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Their Lordships all stressed that this was not a case of discrimination on one of the core or listed grounds and that this might make a difference. PRE |
In R (Carson) v Secretary of State for Work and Pensions [2005] UKHL 37, [2006] 1 AC 173, both Lord Hoffmann and Lord Walker drew a distinction between discrimination on grounds such as race and sex (sometimes referred to as suspect) and discrimination on grounds such as place of residence and age, with which that case... |
But that was before the Grand Chambers decision in Stec. PRE |
It seems clear from Stec, however, that the normally strict test for justification of sex discrimination in the enjoyment of the Convention rights gives way to the manifestly without reasonable foundation test in the context of state benefits. PRE |
The same principles were applied to the sex discrimination involved in denying widows pensions to men in Runkee v United Kingdom [2007] 2 FCR 178, para 36. PRE |
If they apply to the direct sex discrimination involved in Stec and Runkee, they must, as the Court of Appeal observed (para 50), apply a fortiori to the indirect sex discrimination with which we are concerned. PRE |
The reality is that, although the rule does happen to be indirectly discriminatory against fathers, the complaint would be exactly the same if it did not discriminate between the sexes. Ratio |
Mothers who share the care of their children for a shorter period each week while living on subsistence level benefits have exactly the same problem. Ratio |
The real object of the complaint is the discrimination between majority and minority shared carers. Ratio |
It is quite likely that the Strasbourg Court would regard this as another status for the purpose of article 14, because they have taken a broad view of what that entails. Ratio |
But this reinforces the view that they would apply the manifestly without reasonable foundation test of justification. Ratio |
In fact, the appellant did not argue for anything other than the test established in Stec and RJM. ARG |
It is unnecessary for us to consider to what extent the test under the ECHR is different from the test in EU law. Ratio |
EU law requires that, in order to justify indirect sex discrimination, the state has to show that the rule in question is a suitable and necessary means of achieving a legitimate social policy aim which is unrelated to discrimination on the prohibited ground. Ratio |
In choosing the measures capable of achieving the aims of its social and economic policy, the state has a broad margin of discretion, although it cannot frustrate the implementation of a fundamental principle such as equal pay for men and women: see R v Secretary of State for Employment, Ex p Seymour-Smith (Case C-167/... |
The Court of Appeal in this case thought that the two tests would not lead to materially different outcomes and in particular that the Court of Appeal in Hockenjos would have reached the same conclusion under the ECHR as they did under EU law (para 53). Ratio |
Is the rule justified? Ratio |
But the fact that the test is less stringent than the weighty reasons normally required to justify sex discrimination does not mean that the justifications put forward for the rule should escape careful scrutiny. Ratio |
On analysis, it may indeed lack a reasonable basis. Ratio |
This case is different from Stec and Runkee in two important respects. Ratio |
First, they were concerned with non-means-tested benefits; CTC is of course means-tested, though not at subsistence level, and the other benefits to which the appellant was entitled were at subsistence level. Ratio |
And secondly, the justification advanced in each case was the historic need to cater for the disadvantage suffered by women in the workplace, in the first place by allowing them to retire with a state pension earlier than men, and in the second place by giving them a pension to compensate for the loss of their deceased... |
The margin lay in deciding when and how to remove the discrimination. Ratio |
We are not here concerned with the timing of transitional arrangements, but with a considered policy choice which could last indefinitely. Ratio |
The appellants case is simple (and skilfully deployed). ARG |
He is responsible for looking after his children for three days a week. ARG |
He is dependent upon subsistence level benefits: his incapacity benefit is deducted from his income support and his disability living allowance is to meet the particular needs arising out of his disability. ARG |
He therefore has nothing with which to meet the needs of his children while they are with him. ARG |
The mother could agree to share the CTC and the child benefit with him, but she does not have to do so. ARG |
HMRC can give one of them the child benefit for one child and the other the benefit for the other child, but they cannot do this with the CTC. ARG |
The court which made the order in the family proceedings has no power to order the mother to share the CTC with the father: the family courts powers to make periodical payments orders for the benefit of children were removed with the introduction of the child support scheme: see Child Support Act 1991, s 8(3). ARG |
Splitting used to be possible under the fore-runner to income support and under the child tax allowance scheme, so it can be done. ARG |
And in fact it is now possible to share Child Tax Benefit under the comparable scheme in Canada (in Australia, shared carers can each claim the full benefit). ARG |
Comparisons with other European states are not helpful, because of their different approaches to the allocation of parental responsibility after separation and of their very different tax and social security systems. ARG |
The parties have each done a considerable amount of work on the systems in other countries. Ratio |
The respondent has produced a Comparative Survey of Legislative Provisions governing the Allocation of Child Benefits in Shared Care Arrangements and the appellant has produced a Research Note into that survey. Ratio |
Of the 30 countries surveyed, only six provide for splitting child benefits between separated parents; of these, five provide for equal sharing and one provides for sharing in proportion to the time spent caring for the child. Ratio |
The difficulty, as the appellant points out, is knowing what is meant by a child benefit in the particular country and how it fits into their tax and social security systems as a whole. Ratio |
Interesting though this information is, it is hard for us to draw any conclusions from it as to the justification for the UK rule, other than that there is little European consensus about the merits of sharing the care of children, let alone about the merits of splitting state support for them. Ratio |
The respondents case is also simple (and skilfully deployed). Ratio |
The aim of CTC is to provide support for children. Ratio |
The principal policy objective is to target that support so as to reduce child poverty. Ratio |
The benefit attaches to the child rather than the parent. Ratio |
It is paid to the main carer because the main carer bears more of the everyday expenditure for the child and most of the capital expenditure on things such as clothes, shoes, sporting and leisure equipment, school trips and the like. Ratio |
Splitting the benefit would reduce the amount available to the main carer, who is usually the one less well placed to earn income, and might result in neither household being able to afford such items as clothes and shoes. Ratio |
Nor is it obvious how the means test should operate if the award is split. Ratio |
Should it be based on the main carers household income, or on the minority carers household income, or on both carers household income, or a pro rata award to each based on their household income? Unless based on the main carers income, the total amount payable would go down when the minority carers income went up, thu... |
Nor is it clear how the benefit should be apportioned between them, especially as shared care arrangements tend to vary over time, while CTC awards are made for a year at a time. Ratio |
There would inevitably be increased administrative complexity and costs. Ratio |
Given the overall limits on public expenditure, this would be likely to result in less money being available to support children. Ratio |
It would also have knock-on effects elsewhere in the system, for example for those benefits which are pass-ported by receipt of the full rate of CTC. Ratio |
The respondent also points out that the appellant is not attacking the no- splitting rule in every case, but only in cases such as his, where a substantial minority carer is dependent upon means-tested benefits. Ratio |
In other words, he is asking for an exception to be made to an otherwise justifiable rule. Ratio |
The more usual case of shared care is likely to involve a minority carer who is in full time work and a main carer who is not. Ratio |
It is well-established that bright line rules of entitlement to benefits can be justified, even if they involve hardship in some cases. Ratio |
Hence, this rule cannot be said to be unreasonable or manifestly without reasonable foundation. Ratio |
As to Hockenjos, the respondents primary case is that it was wrongly decided. RLC |
Both Scott Baker LJ and Ward LJ based their decisions upon the view that the EU principle of equal treatment could not be frustrated and thus gave no weight to the margin of discretion. RLC |
Arden LJ set out the right test, which was little different from the domestic test of Wednesbury unreasonableness (para 107) but then failed to apply it. RLC |
It was unfair to criticise the Government for not addressing its mind to whether there was a viable alternative, as they clearly had done so when introducing the new CTC scheme. RLC |
It was also wrong for Ward LJ to base his conclusion on the fact that the parents were not claiming the same benefit and thus competing for the same child premiums. RLC |
In fact one was claiming jobseekers allowance and the other was claiming income support, both subsistence level means-tested benefits, to which additional payments for children could be made to one parent only, so the effect of the Court of Appeals decision was a double payment. RLC |
Furthermore, as entitlement was linked to child benefit, once the father had claimed and been awarded the child benefit for one child, he also qualified for the additional allowance for that child. RLC |
The respondents secondary case, if Hockenjos was rightly decided, is that this case can be distinguished, because it concerns a different test under the ECHR, a different benefit, consideration was given to the alternatives and separated parents are competing for the same benefit. RLC |
Discussion Ratio |
I am a little sceptical about the objective of lifting the child from poverty or keeping him or her out of poverty. Ratio |
This is, of course, a laudable aim. Ratio |
But success in achieving it will depend upon how child poverty is defined, rather than upon the actual living standards of real children. Ratio |
Both this government and the last have committed themselves to abolishing or at least reducing child poverty. Ratio |
Precise targets are set out in the Child Poverty Act 2010. Ratio |
But the definitions in the Act all depend upon the relevant income group into which the household where the child lives falls. Ratio |
Thus, for example, for the target reduction of relative low income (in section 3), the household falls within the relevant income group if its equivalised net income is less than 60% of the median equivalised net household income for the year in question (equivalised means adjusted to take account of variations in hous... |
Thus if support is targeted upon only one household, it will be much easier to say that a child has been lifted out of poverty than it would be if the support had to be split between two households. Ratio |
However, the statistical definition of child poverty may reflect a wider truth. Ratio |
If funds are targeted at one household, it is likely that a child living in that household will be better off than he or she would be if the funds are split between two households with modest means. Ratio |
The state is, in my view, entitled to conclude that it will deliver support for children in the most effective manner, that is, to the one household where the child principally lives. Ratio |
This will mean that that household is better equipped to meet the childs needs. Ratio |
It also happens to be a great deal simpler and less expensive to administer, thus maximising the amount available for distribution to families in this way. Ratio |
The rule is also linked to the move from tax allowances and social security benefits into a seamless tax credit system. Ratio |
When child additions to subsistence level benefits were decided on a week by week basis, it was practicable, although not easy, to divide them between two households which were claiming the same or essentially the same benefits. Ratio |
Once the benefit is payable, on a means tested but not subsistence basis, irrespective of the work status of the parents, it becomes much harder to split it between two households who may move in and out of work at different times and whose incomes may be very different. Ratio |
This brings with it all the problems of how to calculate the benefit mentioned earlier. Ratio |
It would also mean that the benefit available to the lower income main carer would go down when the higher income minority carers income went up. Ratio |
The ideal of integrating the tax and social security systems, so as to smooth the transition from benefit to work and reduce the employment trap, has been attractive to policy makers for some time. Ratio |
The introduction of CTC (and working tax credit) was a step in that direction. Ratio |
In my view it was reasonable for government to take that step and to regard the targeting of child support to one household as integral to it. Ratio |
It is also reasonable for a government to regard the way in which the state delivers support for children, and indeed for families, as a separate question from the way in which children spend their time. Ratio |
The arrangements which separated parents make for their children are infinitely various and variable. Ratio |
They depend upon a multitude of factors, such as the childrens ages and preferences, where they go to school, how close the parents live to one another, and what the parents can afford. Ratio |
Most parents can and do sort out these arrangements for themselves. Ratio |
Only a small minority have to have these imposed upon them by a court, and even then they are free to change them if they both want to do so. Ratio |
Some might think that the ideal solution would lie with restoring to the family courts the power to make appropriate orders to deal with such payments, either by ordering one parent to share it with the other, or by ordering a periodical payment to take account of the benefits which one parent receives. Ratio |
Then the order could be properly tailored to the different means available in each household, rather than divided according to an arbitrary criterion of time spent with each parent. Ratio |
It would not make sense to order a mother living on a low income to make a payment to a father living on a high income just because the children spent some of their time with him. Ratio |
The children would need the money more when they were living with their mother than when they were living with their father. Ratio |
But if the circumstances were the other way round, then of course it would make sense to order that the benefit be shared or even ceded entirely to a parent living at subsistence level. Ratio |
The difficult case is where both parents are living at subsistence level, because without the full amount of the benefit neither might be able to provide properly for the child. Ratio |
The less happy one of the parents was to share care with the other, the less likely it is that a satisfactory solution will be agreed. Ratio |
Unfortunately, the advent of the child support scheme has removed the possibility of doing justice from the courts. Ratio |
To restore it would obviously be the more rational solution to the problem under discussion. Ratio |
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