Secretary of State for Work & Pensions v Bobezes

Mr Bobezes, a married Portuguese national, came to the United Kingdom as a “worker” pursuant to what is now Article 39 of the E.C. Treaty. Whilst here he became permanently incapable of work; by virtue of Article 2(b) and Article 7 of Commission Regulation EEC1251/70 he retained his rights as a “worker”. Accordingly at the time relevant to this appeal he received severe disablement allowance, child benefit for two children and income support as a supplement to the other two benefits.

He also claimed and received until 10 September 1998 income support dependent child allowance (“the allowance”). The Secretary of State, however, decided that the allowance in respect of Sonia, a step-daughter of Mr Bobezes and Mrs Bobezes’ daughter, should not have been paid for the period from 10 September 1998 to 9 September 2000. The Secretary of State ruled that the amount overpaid, £525, was recoverable under Section 71 of the Social Security Administration Act 1992. The basis of his decision was that Sonia had spent periods with her grandmother in Portugal between August 1998 and November 1998 and then from January 1999 when she attended a course of study in Portugal, returning to her home in England on a number of occasions.

Mr Bobezes appealed to the Appeal Tribunal which revised the decision of the Secretary of State to the extent that “Mr Bobezes shall submit a list of dates within the period 10/9/98 to 3/3/99 when Sonia was (a) in Great Britain (b) in Portugal. Income support for her will only be over-paid and recoverable when her various periods of presence in Portugal respectively exceed 4 weeks.” It is agreed that it is implicit in that order that the Secretary of State could terminate entitlement to support in principle under the Regulation but that the question arose as to the precise dates when payment was not due.

Mr Bobezes appealed to the Social Security Commissioner on the ground that the decision of the Tribunal was erroneous in law because it discriminated against him on the ground of his nationality. It is accepted that paragraph 15 of the Commissioner’s decision accurately summarises the appellant’s argument before him.

The Commissioner having reviewed in detail the domestic and European Community legislation and European case law concluded that; “the claimant is entitled to argue that he is being discriminated against under 7(2) of Regulation 1612/68 (EEC), and that Article 42(2) does not block that right. It follows that I must set aside the decision of the Tribunal”. He accepted that discrimination, even if not obvious, could not be ruled out and referred the matter to the Tribunal to consider whether the claimant could establish discrimination and if he could whether that can be justified. In particular he must have the chance to contend for any period when he cannot claim under domestic law that he is the subject of indirect discrimination under Article 7 of EC Regulation 1612/68 in the application of Regulation 16(5) of the domestic Income Support (General) Regulations 1987 SI 1987 No 1967. He ruled that Regulation 1408/71 is not relevant to this.

In British domestic law income support was available at the relevant time under section 123 of the Social Security Contributions and Benefit Act 1992 and Regulation 17 of and paragraph 2 of Schedule 2 to, the Income Support (General) Regulations 1987. Under Regulation 17 the amount was payable in respect of “any child or young person who is a member of his family” and by section 137(1) of 1992 Act family mean “a married or unmarried couple and a member of the same household for whom one of them is or both are responsible and who is a child or a young person of a prescribed description.” The section defines “child” as meaning a person under the age of 16. Regulation 14 of the 1987 Regulations defines “a person of a prescribed description” for the purposes of section 137 of the Social Security Contributions and Benefits Act 1992 as: “a person aged 16 or over but under 19 who is treated as a child for the purposes of [section 142 of the Social Security Contributions and Benefits Act 1992] (meaning of child for the purposes of child benefit), and in these Regulations such a person is referred to as a “young person””. From 10 February 1982 on her 16^th birthday Sonia was a young person until her 19^th birthday.

Part III of the 1987 Regulations deals with membership of the family. The person responsible for a child is a person who has primary responsibility for the child or, if there is a question as to who has primary responsibility, “the person who is receiving child benefit in respect of him” (Regulation 15). Mr Bobezes was at the relevant time responsible for Sonia under Regulation 15 since he was receiving child benefit for her. By Regulation 16(1) the claimant for income support and any partner and, where the claimant or his partner is treated as responsible under Regulation 15 for a child or young person, that child or young person “shall be treated as members of the same household where any of them is absent from the dwelling occupied as his home”. In the circumstances specified in paragraph 5 of Regulation 16 the provisions of Regulation 16(1) are not to apply to the child or young person who is not living with the claimant and he (a) has been continuously absent from Great Britain for a period of more than four weeks commencing (i) where he went abroad before the date of claim for income support, with that date; “(ii) in any other case, with the date on which he went abroad;….. or (b)….(-f).”

It is contended by the Secretary of State that because Sonia was continuously absent from Great Britain for a period or periods of more than four weeks within the meaning of Regulation 16(5) she is not entitled to be treated as a member of the same household as Mr Bobezes by virtue of paragraph 1 of Regulation 16.

If the facts as to her absences are as the Appeal Tribunal accepted, this on the face of it is correct, but it is contended that this is discriminating against him as a migrant worker so that he cannot be excluded from the allowance by virtue of Regulation 16(5).

Before the Commissioner and on this appeal the Secretary of State contended that this question is to be decided by reference to Council Regulation (EEC) 1408/71, on the application of social security schemes to self employed persons and to members of their families moving within the community, and in particular Article 3 which provides that “subject to the special provisions of this Regulation persons resident in the territory of one of the Member States to whom this Regulation applies shall be subject to the same obligations and enjoy the same benefits under the legislation of any Member State as the nationals of that State.”

As has been seen the Commissioner decided that the question had to be decided under Council Regulation EEC 1612/68 on freedom of movement of workers within the Community and in particular under Article 7 which provides

Miss Sharpston QC on behalf of the Secretary of State has forcefully contended that it is essential that the court should decide under which of the two regulations this question has to be resolved. As a matter of principle since Regulation 1408/71 was adopted later than Regulation 1612/68 it should be applied and the two regulations cannot be applied simultaneously. Further Regulation 1612/68 specifically provides in Article 42 that

Despite these arguments the Secretary of State accepts that if this appeal is allowed Mr Bobezes can seek to pursue his claim under Article 3 of Regulation 1408/71 since that Regulation applies to him and he seeks the benefit under “the legislation of any Member State” namely the allowance under the 1987 Regulation.

Mr Bobezes initially relied on both Article 7 of Regulation 1612/68 and Article 3 of Regulation 1408/71 but at the hearing before the Commissioner he abandoned Article 3 and relied only on Article 7. The Commissioner raised the question whether if neither applied, or in any event, Mr Bobezes could rely on Article 12 read with Article 39 of the EC Treaty. On this appeal Mr Bobezes does not dispute that his claim falls within Regulation 1408/71 both as to his position as a claimant and as to the substance of his claim and he does not dispute that the issue is whether, if the claim falls within both Regulations, Article 42 of Regulation 1612/68 excludes the application of that Regulation and means that only Regulation 1408/71 applies. This, it is said, was held in case C50-99-00 by the Northern Ireland Commissioner purporting to follow but, in Mr Bobezes’ contention, misunderstanding, the European Court of Justice’s judgment in case C-20-96 Snares v Ajudication Officer [1997] ECR-I 605.7. Having reviewed a number of decisions in Mr Bobezes’ skeleton argument it is concluded that he is “entitled to rely on Article 7(2) of Regulation 1612/68 notwithstanding that his claim also falls within Regulation 1408/71.

Despite all these arguments based on the European Court’s authorities the real point for the purpose of this case is that, when considering whether there is discrimination against Mr Bobezes in the application of Article 16 of the United Kingdom Regulation, there is no difference between Article 3 and Article 7 of the respective EC Regulations. Both unequivocally prohibit the different treatment of migrant workers and national workers in the grant and payment of the allowance. It matters not whether that is treated as a condition of employment, a social advantage or a benefit under legislation of the Member State. Mr Maurici having ultimately accepted that the claim could fall under both Article 3 and Article 7 finally recognised the practical reality and he conceded that if the case went back to the Tribunal for the discrimination question to be investigated he would not rely on Article 7 of Regulation 1612/68. Both parties are, therefore, fully agreed that the issue is to be decided under Regulation 1408(71). There is thus no issue between the parties for the court to decide. Despite the Secretary of State’s argument I do not consider that it would be appropriate in the circumstances for the court to review all the authorities and to express an opinion on what is at best a theoretical question with no consequences for the parties to this appeal.

The Secretary of State contended before the Commissioner that the Court of Appeal’s decision in Perry v Chief Adjudication Officer CA [1999] 2CML 439 was fatal to Mr Bobezes’ claim. Before the Commissioner Mr Maurici accepted that on its face this was correct though he reserved the right to argue that Perry was wrongly decided by this court. The Secretary of State said that even if Perry was rightly decided it is distinguishable. Mr Maurici accepts that the Perry point only arises if Regulation 1408/71 does not apply to Mr Bobezes’ claim. Since it is now accepted that Regulation 1408/71 is applicable, and is the only Regulation to be relied on, this question again does not arise and it is not appropriate to review the scope of Perry or its application to the facts in this case. I express no view about that matter.

The third issue on this appeal is whether if Mr Bobezes cannot rely on either regulation he can rely on Articles 12, 17 and 39 of the Treaty in the light of the European Court’s decision in the case of Collins [2004] 2 CMLR 8. Since it is accepted that he can rely on Regulation 1408/71 this question again does not arise and I express no view on it.

The respondent’s cross-appeal challenges the Commissioner’s finding that “discrimination is not obviously there, but that is not to say that the claimant, given the chance cannot establish it”. That according to the Secretary of State means that Mr Bobezes must produce statistical evidence to prove that there was in fact discrimination against him as a migrant worker. The appellant contends that this is an impossible task and in any event is one which he is not required to undertake. It is contrary to the principles set out in the European Court’s judgment in case C-297/94 O’Flynn v Adjudication Officer [1996] ECR 1-2617. In O’Flynn a grant to cover funeral expenses was available, but only in an amount needed for a burial near to the deceased’s home. It did not cover the cost of transporting the body to a distant place where there was no good reason for doing so. The European Court accepted that it was more likely that a migrant worker would wish to be buried near his original home (where members of his family might be buried or might still live). They would be intrinsically less likely to qualify on that ground alone for the funeral grant which was essentially only available for burials in England. That in itself was discriminatory. As the Court put it:

Advocate General Lenz put it bluntly at paragraph 16

In the case of Pinna which is referred to in the judgment in O’Flynn, the Caisse had refused to pay benefits to the children (who stayed in Italy) of an Italian who moved to France. Advocate General Mancini said

The court said

It is to be said that there is nothing new in this approach. This case illustrates the application of a well recognised principle. Thus in Commission v French Republic case C-37/97 [1998] ECR I/5341 the Court said

In Biehl v Luxemburg Case 175/88 [1990] ECR I-1779, where the repayment of employers deductions varied according to whether the taxpayer had been resident in Luxemburg for the whole of the year, the Court said at paragraph 14:

In these cases neither the Advocate General nor the Court has insisted on statistical evidence. It was enough in cases of discrimination based on nationality that the effect of the provision is “essentially” “intrinsically” “susceptible by its very nature” “by its own nature” liable to be discriminatory. These cases are dealing with different statutory provisions and I do not suggest that any of them applies directly to the provisions in this legislation. O’Flynn is a more obvious example of indirect discrimination than e.g. Biehl or Collins but the drift is the same, and it seems to me that the Commissioners and the court are entitled to take a broad approach and to find that indirect discrimination is liable to affect a significant number of migrant workers on the ground of nationality without statistical proof being available. This is of course quite different from the position where discrimination on the ground of sex is alleged and where the discrimination in many cases will not be obvious and so that it is necessary to establish that more women than men are liable to be affected.

The Secretary of State suggested that there is no difference in principle between children of migrant workers and children of parents who came here from the Caribbean or India and who are all likely to stay with family members in their countries of origin for periods of more than four weeks so that they will not be entitled to the payment.

There is some force in this but it seems to me that the proper approach is to compare the children of migrant workers with British children whose families are normally resident here. It is intrinsically likely that significantly more of the former than the latter will be prejudiced by paragraph 16(5) of the Regulation. In view of the greater proximity of the families of European migrant workers than those from the Caribbean or India it seems to me in any event probable that the former rather than the latter are more likely to be discriminated against by Regulation 16(5) in any event.

I would therefore allow the cross appeal. The Tribunal should now proceed, on the basis of the judgments of this Court, to decide whether the discrimination can be justified by the Secretary of State.

I gratefully adopt the account of the facts of and background to the case given by my Lord. I respectfully agree with him that the court should not entertain what were, in the context of this case, the hypothetical issues sought to be ventilated in the Secretary of State’s appeal. That is not just on technical grounds, but also because it became clear in the course of argument that the Secretary of State would wish to deploy whatever might fall from this court in cases thought to be analogous to, but not the same as, that of Mr Bobezes. There was therefore plainly a danger that the court might reach conclusions that were not informed by the proper range not only of legal authority but also of policy considerations.

I respectfully agree with my Lord that the cross-appeal should be allowed. Since we are differing from the tribunal below I venture to add some words of my own.

Mr Bobezes alleges that the provision in regulation 16(5) that excludes from qualification for benefit a child who, although still a member of the same household as the claimant, has been continuously absent from Great Britain for a period of more than four weeks indirectly discriminates on grounds of nationality. That is because the limitation is more likely to disqualify from benefit claimants who are migrant workers than it is to disqualify claimants who are British nationals.

The Secretary of State contends that this allegation can only be made good by statistical analysis comparing the actual incidence of the limitation in the cases of migrant workers on the one hand and British nationals on the other. Mr Bobezes replies that that would present him with an impossible task; but he does not need to undertake it, because the jurisprudence of the ECJ enables him to demonstrate that regulation 16(5) is inherently discriminatory, without recourse to actual figures.

Before embarking on a review of that jurisprudence, it is necessary to recall two general considerations. First, the prohibition of discrimination on grounds of nationality is one of the basic principles of the Community legal order, laid down by article 12 (ex article 6) of the EU Treaty. Second, we are concerned with the rights and interests of migrant workers, who in that capacity have rights in Community law to remain in the state of migration during and after their period of employment, as provided by article 393 (c) and (d) (ex article 48) of the Treaty.

Mr Bobezes relied on two authorities of the ECJ. The earlier, Case 41/84 [1986] ECR 1 (Pinna), concerned an exemption provided to the French Republic in the then article 73(2) of Regulation 1408/71 from the general rule of that Regulation that a worker subject to the legislation of state A was entitled to family benefits under the provisions of state A in respect of his family members residing in (Community) state B. The ECJ held that exemption to be invalid, in that it authorised French legislation that withheld child benefits from residents of France if the children stayed outside France for more than three months in any calendar year. That provision necessarily extended to a migrant worker from, in casu, Italy, whose children either remained behind in Italy or visited that country for periods of more than three months.

The court held that the French legislation, although not expressed in terms of nationality, in fact discriminated against migrant workers. The court reached that conclusion on the basis of its own assessment of the necessary incidents of the position of a migrant worker. Mancini A-G said at paragraph 6.B of his opinion:

The court was therefore persuaded, and without recourse to statistical analysis, that migrant workers, because of their family situation as described by the Advocate-General, were characteristically the category of worker that would be affected by the limitations in the legislation, in a way that would not apply, or at least which could not be demonstrated characteristically to apply, in the case of French nationals. That was necessarily discrimination on grounds of nationality.

Mr Maurici sought to persuade us that the decision in Case 41/84 could be applied directly and without more to our case. I do not agree. The contrast as perceived by the court between the factual position of a migrant worker in leaving his family behind in his country of origin on the one hand; and the likely factual position of an original resident of the state granting the benefits on the other; was relevant to the issue of discrimination because of the circumstances of those claiming the particular benefit in question. The court considered it entirely straightforward that many migrants and few Frenchmen would have dependents outside France. But the provision in our case, because it imposes a more extensive disqualification, in terms of only four weeks absence from Britain, much less obviously has as its characteristic target the families of migrant workers, as opposed to the families of British nationals.

It is therefore necessary to revisit this question in the light of developments in the jurisprudence of the court.

For that, Mr Maurici relied on Case C-237/94 [1996] ECR I-2617 (O’Flynn). The facts were far different from those in our case. A social provision for financial assistance with funeral expenses was held to discriminate against migrant workers by requiring burial or cremation to take place within the territory of the providing state, the court holding, at paragraph 22 of its judgment, that

In paragraph 18 the court surveyed a number of categories of case where conditions imposed by national law, although applicable irrespective of nationality, must be regarded as indirectly discriminatory. Those different categories involved conditions

That affect essentially migrant workers (Pinna being cited as an example)

Where the great majority of those affected are migrant workers

That can more easily be satisfied by national workers than by migrant workers

Where there is a risk that they may operate to the particular detriment of migrant workers.

The court then summarised what it thought to be the overall effect of the authorities. It said in paragraphs 20 and 21 of its judgment:

I venture to draw from those observations that statistical analysis of the actual incidence of a provision as between migrant and national workers, such as is demanded by the Secretary of State, will not be necessary if the court is able to conclude that the provision is “intrinsically liable” (in the French text, “susceptible par sa nature même”) to operate in a discriminatory manner. The court approaches that question by applying the terms of the provision to its likely effect upon migrant workers as compared with nationals of the home state. The court performs that operation using its commonsense and understanding of the general position of migrant workers, as with respect did the Court of Justice in Pinna, Biehl and O’Flynn. That is what this court is equally obliged to do in the present case.

Addressing that question, the Secretary of State pointed out that many British subjects now retain substantial ties with their countries of origin, characteristically in the old commonwealth. They are no less likely to send their children home to see their grandparents, or for other reasons connected with national ties, than was a migrant worker such as Mr Bobezes. Secondly, there are a myriad of reasons why a teenage child might be absent from the UK for more than four weeks, for study, recreation, “gap years” and so on. There was no reason to think that type of displacement was more likely to occur in the case of a migrant worker than in the case of a British national.

I would be minded to accept that latter point, within the limited cases to which it applies. Mr Bobezes himself is to be judged as a migrant worker, established in or at least entitled to remain in this country, and such of his children as accompany him may, ordinarily, be assumed to follow the pattern of behaviour of their British contemporaries who are equally the children of people established here. There is however an extra dimension in the case of a migrant worker, because he can be assumed to be likely to retain ties in his country of origin. Take this very case. The reason for the child’s absence from the United Kingdom was that Mr and Mrs Bobezes considered that it would be advantageous for her to spend a significant period away from influences in her home situation of which they disapproved, and to that end were able to arrange for her to go to live with her grandmother who had remained behind in Portugal. Such an opportunity, and other occasions of prolonged visits abroad, over and above the normal teenage displacements, is much more likely to be available to children of a migrant worker than it is to the children of British nationals.

Nor is the latter point displaced by the argument based on the origins overseas of many British nationals. The comparison for present purposes must be between the totality of migrant workers and the totality of British subjects. Here again no figures are available, or at least have not been put in evidence, but I can certainly take judicial notice of the fact that the proportion of the total of all British subjects who do or may retain significant connexions with a country of origin is still comparatively modest. And it is also relevant to bear in mind the observation of Lenz A-G in O’Flynn, at paragraph 16 of his opinion, that to have assumed United Kingdom nationality suggests that the former migrant now feels primarily linked to the United Kingdom. Since the comparison is with migrant workers who, by definition, have retained the nationality of their country of origin, I have little difficulty in saying, in the language of the court in O’Flynn, that the limitation based on four weeks’ absence of the child from the United Kingdom is intrinsically liable to affect migrant workers more than national workers, and that there is certainly a risk that it will place migrant workers at a particular disadvantage.

These are not particularly demanding tests, and they certainly do not require statistical evidence, or evidence of the actual effect of the provision in practice. It is not, however, a matter of accident that the Court of Justice has adopted that approach. As Lenz A-G pointed out in paragraph 26 of his opinion in O’Flynn, only a broad interpretation of rules about discrimination can

I agree with the judgment of Lord Slynn of Hadley.