he is hardly in a position of strength to argue his case when it is quite apparent that he never addressed the problem of shared care and its impact on fathers. Afterthoughts are allowed but they are seldom convincing. The paucity of the evidence filed on his behalf reflects the barrenness of his argument. (2) The way the scheme operates totally to exclude the father amounts to the frustration of the equal treatment principle. There has to be an element of proportionality about this and when one considers that alternatives are open to operate the scheme in a non-discriminatory way by splitting the benefits between responsible parents, the chosen restrictions of his access to the benefits do seem to me disproportionately to impair the essence of the principle of equal treatment. (3) The aim is to distribute this subsistence benefit not just efficiently but also fairly. To allow a father nothing for the maintenance of the child when he shares care virtually equally is so unfair that no reasonable Secretary of State should countenance it. He was acting unreasonably because he was giving greater weight to administrative convenience when the social aim of his policy was to hold fairness and convenience as closely balanced as possible. A system allowing for apportionment would have achieved that balance.

In my judgment linking responsibility to child benefit cannot be objectively justified.

The next question is whether the rule that only one person is to treated as responsible can be justified. The main justification for this is that the welfare of the child demands it in that it is better to have the limited funds in the hands of one parent, especially when regard is had to the fact that there are capital elements build into the allowances for renewal of clothing etc. No figures were given to support this assertion. We are told that an itemised calculation is made annually. If so, the items of “capital” expenditure can be isolated and a figure for week-by-week living expense calculated. If x% of the allowance represents the cost of a week’s maintenance, it is not that difficult to say the father can have 33%, 40% or 50% of x as may be appropriate on a rough and ready basis depending on the amount of time the child is in his care. That would be fair. It would also more realistically target the interests of the child because his welfare can hardly be promoted by leaving him living with a father who can hardly afford to keep him. In cases of shared care the Secretary of State cannot reasonably justify this rule.

There is another consideration. That notion that only one parent is to treated as responsible for his or her child and the other parent is deemed not to be responsible at all is a total anathema to a family lawyer. A cornerstone of the reforming Children Act 1989 is that where the parents were married to each other at his birth each shall have parental responsibility for the child – see s.2(1). Each may act alone and without the other in meeting that responsibility – see s. 2(7). To be forced to treat only one as responsible where there is a shared residence order in force and in operation is grotesque. It is degrading to fathers who actually – and lovingly – tend to their children. A law so framed is so far removed from reality that it brings the law into disrepute and justifiably fuels the passions of protesting fathers. Both the legal position and the current vociferous protests are factors properly to be taken into account and there is no evidence that they, especially the former, have had any or any adequate consideration. There is no justification for social security law to march out of step with the general law and with the instinctive reactions of reasonable mothers and fathers and this is a further reason why no reasonable Secretary of State should tolerate such a demeaning discrimination against fathers.

In my judgment treating only one of the parents as responsible for a child who resides with each of them for part of the week cannot be objectively justified.

As for the justification of the non-apportionment rule, the scheme is obviously more easily administered if the benefits are not split. But apportionment is not unknown to the system. It happens, for example under regulation 77(4), when the local authority is accommodating a child for part of the week. There is a method in place to deal with that situation. It is said that that exception can be coped with because it does not happen frequently and when it does there is clarity as to the time spend in each place. Shared residence orders or agreements are increasing in popularity but still remain a comparatively rare way of organising the lives of children from broken homes. Residence with one and contact to the other remains the rule. There is no evidence before us as to the scale of the problem for the Department. Shared care does not happen by accident. There will invariably be an order of the court which defines the sharing perhaps not to the minute but probably precisely enough for broad assumptions to be made. If there is no order there will be an agreement between the parents which has been or can be reduced to writing. The time spent with each is more important than who exercises particular aspects of parental responsibility e.g. who takes the child to the doctor or dentist, who arranges for haircuts and so on. It should not be an administratively insuperable task to reach a decision as to the degree of sharing on a broad time basis of say 33%, 40% or 50% or whatever may be appropriate or as must be done for regulation 77(4) purposes. If, as a further refinement, one has to calculate how much of the allowance is for board and lodging and general keep, apportionment of that amount is mathematically simple. If it is thought to be necessary then by all means let the mother keep the “capital” element to add to her child benefit to provide the pot from which to make the “big” purchases of clothing etc., but do give the father something on which to live. The system does not have to be perfect but it does have to be fair. The statement of the Minister, Ms Dawn Primarolo, goes a long way to acknowledging both the defects in and the remedies practicably available for improving the present system. In my judgment and allowing for the broad margin of discretion the Secretary of State is not reasonably justified in maintaining a bar on splitting the benefits between parents who share care. I cannot find that the non-apportionment rule is objectively justified.

In the result, therefore, I agree with Scott Baker L.J. that regulation 77 offends the Directive and although I have expressed my views in my own way, there is nothing in his judgment with which I disagree.

I add, however, that interesting as these arguments are on the justification of having only one responsible parent and no apportionment of benefit, I do not believe that they in fact fall for final determination in this case. When he dealt with the only-one-parent-responsible point, the Commissioner found there was “ample justification” for it but he did so on the assumption that “the same need should not be met twice by the same benefit”, with the emphasis added by me. On the facts of the case before us, however, only Mr Hockenjos is claiming the jobseeker’s allowance. There is no other contender for a share of this benefit. Mrs Hockenjos does not claim it. She is on income support. That is a different state benefit regulated under a different Act although, of course, it serves the same need to provide subsistence benefits for children and family. For whatever reason the systems of jobseeker’s allowances and income support are regulated by separate Acts of Parliament. They appear to be independent. That is demonstrated by the fact that section 3(1)(b) of the Jobseeker’s Act 1995 makes it clear that a condition of eligibility is that the claimant is not entitled to income support. By making separate provision for the entitlement to either income support or jobseeker’s allowance, the government is hoist by its own petard on the facts of this case. In my judgment no question of apportionment of jobseeker’s allowance arises at all because he does not have to share these allowances with anyone. But more on apportionment anon.

This point is made by postulating a father’s claim for these additional jobseeker’s allowances made in the case where the mother has child benefit but is in work. She does not claim income support, only the father is eligible for jobseeker’s allowances, and without it he and his child have to survive below subsistence level for the period that she is in his care. If the child benefit rules are consistently applied, then on the evidence of Mr Sprawson, he would still not succeed in being awarded the child benefit because the status quo would prevail. To be consistent the entitlement to child benefit, which it must be emphasised is a non-means tested benefit, should not change depending on whether the mother is working and the father is not, anymore than they would depend on whether the father is working and the mother is not. It would seem to me to be inconceivable that the Secretary of State could reasonably argue that as the working mother receives the child benefit, she is to be treated as the only responsible parent, with the result that the unemployed father sharing care gets nothing and she, as a working mother, claims nothing. The working mother would not be draining the precious pot from which benefits are paid. Allowing the father’s claim would not be an unfair allocation of this subsistence benefit. Denying his claim in such circumstances would be the antithesis of the aim of the social policy the scheme is supposed to promote. If that is the case for the working mother why should it be different for the mother on income support given that the government has chosen separate systems to administer separate benefits?

I readily appreciate that a much more difficult question would arise if both the mother and the father were contending for the whole or a share of the self-same allowances which would be the case if both parents had been working and both had become unemployed. Neither would then be eligible for income support and both would have to apply for jobseeker’s allowances. Where both are contending for the same benefit the arguments may take on a different complexion. Fortunately that is not the case here and I do not have to decide it.

I begin with Article 4. It is now well settled and common ground that Article 4 is directly effective. That was the judgment of the ECJ in Netherlands v Federatie Nederlandse Vakbeweging Case 71/85 [1986] ECR 3855, 3875:-

“It must be pointed out that, standing by itself, in the light of the objective and contents of Directive 79/7, Article 4(1) precludes, generally and unequivocally, all discrimination on ground of sex. The provision is therefore sufficiently precise to be relied upon in legal proceedings by an individual and applied by the court.”

As set out above, I am satisfied that Mr Hockenjos has suffered discrimination on the ground of sex. Regulation 77 offends Article 4. Because of its direct effect, Mr Hockenjos can wield Article 4 as a shield against the hurt Regulation 77 causes him. There are then, as I see it, two approaches to the proper remedy which will redress that hurt.

The first is to approach the case on discrimination lines. We were referred to two authorities in this connection. The first is Ruzius-Wilbrink v Bestuur van de Bedrijfsvereniging voor Overheidsdiensten Case C-102/88 [1989] ECR 4311. There the Dutch law granted entitlement to a disability allowance of a basic amount known as the minimum subsistence income which was ordinarily calculated with reference to a minimum daily wage provided those seeking the allowance had received income exceeding 15% of the minimum wage. It was, however, also provided that the basic amount was not to be applied if in the year immediately prior to the onset of the disability of the person concerned, he or she did not work for a period to be considered normal in his occupation and so earned less than the basic amount normally applicable. In such cases the basic amount was taken as the average daily income, a figure which was considerably less for part-time workers. There were considerably fewer male than female part-time workers and that amounted to discrimination contrary to Article 4. The court held:-

“20.

It is apparent from the judgment of 4 December 1986 in Case 71/85 Netherlands v Federatie Nederlandse Vakbeweging [1986] ECR 3855 that, in the case of direct discrimination, women are entitled to be treated in the same manner, and to have the same rules applied to them, as men who are in the same situation, since, where the Directive has not been correctly implemented, those rules remain the only valid point of reference. By analogy in a case of indirect discrimination, such as that in the main proceedings, the members of the group placed at a disadvantage, be they men or women, are entitled to have the same rules applied to them as are applied to the other recipients of the allowance.

21.

It must therefore be stated in reply to the second question that if no appropriate measures exist for implementing Article 4(1) of Directive 79/7/EEC and there is indirect discrimination by the state, the class of persons placed at a disadvantage by reason of that discrimination must be treated in the same way and according to the same rules as other recipients of the allowance, such rules remaining the only valid point of reference so long as the Directive has not been implemented correctly.”

The next case Kowalska v Freie und Hansestadt Hamburg Case C-33/89 [1990] ECR 1-2591. There employees who had contracted to work normal working hours were entitled to a severance grant on retirement. Mrs Kowalska’s employer refused to pay her the severance grant on the ground that she had worked part-time which was less than the full normal working hours of 38 hours per week. The court held that a collective agreement like the one at issue which allowed employers to maintain a difference in total pay as between two categories of workers – those who worked a specified minimum number of hours each week and those who, whilst performing the same tasks, did not work that minimum number of hours – led to discrimination against female workers as compared with male workers in cases where a considerably lower percentage of men than women work part-time. The agreement infringed Article 119 of the Treaty. The second question referred to the Court of Justice was whether Article 119 required that part-time employers should be entitled to the severance grant (in proportion to the amount of time worked), the emphasis being added by me. The court held:-

“19.

It is apparent from the judgment [in Ruzius-Wilbrink] that in a case of indirect discrimination the members of the class of persons placed at a disadvantage are entitled to have the same scheme applied to them as that applied to other workers, on a basis proportional to their working time. That ruling applies equally to discriminatory provisions in a collective agreement.

20.

It must therefore be stated in reply to the second question that, where there is indirect discrimination in a clause in a collective wage agreement, the class of persons placed at a disadvantage by reason of that discrimination must be treated in the same way and made subject to the same scheme, proportionately to the number of hours worked, as other workers, such scheme remaining, for want of correct transposition of Article 119 of the EEC Treaty International Law, the only valid point of reference.”

Although we were not referred to it, I was assisted by the decision in Borrie Clarke v Chief Adjudication Officer [1087] ECR 2865 referred to in Rezius-Wilbrink. This case also concerned Article 4 which ought to have been implemented by 22^nd December 1984. In breach of that provision we allowed a discriminatory rule to continue beyond that date. Mrs Borrie Clarke claimed to be entitled to a Severe Disablement Allowance as from that date on the same conditions as men. The court held:-

“9.

It should be noted, as the court held in its judgments of 4 December 1986 in Case 71/85 FNV [1986] ECR 3855 and of 24 March 1987 in case 286/85 McDermott v Cotter [1987] ECR 1453, that standing by itself, and in the light of the objective and contents of the Directive, Article 4(1) is sufficiently precise to be relied upon in legal proceedings and applied by a court. Moreover, whilst Article 5 of the Directive leaves to the member states a discretion with regard to methods, it prescribes the result which those methods must achieve, namely the abolition of any provisions contrary to the principle of equal treatment. …

11.

… Article 4(1) … is sufficiently precise and unconditional to allow individuals, in the absence of appropriate implementing measures to rely upon it before the national courts as from 23 December 1984 in order to preclude the application of any provision of national law inconsistent with that Article.

12.

As is also apparent from the judgments … in FNR and … in McDermott …, it follows from Article 4(1) of the Directive that, as from 23 December 1984, women are entitled to be treated in the same manner, and to have the same rules applied to them, as men who are in the same situation, since, where the Directive has not been implemented correctly, those rules remain the only valid point of reference. In this case, that means that if, as from 23 December 1984, a man in the same position as a woman was automatically entitled to the new Severe Disablement Allowance under the aforesaid transitional provisions without having to re-establish his rights, a woman who was also entitled to that allowance without having to satisfy an additional condition applicable before that date exclusively to married women.

13.

The answer to the question submitted must therefore be that Article 4(1) of Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security could be relied upon as from 23 December 1984 in order to prevent the extension beyond that date of the effects of an earlier national provision inconsistent with Article 4(1). In the absence of appropriate measures for the implementation of that Article, women are entitled to be treated in the same manner, and to have the same rules applied to them, as men who are in the same situation, since, where the Directive has not been implemented, those rules remain the only valid point of reference.”

Approaching the case on discrimination lines, the court’s task is to compare Mr Hockenjos’ position with that of his notional female comparator. That is not Mrs Hockenjos herself. To compare his situation with hers is conceptually wrong and arguments based upon the fact that she has received full allowances (paid, it is to be noted, under a different scheme, namely for Income Support) is strictly speaking nothing to the point. The real question is what would the notional mother receive by way of child and family premiums under the Job Seeker’s Act 1995 and the Regulations made in connection therewith. She, in contrast to Mr Hockenjos, can rely upon and the Secretary of State cannot challenge her reliance upon Regulation 77. It does not operate in a discriminatory way as against her. So her claim is simple and straightforward. She is treated for the purposes of the Act as responsible for the child for whom she is receiving child benefit: Regulation 77(1). Mr Hockenjos is treated as not responsible for the child (Regulation 77(5)) and the notional mother is therefore the only person treated as having that responsibility. She is accordingly entitled to the full allowance. I do not understand that to be challenged by Mr Paines. I cannot see what challenge could be mounted against it.

Applying the above cases, Mr Hockenjos, who is placed at a disadvantage by reason of the discrimination against him, must be treated in the same way and have the same rules applied to him as are applied to the notional mother. Those rules remain the only valid point of reference so long as the Directive has not been implemented correctly. Equal treatment demands that he gets what she gets. It seems to me as deceptively simply as that.

Mr Paines argues that Kowalska compels apportionment. I do not agree. The question referred to the ECJ in that case acknowledged that apportionment of the severance grant in proportion to the amount of time worked by the part-time worker compared with the 38 hours a week worked by the full-time worker was appropriate. Of course it was. In the result men and women who work part-time receive the appropriate proportion of the full amount and there was no discrimination between them. They, male and female part-time workers, could not claim the full grant because Article 119 is only concerned to give equal pay for equal work and this group of workers did not do an equal amount of work compared with their fellow full-time workers. The case before us is totally different. Equality is not achieved by apportioning these premiums in Mr Hockenjos’ case depending on the proportion of the week the child was in his care whilst at the same time allowing a hypothetical mother an unapportioned amount even though she too only had responsibility for the children for part of the week. Mr Paines’ solution is a negation of equal treatment which lies at the heart of Article 4(1).

There is another approach to the remedy available to Mr Hockenjos. As Borrie Clarke makes clear, Mr Hockenjos can rely on Article 4 “in order to preclude the application of any provision of national law inconsistent with that Article”. Regulation 77 is inconsistent with it. Rule 77 must, therefore, be disapplied. I fully appreciate that means, as first expressed in Reg v Secretary of State for Transport, Ex Parte Factortame Ltd. [1990] 2 A.C. 85, 140 and again in I.C.I. v Colmer (Inspector of Taxes) (No. 2) [1999] 1 W.L.R. 2035, 2041, that Regulation 77, indeed the Act itself, has to be read subject to the directly enforceable Community rights. The directly enforceable Community rights in this case are the right not to suffer discrimination on the ground of sex and the right to equal treatment. If and insofar as Regulation 77 offends Article 4, but only insofar as it does so, it is to be ignored. Where does that leave us?

As I began my judgment, Mr Hockenjos is entitled to be paid benefits under the Act if he qualifies for them. He is entitled to the child premium if he can show that his daughter is a member of his family, that is to say is a member of the same household as he is and that he is the person responsible for her. He is entitled to the family premium if he is a member of a family of which the child is a member. So said Regulation 83. The governing definition is of “family” as set out in s.35. As I have pointed out there is no issue about the fact that the child is a member of the same household. The only question is whether Mr Hockenjos is responsible for her. Regulation 77 was supposed to assist in determining that. Regulation 77 has to be disapplied. So we are cast back to the definition in s.35.

What then does “responsible” mean? The context is responsibility for a child who is a member of the same household. One notes that pursuant to Regulation 78 a child can be treated as a member of the same houshold notwithstanding the fact that he is temporarily living away from the other members of his family. “Living” seems to me to be an integral part of the concept with which we have to grapple. It is particularly pertinent to a case like this where the children are the subject of an order of the court made pursuant to s.8 and s.11(4) of the Children Act 1989. Section 8 defines a residence order as an order “settling the arrangements to be made as to the person with whom a child is to live”. That is a state of affairs different from that which exists when a parent has a contact order which requires “the person with whom the child lives to visit or stay with” the other parent. The distinction is between living with and staying with a parent. Section 11(4) allows for shared residence orders by specifying “the periods during which the child is to live in the different households concerned”. There is a certain symmetry between these concepts and those involved in being a member of the same household for s.35 purposes. This has to be carried forward into the meaning to be attributed to “responsible”.

It is much too narrow an approach to limit the idea, as Mr Drabble at times would, to the identification of the adult in the household who is ultimately responsible for the child concerned. Mr Drabble submits that this identification is necessary so that the father is treated as responsible but not an adult child claiming Jobseeker’s Allowance and the additional premiums in respect of a younger sibling in the same household. Even giving the words a wider meaning to convey the ability, the authority and the duty to act independently and make decisions affecting and being accountable for the well-being of the child living in his household does not provide a totally satisfactory answer. Mr Paines is correct to point out that that degree of responsibility might arguably attach if a father was having an afternoon’s contact. A purposive approach would lead to the rejection of that argument. The purpose is to provide the allowance for children living in the household not visiting it. But the question should not become too closely tied to Children Act distinctions between residence and contact because it may be, I do not know for it was not argued, that the additional premiums would properly be paid if a father had the children with him for what is properly called “contact” which amounts to staying contact for a continued period of half the summer school holidays. Each case will necessarily depend upon its own facts.

At the other extreme of Mr Paines’ argument is the submission that the responsibility has to endure for the whole week because the payments made are weekly amounts: see s.1(3) and Regulation 83. The consequence of that argument is, as he accepts, that neither parent will receive anything by way of additional premiums in a true shared residence case where the children spend half the week with one and half the week with the other parent. That surely is an absurd conclusion and the legislature cannot have intended to provide no subsistence level of support to either in those circumstances. This suggests to me that the true level of responsibility lies in the middle ground between that of a few hours contact on the one hand and something less than full responsibility for the whole of the week. Where the Secretary of State has not chosen to determine where that band begins, be it anything over 104 nights a year, the child support point of change, or at three days a week, which is just over 40% of the week or at absolutely equality at 50% of the week, I do not feel disposed to express a view in those terms at all. Each case must depend upon its own facts. In my judgment the words in s.35 connote a parent having responsibility for a child for a not insignificant part of the week. I would leave it to the good sense of the decision makers, and eventually the Commissioner, to set the guidelines and on a case by case basis determine whether a child staying, say from after school on Friday to be delivered back to school on Monday is enough. I would expect him to take account of but not necessarily be bound by the way the arrangement is made, whether by way of residence or shared contact. Staying contact for a week or more may well be enough.

What I am able to say with conviction is that the arrangement in this case clearly is enough. According to the order of the court Mr Hockenjos is responsible for Alisha from Monday to Wednesday of the first four weeks and from Sunday 11 a.m. to Tuesday for the next four weeks and so on and for half the school holidays. It matters not that the order does not define to the minute or to the hour precisely when the daughter lives with her father. No reasonable decision maker applying s.35 could come to any other conclusion than that Alisha was a member of Mr Hockenjos’ household and that he was responsible for her as a member of that household. It would be perverse to find otherwise.

Mr Hockenjos is the only applicant for these additional premiums payable under this Act. No-one else is entitled to a share of these allowances. He has established his entitlement to them whether one approaches that entitlement along the discrimination lines I have set out above or along the lines that he succeeds because Regulation 77 is disapplied. In my judgment he should have them in full.

At a late stage a question arose as to whether or not the Apportionment Act 1870 applied so that, as I understand it, all the Commissioner could order would be a pro rata share of the relevant allowances apportioned in respect of time. Submissions were made off the cuff and further written argument was submitted. This is not very satisfactory but time does not permit more. The Apportionment Act appears in volume 23 of Halsbury Statutes in the volume dealing with Landlord and Tenant, not the most promising place in which to find an Act capable of impinging upon the amount to be awarded under Social Security legislation. I am afraid I do not consider the Act applies at all. Section 2 deals with:-

“All rents, annuities, dividends, and other periodical payments in the nature of income (whether reserved or made payable under an instrument in writing or otherwise) shall, like interest on money lent, be considered as accruing from day to day, and shall be apportionable in respect of time accordingly.”

What is there under consideration is a liability in private law. Rents, annuities, dividends and other periodical payments in the nature of income must be construed as eiusdem generis and a genus is a private law liability.

There seems to me to be another difficulty to its application in a case like this. Section 3 provides that:-

“The apportioned part of any such rent … shall be payable or recoverable in the case of a continuing rent … when the entire portion of which such apportioned part shall form part shall become due and payable and not before …”

If these Jobseeker’s Allowances are paid in advance, then there would be no apportionment. Even if, as I think more likely, the payment is made in arrears, the only award the Commissioner can make is the award prescribed by the Act and the Regulations. Regulation 83 provides for “weekly applicable amounts”. The weekly applicable amount is a fixed sum for each week. Section 1(3) provides that the allowance is “payable in respect of a week”. A weekly sum has to be awarded. How is the Apportionment Act then to apply to it? A week’s allowance is ordered just as a quarter’s rent is payable and that is the amount fixed under the “instrument in writing or otherwise”. Section 3 requires that only the time-apportioned amount is to be paid. Just as the rent has to be fixed so the weekly amount has to be fixed and the apportionment takes place after the amount is due. Does the decision maker award the full amount but the paying officer pay only an apportioned amount? This simply does not work.

Even if I were wrong about all of that I would construe s.1(3) to be an express stipulation that no apportionment shall take place. Where the legislature meant apportionment to take place it expressly so provided, see for example Regulation 77(4). So, in my judgment, the Apportionment Act 1870 does not apply at all in this case.

The result, as I have said, is that Mr Hockenjos is entitled to the payment of the allowances in full. I agree that the result is what Mr Drabble acknowledges to be “counter-intuitive”. I agree that the sensible answer is to apportion the benefits in some way.

As I have already indicated it should not be beyond the wit of man to isolate the amount built into the allowances to cover ordinary costs of board and lodging and keep – the true subsistence figure. Measuring the degree of responsibility should not be made complicated. The order of the court or the parental agreement should be a sufficient starting point. Something more than the 104 nights originally required by the Child Support Agency should be the trigger for apportionment of the benefits. A fairly rough and ready 33%, 40% or 50% split could then be taken. It is, however, for the Secretary of State to undertake that exercise and make the necessary judgments as to where the line is to be drawn. It is not for the court to do so.

I do exhort urgent consideration being given to the need to cater for shared care arrangements in the fair allocation of limited subsistence resources. Ms Dawn Primarolo’s statement on the entitlement to tax credits shows that the Government is alive to the problems. A group of protesting fathers were observers during the hearing of the appeal. On the first day of the hearing some protesters hurled purple flour bombs at the Prime Minister in Parliament. I do not capitulate to protesters nor do I urge the Government to do so but the unfairness of the stance taken by the Secretary of State can and should be eradicated so that at least one plank of this protest can be removed.

In the result I agree with Scott Baker L.J. and with the order he proposes.