Upper Tribunal (Administrative Appeals Chamber)

 

IN THE UPPER TRIBUNAL Appeal No: CH/1926/2012

 

ADMINISTRATIVE APPEALS CHAMBER

 

Before: Upper Tribunal Judge Wright

 

 

DECISION

 

 

The Upper Tribunal dismisses the appeal of the appellant.

 

The decision of the First-tier Tribunal sitting at Fox Court on 11 November 2011 under reference 173/10/01495 did not involve an error on a material point of law and is not set aside. Its decision therefore stands.

 

This decision is given under section 11 of the Tribunals, Courts and Enforcement Act 2007. 

 

 

 

REASONS FOR DECISION

 

 

Introduction

 

1.                This appeal is concerned with the rule in the housing benefit that, in effect, allows a child in what I will term “an exactly equal shared care” situation to count only as the child of one of his parents for housing benefit (and council tax benefit) purposes. The rule in question is found, at least for present purposes, in regulation 20(2)(a) of the Housing Benefit Regulations 2006 (“the HB Regs” – as the rule is the same for council tax benefit I will refer only to the HB Regs in this decision), which provides:

 

“Where a child or young person spends equal amounts of time in different households….the child or young person shall be treated for the purposes of paragraph (1) as normally living with (a) the person who is receiving child benefit in respect of him….”

 

 

2.               It is not disputed that the effect of this rule for each week in which it applies (per regulation 20(3) of the HB Regs) is that the parent in an exactly equal shared care case who is not in receipt of child benefit for the child cannot include that child in his housing benefit claim, and so will be assessed, if he has no other children, as if he is a single person.  The consequence of this is that he will, for example, only be assessed for housing benefit purposes on the basis of needing to rent a one-bedroom property as opposed to a property with one bedroom for himself and one for his son or daughter when he or she spends half of the week with him: R-v- Swale BC ex parte Marchant (2000) 32 HLR 26 (QBD) and (2000) 32 HLR 856 (CA). A further consequence is that the applicable amount used for assessing entitlement to benefit will not include an amount for the child which will usually result in a lower level of housing benefit (or council tax benefit) being paid.

 

3.               On the facts of this case the appellant has a partner and his daughter living with him and both have been taken into account for housing benefit purposes, but his son for whom he has exactly equal shared care is not taken into account.  However, for the purposes of the argument the issue is the same as under paragraph 2: the son does not count as occupying his home and as part of his family for housing benefit purposes even for the (equal) days or time in the week when he is living with his father.

4.               The argument made by the appellant is that the rule in regulation 20(2)(a) of the HB Regs indirectly discriminates against men (as fewer men than women in exactly equal shared care cases will be the recipients of child benefit), and is therefore contrary to Article 1 Protocol 1 of the European Convention on Human Rights (“the Convention”) when read with Article 14 of the Convention (both provisions having been incorporated into UK law by the Human Rights Act 2000). An argument based on the Equality Act 2010 was not pursued before me.

 

 

Decision in Summary

 

5.               My decision is that although fathers in exactly equal shared care cases are indirectly discriminated against by the child benefit linking rule in regulation 20(2)(a) of the HB Regs, any such discrimination is justified.  Regulation 20(2)(a) of the HB Regs was therefore correctly applied at the relevant time so as to exclude his son from the appellant’s family for the purposes of assessing the appellant’s  entitlement to housing benefit, and the First-tier Tribunal did not err materially in law in upholding the second respondent’s decision to the same effect.

 

6.               As the relevant legislative provisions relating to council tax benefit are identical to those relating to housing benefit, the analysis below applies equally to council tax benefit, though for ease of reading I refer only to housing benefit from now on.  

 

Relevant background – factual   

7.               The appellant at the material time lived in a rental property with his partner and daughter, for whom he was in receipt of chid benefit. By decisions made in August 2010 the London Borough of Richmond-upon-Thames (“the Council”) found that the appellant was entitled to housing benefit from 8 March 2010. The assessment of that entitlement was based on the appellant’s family consisting of himself, his partner and his daughter.  With allowances for all three of them, that gave an applicable amount of £177.22 per week. Without going into the details as to why, it is accepted that the higher the applicable amount figure is the higher the amount of housing benefit a claimant will usually receive.

 

8.               The appellant had asked that his son be included in his family for housing benefit purposes on his March 2010 claim. This was on the basis that he had exactly equal shared care for his son as the son spent 26 weeks of the year living with him and he had a residence order in respect of his son.  None of this is disputed. The Council refused on the basis that the appellant was not in receipt of child benefit for his son. Again, that is not disputed. It is that refusal decision that ultimately is the subject matter of the dispute in this appeal

 

9.               In fact, the appellant began receiving child benefit for his son with effect from 4 October 2010 and the Council then superseded its decision with effect from 11 October 2010 and included the son as part of the appellant’s family from that date.  The practical effect of this was that an additional child allowance was added in to the applicable amount thus increasing the level of housing benefit to which the appellant was entitled with effect from 11 October 2010. This means the period of entitlement in dispute runs only from 8 March 2010 to 10 October 2010. However that is a period of 6 months during which the appellant, on his argument, was denied his full entitlement to benefit for his family.

 

10.            Throughout the period in dispute it was alleged that the son’s mother was neither claiming nor receiving housing benefit.  This point was emphasised before me by the appellant on the basis that this meant that in his case there would be no “double provision” of housing benefit and therefore that meant the discrimination in his case was not justified.

 

11.             The Council’s decision was appealed to the First-tier Tribunal sitting at Fox Court on 9 November 2011 (“the tribunal”).  At that point the Council was the sole respondent to the appeal.  The tribunal upheld the Council’s decision and dismissed the appeal.  The tribunal agreed with and said it was bound by Upper Tribunal Judge Powell’s analysis in CH/2236/2007 (dealt with below). It was, and still is, not disputed that housing benefit is a “possession” for the purposes of Article 1 of Protocol 1 to the Convention and that article was thus sufficiently engaged for the appellant to argue he was being denied an additional child allowance for his son in his applicable amount on a discriminatory basis contrary to Article 14 of the Convention.

 

12.            The tribunal dismissed the appeal on the basis that the appellant had not established that regulation 20(2)(a) of the HB Regs did discriminate against men.  The tribunal took the view that the statistical information provided by the appellant took the matter no further “for the simple reason that it is not possible to extrapolate from this information the number of cases that involved equal (or even approximately equal) care. In other words, it does not relate to the correct group”.  Further, the tribunal was of the view, relying on CH/2236/2007, that even if the statistics showed a significant gender bias the enquiry would need to go further to try and establish the reasons why. It therefore concluded that the appellant had not shown that “he forms part of a particular group which suffers disproportionate prejudice as a consequence of indirect discrimination resulting from the application of regulation 20”.  

 

13.            Upper Tribunal Judge Wikeley gave the appellant permission to appeal on 9 August 2012.  He commented that the Supreme Court’s decision in Humphreys –v- Her Majesty’s Revenue and Customs [2012] UKSC 18; [2012] AACR 46, which had not been available to either Judge Powell or the tribunal, “may suggest that (at the very least) the part of CH/2236/2007 which found that there was no indirect discrimination may need revisiting”. However, Judge Wikeley added “this may not help the appellant if he may then face difficulties on the justification point, given the Supreme Court’s decision”.

 

14.            The Secretary of State was then joined as a party to the proceedings pursuant to Judge Wikeley’s grant of permission to appeal, and it is he, perfectly understandably, rather than the Council, who has borne the main brunt of opposing the appellant’s appeal. 

 

15.            In submissions dated 19 November 2012 the Secretary of State argued that regulation 20(2)(a) of the HB Regs did not contravene Article 14 when read with Article 1 Protocol 1 of the Convention because (i) it had not been demonstrated that the regulation is liable indirectly to discriminate against male housing benefit claimants, and (ii) in any event, any discriminatory treatment is objectively justified. 

 

16.            As to the former – indirect discrimination against men not made out – it was argued that there was a material difference between majority and minority carers of children (as in Humphreys) and exactly equal shared care cases: the Secretary of State accepted that in the former the greater proportion of minority carers are men, but argued that it was by no means self-evident that, of the pool of parents who share care of their child(ren) equally, a greater proportion of women than men are likely to be in receipt of child benefit.  Strong evidence was required, it was argued, to find indirect discrimination, and the Secretary of State emphasised that this would have to show that regulation 20(2)(a) has a “disproportionately prejudicial” effect on men.  It relied in this regard on CH/2236/2007, now titled London Borough of Camden –v- NW and SSWP (HB) [2011] UKUT 262 (AAC) (the “Camden case”).

 

17.            As to the latter – any indirect discrimination found is justified – the Secretary of State relied on (i) his having a wide margin of appreciation or judgment in social policy matters (per R(RJM) –v- SSWP [2008] UKHL 63; [2009] 1 AC 311; (ii) that detailed consideration had been given to all shared cases in the context of the housing benefit scheme after the Court of Appeal’s decision Hockenjos [2004] EWCA Civ 1749; R(JSA)2/05, and it had been concluded that for ease of administration and reasons of cost the existing scheme should be maintained and was justified. 

 

18.            The appeal was then passed to me to decide by Judge Wikeley as he was unable to take the hearing of it.  The appellant represented himself at the hearing and the Secretary of State was represented by Mr Cooper, solicitor. The council neither attended nor was it represented at the hearing before me.

Relevant background – Law

 

19.            I have set out the terms of regulation 20(2)(a) of the HB Regs above  and need not repeat it here. I also do not set out here the terms of Article 14 and Article 1 of Protocol 1 to the Convention or the relevant terms of the Human Rights Act 1998 as these are well know and are not in dispute. What I refer to below is the relevant law on proving indirect discrimination and on justification.

 

20.           The Camden case was also an exactly equal shared care case and also involved regulation 20(2)(a) of the HB Regs. In that case too it was the father who was the appellant and who had no amounts for his children included in his applicable amount.  Judge Powell considered that Humphreys - which at that point had been decided by the Court of Appeal and was being appealed to the Supreme Court – on its facts was far removed from the case before him and “something of a red herring”. The Secretary of State’s argument on proof of indirect discrimination to Judge Powell was on all fours with the argument made here. That argument emphasised that where the father was the minority carer of the child or children it was more likely he would not be the child benefit recipient but where he had equal shared care the less obvious it was that he would not have the child benefit, and so statistical evidence was required to make good the claim. 

 

21.            There was no statistical evidence in the Camden case as to the number of exactly equal shared care men who got child benefit as opposed to equal shared care women who were in receipt of child benefit. However the appellant sought to rely on the evidence presented in Hockenjos showing that 92% of men who shared the care of their children for at least 104 nights a year were not in receipt of child benefit while the equivalent figure for women was only 8%. 

 

 

22.           Judge Powell rejected this argument and accepted the arguments of the Secretary of State. The focus had to be on men and women with exactly equal shared care and not just all carers. The latter group would include the figures relied on in Hockenjos but it was not self-evident that once one got close to, if not at, the point of exactly equal shared care the same statistical bias would occur, and so evidence was needed to substantiate the discrimination claim.

23.           Moreover, even if the statistics showed a significant bias in favour of women getting child benefit in exactly equal shared cases, in Judge Powell’s view “one would need to go further and establish the reasons why” because there may be objective factors unrelated to discrimination on the grounds of sex (para. [36]). I do not follow this last part of Judge Powell’s reasoning, at least insofar as it seems to imply that it was for person alleging the indirect discrimination to establish the reasons why (or, more accurately, the lack thereof). This, in my judgment, is contrary to the case law of the European Court of Human Rights (“ECtHR”) Judge Powell had earlier quoted, namely Hoogendijk –v- Netherlands (Application No: 58641/00) (2005) 40 EHRR SE22, where the ECtHR said:

 

“Although statistics in themselves are not automatically sufficient for disclosing a practice which could be classed as discriminatory under Art.14 of the Convention (see Jordan v United Kingdom: (2003) 37 EHRR 2 at [154], the Court cannot ignore that, according to the results of the research carried out by the Social Insurance Council on the effect of the implementation of the AAW Reparation Act of May 3, 1989 as submitted by the applicant, a group of about 5,100 persons lost their entitlement to AAW benefits on account of failure to meet the income requirement and that this group consisted of about 3,300 women and 1,800 men.

 

As to the Government’s argument that, without further substantiation, these figures cannot be given the significance attributed to them by the applicant, the Court considers that where an applicant is able to show, on the basis of undisputed official statistics, the existence of a prima facie indication that a specific rule – although formulated in a neutral manner – in fact affects a clearly higher percentage of women than men, it is for the respondent Government to show that this is the result of objective factors unrelated to any discrimination on the grounds of sex.  If the onus of demonstrating that a difference in impact for men and women is not in practice discriminatory does not shift to the respondent Government, it will be in practice extremely difficult for applicants to prove indirect discrimination.  As no such objective factors have appeared or have been submitted by the respondent Government, the Court accepts as sufficiently demonstrated that the introduction of the income requirement in the AAW scheme did in fact have an indirect discriminatory effect in respect of married or divorced women having become incapacitated for work at a time when it was not common in the Netherlands for married women to earn an own income from work” (my underlining added for emphasis).

 

 

Thus, if a prima facie case is made out for indirect discrimination based on statistics, it is for the Government – here the Secretary of State – to show that this is as a result of objective factors unrelated to sex.

 

24.           This was also the view of the Grand Chamber of the ECtHR in DH –v- Czech Republic (2008) 47 EHRR 3, and indeed the court there arguably went further.  For example, it said:

 

“In order to guarantee those concerned the effective protection of their rights, less strict evidential rules should apply in cases of alleged indirect discrimination” (para. [186]);

 

“that when it comes to assessing the impact of a measure or practice on an individual or group, statistics which appear on critical examination to be reliable and significant will be sufficient to constitute the prima facie evidence the applicant is required to produce” (para. [188]);

 

“[w]here an applicant alleging indirect discrimination thus establishes a rebuttable presumption that the effect of a measure or practice is discriminatory, the burden then shifts to the respondent State, which must show that the difference in treatment is not discriminatory” (para. [189]); and

 

“[w]here it has been shown that the legislation produces such a discriminatory effect, the Grand Chamber considers that, as with cases in the educational sphere or the provision of services, it is not necessary in cases in the educational sphere to prove any discriminatory intent on the part of the relevant authorities” (para. [194]).

 

25.           Coming back to Judge Powell’s decision, it seems to me that all that was required of the appellant was to produce statistics which on critical examination gave rise to a prima facie case that regulation 20(2)(a) of the HB Regs impacted positively on a clearly higher proportion of women than men.  There was no need if that was established for the appellant in that case to have gone on to establish the reasons why the rule operated in that way[1].  However, it has to be stressed that there was no reliable statistical evidence before Judge Powell concerning how regulation 20(2)(a) affected men and women engaged in exactly equal shared care of their child(ren). The position is different in this appeal, as we shall see.

 

26.           Although not required to do so given his finding that no indirect discrimination had been established, Judge Powell in the Camden case went on to consider whether if there was indirect discrimination it would be justified, and concluded it would be. He concluded:

 

“it is justifiable for a state to provide that, in relation to a specified benefit, only one person shall be responsible for a child in any benefit week.  That is a perfectly understandable rule.  There may well be cases where, as in the present case, it causes hardship.  However, that is frequently the case with clear rules.  So far as entitlement to child benefit on the breakdown of a marriage is concerned, the rule is that it is for the parties to reach agreement between themselves.  If the parties cannot reach agreement a decision has to be made.  That decision will depend on the facts and must be made in a proper manner.  It is obvious that, in many contested cases, arriving at a decision will be extremely difficult”

 

27.            Judge Powell followed his decision in the Camden case in CH/291/2010. He did not consider that the Supreme Court’s decision in Humphreys – which by then had become available - assisted in resolving that appeal. 

 

28.           Lastly in the trilogy of decisions by Judge Powell concerning equal shared care and alleged discrimination in the social security system is CIS/3242/2006, though is was decided before either of the two cases above and concerned a similarly worded rule in the income support scheme linking a child’s membership of a family for income support purposes to the parent who was in receipt of child benefit for that child.  Interestingly, in that case the Secretary of State was prepared to proceed on the basis that the child benefit linking rule did have a disparate affect on men even in a case of exactly equal shared care, and so the focus in that appeal was on whether the discrimination was objectively justified. Judge Powell agreed that any discrimination was justified.

 

29.           The leading case on indirect sex discrimination in the UK social  security scheme and arguments under the Convention is Humphreys: leading both in the sense that it was decided by the Supreme Court but also because it brought together the previous learning of the UK courts and the ECtHR in this area.  It is thus now the key starting point for the analysis of such arguments. 

 

30.           This is subject to one caveat, however. This is that Humphreys does not address what the correct test is for establishing indirect discrimination as it was conceded in that case that the child tax credit rule in issue - which allowed the child tax credit to be paid only to one parent even in shared care cases - did indirectly discriminate against fathers “because experience shows they are far more likely than mothers to be looking after the child for the smaller number of days in the week” (para. [1]). Humphreys was therefore not about exactly equal shared care and it was not about a child benefit linking rule.

 

31.            However, in terms of what in Humphreys was called the “no-splitting” of benefits rule – that is, benefit only going to one parent in shared care cases - and whether the same is justified, it is on all fours with this case.

 

32.           The views of the Supreme Court in Humphreys on justification may be summarised as follows:

 

(i) the proper approach to justification in cases involving discrimination in state benefits is set out in the decision of the Grand Chamber of the European Court of Human Rights (ECtHR) in Stec v United Kingdom (2006) 43 EHRR 47. A difference in treatment is discriminatory if it has no objective and reasonable justification; it must pursue a legitimate aim and there must be a reasonable relationship of proportionality between the means employed and the aim sought to be realised;

 

(ii) in deciding whether discrimination was justified a contracting State was entitled to a margin of appreciation which varied according to circumstances. In relation to general measures of economic or social strategy a wide margin is usually allowed to a State because national authorities are better placed than international judges to appreciate what is in the public interest on social or economic grounds. Accordingly the ECtHR will generally respect the national legislature’s policy choice unless it was “manifestly without reasonable foundation”; and 

 

(iii)         the normal strict test for justification of sex discrimination in the enjoyment of Convention rights gives way to the “manifestly without reasonable foundation” test in the context of state benefits, both in relation to direct sex discrimination  and indirect discrimination.

 

 

In short, if there is indirect sex discrimination in the operation of regulation 20(2)(a) of the HB Regs, it will be justified unless it is manifestly without reasonable foundation.

 

Analysis

 

Indirect discrimination

33.           The difference between this appeal and the appeal considered by Judge Powell in the Camden case is that in this case there is statistical evidence relating to shared care. This evidence is on pages 322-324 and 329-331 and arises in the context of statistics kept by what was then the Child Maintenance and Enforcement Commission in relation to the child support scheme.

 

34.           The evidence consists of data on shared care in two child support schemes, the 1993 and the 2003 schemes. Broadly speaking, the shared care rules allow the “absent parent” or the “non-resident parent” a reduction in the liability they have to meet for the child if the child stays overnight with them over a certain number of nights in a year (i.e. they “share” care with the other parent). The threshold for shared care applying in the 1993 scheme is 104 nights per year and for the 2003 scheme it is 52 nights a year. 

 

35.           As for the 2003 scheme, the evidence does not allow any sophisticated analysis of the gender of the non-resident parent and how many nights in a week on average he or she would have the child to stay overnight.  As a generality it is apparent (see page 323) that in the vast majority of the 2003 scheme shared care cases the non-resident parent is male. However, the figures do not identify what the percentage is in cases of exactly equal, or even nearly equal, shared care. Nor do the figures have anything to say about who gets the child benefit for the child. 

 

36.           The figures for the 1993 schemes do, however, have a greater detail to them.  They are set out on page 324.  The greater detail is that the figures break down the gender of the non-resident parent in relation to the nights the parent with care has the child overnight for 2, 3, 4, 5 or 7 nights a week.  There is no figure for what would equate to exactly equal shared care because it is impossible on a weekly analysis to have a child staying over for 3½ nights in a week.  However, the figures relating to the gender of the non-resident parent where the child stays overnight with the parent with care for 3 or 4 nights a week do show a very marked gender bias in favour of men being the non-resident parents and against them being the parents with care.  However these numbers are crunched, it seems to me that they do show that in near to shared care cases (i.e. where the man has the child with him 3 or 4 nights a week), it is far more likely that the non-resident parent will be the man and far less likely that he will be the parent with care. For example, where the child spends 4 nights with the parent with care only 6.36% of the non-resident parents are female and 93.64% of the non-resident parents are male[2].  

 

37.            Moreover, I cannot see any good basis for holding that different considerations would apply in exactly equal shared care case (i.e. the theoretical 3½ nights a week). Given the impossibility of this test being met in one week, it seems to me likely that the exactly equal shared care case figures are subsumed within the 3 night/4 night child with parent with care figures. In both cases, or in the case of taking the two sets of figures together, the evidence is overwhelmingly in favour of the non-resident parent being male and is overwhelmingly against him being the parent with care, and I can see no reason why the same does not hold true in exactly equal shared care cases[3].

 

38.           What, however, does this tell us about who the recipient of child benefit is, which is the key provision in terms of regulation 20(2)(a) of the HB Regs?  At first the short answer may appear to be very little of a direct nature. However, that would be to ignore the legislation that defines who a “parent with care” is and a “non-resident parent” is under the child support legislation and, in particular, how it defines and identifies such parents in exactly equal shared care cases.

 

39.           The child support schemes require for their operation that in the ordinary case there be a parent with care and a non-resident parent. Section 3(2) and (3) of the Child Support Act 1991 broadly defines the “parent with care” as the parent “with whom the child has his home” and the non-resident parent as the parent who “is not living in the same household with the child”.  However, in a case of exactly equal shared care these definitions do not assist to make one parent the parent with care and the other the non-resident parent, and thus the schemes could fail to have any application to such cases. The schemes therefore deem one of the parents to be the “parent with care” in such situations. As far as the 1993 scheme and this case is concerned this was achieved by regulation 20(2)(b)(i) of the Child Support (Maintenance Assessments and Special Cases) Regulations 1992 (“the MASC Regs”), which provides:

 

 

 

“20.—(1) Where the circumstances of a case are that–

(a) two or more persons who do not live in the same household each provide day to day care for the same qualifying child; and

(b) at least one of those persons is a parent of that child,

that case shall be treated as a special case for the purposes of the Act.

(2) For the purposes of this case a parent who provides day to day care for a child of his in the following circumstances is to be treated as an absent parent for the purposes of the Act and these Regulations–

(a) a parent who provides such care to a lesser extent that the other parent, person or persons who provide such care for the child in question;

(b) where the persons mentioned in paragraph (1)(a) include both parents and the circumstances are such that care is provided to the same extent by both but each provides care to a greater or equal extent than any other person who provides such care for that child”

(i) the parent who is not in receipt of child benefit for the child in question;

or

(ii) if neither parent is in receipt of child benefit for that child, the parent who, in the opinion of the Secretary of State, will not be the principal provider of day to day care for that child”

 

40.           In other words, in an exactly equal shared care case regulation 20(2) (b)(i) of the MASC Regs deems the “non-resident parent” to be the parent who is not in receipt of child benefit and the “parent with care” to be the parent in receipt of the child benefit, and the parents are identified as such under the scheme .

 

41.            Reading this definition then back into the statistics on page 324 has a powerful impact, as it seems to me strong evidence that, as far more “non-resident parents” in exactly equal shared care cases are men than women,  therefore far more of those male “non-resident parents” are not in receipt of child benefit compared to female “non-resident parents”.  In short, the deeming provision tells us that the non-resident parents in exactly equal shared cases in those statistics will be, or are very likely to be, those parents who are not in receipt of child benefit, and that is overwhelmingly men as opposed to women.

 

42.           That, in my judgment, amounts, per DH, to strong prima facie evidence of indirect discrimination against men which then calls for the Secretary of State to either explain it away or justify the discrimination.

43.           However, even if these definitions that lie behind the statistics on page 324 are ignored, an inference may be drawn that with such stark statistics the likelihood may be that the child benefit too would be being paid to the mother. That response may be met with by the counter argument, and this was Secretary of State’s point in the Camden case and here, that the nearer one gets to genuinely equal shared care the less likely it is that the child benefit may be paid to the mother.

 

44.           Even ignoring regulation 20 of the MASC Regs, I have to say that I find this argument unconvincing. The statistics relied on by the appellant show that overwhelmingly the parent with care for a child in an equal shared care situation is the woman and not the man, and one might therefore expect the child benefit is being paid to the woman also.

 

45.           Moreover, and more importantly, and again ignoring regulation 20 of the MASC Regs, it seems to me that the counter argument fails to have sufficient regard to the statutory presumption in favour of women getting child benefit set out in paragraph 3 of Schedule 10 to the Social Security Contributions and Benefits Act 1992 (the SSCBA”). This provides - in terms of priority between persons entitled to child benefit - that where the husband and wife are residing together “the wife shall be entitled”.  Paragraph 4(2) of the same Schedule 10 makes the same provision for unmarried heterosexual couples – “the mother shall be entitled”. Most shared care cases, and exactly equal shared cases, will arise after the couple who were living together with their child(ren) have separated.  The starting point then is that at the point of separation the mother is very likely to have the chid benefit.  At that point the father will be the non-resident parent, as the statistics above show. However, it is also very likely that he will not be in receipt of the child benefit for the child given paragraphs 3 and 4(2) in Schedule 10 to the SSCBA.

 

 

46.           This analysis may not take away the full force of the argument that the closer one gets to exactly equal shared care the less likely it may be that a disproportionately greater number of women than men get the child benefit (though the argument based on regulation 20 of the MASC Regs is a powerful counter against this argument, for the reasons given above).

 

47.            One factor, as Judge Powell stressed when accepting the Secretary of State’s argument on this point in the Camden case, is that exactly equal shared care may suggest a greater degree of cooperation between the parents. However, at least in the case of one child, even co-operative separated parents cannot choose or agree to split the child benefit: one and only one of them can receive it.  Who then would be chosen to get it seem to me at best a neutral consideration, and in cases even with exactly equal shared care there may not even be this cooperation. The more decisive point, it seems to me, is that the starting point is that the woman would be the recipient of the child benefit at the point of separation.  Even ignoring the legislative delay built into passing the child benefit entitlement to the father (see paragraph 1 of the Schedule 10 to the SSCBA), this starting point seems to me to point strongly in support of the argument that fathers in exactly equal shared care cases are far less likely to be in receipt of child benefit when compared to mothers.  This is because, in short: (i) fathers are much more likely to be the non-resident parent, and (ii) the statutory bias in the child benefit scheme means that they are far less likely to be the recipients of child benefit when they become non-resident parents.

 

48.           For both of these reasons – regulation 20 of the MASC Regs and mother bias in the child benefit scheme - I am therefore satisfied that the child benefit linking rule in regulation 20(2)(a) of the HB Regs indirectly discriminates against men and thus, per DH, has to be justified.

 

 

Justification

49.           I am equally satisfied, however, that the discrimination is justified.  I  arrive at this conclusion, in essence, for the reasons given by the Secretary State which, per Humphreys, show in my judgment that the receipt of child benefit rule in regulation 20(2)(a) of the HB Regs is not manifestly without reasonable foundation.

 

50.           The Secretary of State’s evidence on justification is as follows. He begins by saying that after the Court of Appeal’s decision in Hockenjos his officials reviewed the arrangements for shared care cases in housing benefit.  That review “examined the manner in which the parental responsibility test impacted upon both the calculation of a claimant’s excess income and his or her appropriate maximum housing benefit”. A range of options was considered for dealing with shared care cases but it was decided at the end of the review that the present system should be maintained. 

 

51.            This first step is an important consideration in determining whether the justification is manifestly with reasonable foundation: the Secretary of State has at least considered the matter.  Of course when judging justification the test is not whether the Secretary of State says that it is justified but whether it is objectively (i.e. to the court or tribunal) justified. But the fact that the Secretary of State has turned his mind actively to the issue may indicate that there is a rational basis to the justification.

 

52.           One relevant consideration that is apparent from the policy background paper on pages 400-405 is that housing benefit is, save for some very specific exemptions, paid for only one home at a time, but it can vary on a week by week basis (as regulation 20(3) of the HB Regs shows). Another is that the housing benefit scheme is generally to help a person to meet his rental costs for a property he is occupying as his home: it is not a measure for providing a weekly income to claimants or their child(ren) (the latter income needs having been intended to be met since April 2004 under the tax credits scheme  - which itself does not offend against the Convention in shared case cases: Humphreys).

 

53.           These considerations bring to mind Lady Hale’s judgment in Humphreys at paragraphs [29] and [31]:

“However, the statistical definition of child poverty may reflect a wider truth. 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. 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. This will mean that that household is better equipped to meet the child's needs. 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.

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. The arrangements which separated parents make for their children are infinitely various and variable. They depend upon a multitude of factors, such as the children's ages and preferences, where they go to school, how close the parents live to one another, and what the parents can afford. Most parents can and do sort out these arrangements for themselves. 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”

 

54.           I appreciate that in this case of exactly equal shared care the child in question lives equally with both parents and so probably does not have one place where he principally lives. However, the other considerations that found favour with Lady Hale apply equally here: in particular that it is for the State to decide how it targets the social security fund, that administrative convenience and the related costs of administration are relevant factors, and that state support for children can rationally be seen as a separate issue from the way in which children spend their time.

 

55.           A number of these considerations find reflection in the factors relied on by the Secretary of State on this appeal and as justifying the link to chid benefit in regulation 20(2)(a) in the HB Regs.

 

56.           First, although the Secretary of State recognises that it would be possible to split a housing benefit award between the two shared care parents, including exactly equal shared care parents, this would be costly and difficult to administer.  This, as I understand it, is a separate point to the additional cost of awarding full housing benefit to both parents, to which I return below. New and complicated rules would have to be made to address apportionment and more detailed enquiries would have to be made of each parent to identify exactly how much time the child spent with each parent.  Considerable time could then be tied up in housing benefit authorities addressing disputes between the parents as to their respective levels of caring for the child(ren) and changes in the caring arrangements, and that would be likely to slow up the adjudication of housing benefit claims generally.

 

57.            Conversely, tying responsibility for the child to the person who is in receipt of child benefit for the child is simple to administer and easy to understand. It is stressed, moreover, that it has to be borne in mind here that the child benefit linking rule in regulation 20(2)(a) of the HB Regs only applies where there is either exactly equal shared care or where there is a question over which household the child is living in, in which cases the child benefit recipient test avoids any difficult adjudication on who is or is to be treated as having the main responsibility for the child.  In all other cases - that is, those where one parent has the child living with them more often in the week than the other parent and there is no dispute about this – the test of with whom the child is normally living is straightforward to administer.

 

58.           Lastly, the Secretary of State says that to accord double provision of housing benefit for both parents (i.e. paying each parent housing benefit as if they had the children with them for the full week and not just for the proportion of the week the child is actually with them) would be costly and was not a justified use of the UK’s social security  budget.

 

59.           There is considerable force in these submissions on justification; though I remind myself I am not judging what the correct scheme ought to be but the lesser test of whether the current scheme is manifestly without reasonable foundation.

 

60.           I would add to the point concerning apportionment – that is, only paying each parent housing benefit to cover the part of the week the child(ren) is living with the parent – that it is far from clear whether this would  benefit either parent. Such an approach might well have the result that neither parent can meet their full rent and thus neither can “afford” to have the child staying with them, and that brings back to mind Lady Hale’s observation in Humphreys that “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”.

 

61.            Nor do I consider that the force of these justifications is undermined by an argument that apportionment in exactly equal shared care cases would not be difficult and would not involve any detailed enquires.  This presupposes that the exactly equal shared care is an agreed fact between the parents, but very often it may not be and reliance on court orders which set out what ought to happen may be of little relevance if they are not being adhered to and the enquiry has to focus on what is happening in terms of care as a matter of fact on week by week basis.  In any event, as set out in the immediately preceding paragraph, apportionment itself has adverse consequences, and I am not sure this was the result the appellant was contending for generally.

 

62.           The appellant recognised much of the force in the Secretary of State’s argument on justification and accepted that in general regulation 20(2)(a) was justified.  His argument, however, was that it was not justified on the facts of his case because he was not seeking housing benefit to be paid twice or for it to be apportioned.  This was because the child’s mother was not getting housing benefit (or so it was alleged) and so all he was seeking was one (additional) lot of housing benefit in respect of his son. 

 

63.           This argument does not work. It does not work because what has to be justified is the indirectly discriminatory effects of the rule and not its effect in any particular case, though the latter may inform the former.  Further, the justification for the rule is not to be confused with an individual’s remedy in respect of that rule if it has breached his Convention rights (which this rule does not). Or to look at it another way, if the argument is that regulation 20(2)(a) of the HB Regs indirectly discriminates against exactly shared care fathers claiming housing benefit where the mother is not getting housing benefit, that particular category of discrimination has not begun to be made out on the evidence.

 

64.           Given all of the above, in my judgment there is a rational justification for child benefit link in regulation 20(2)(a) of the HB Regs. It has been shown that is not manifestly without  reasonable foundation.

 

Conclusion

 

65.           The appeal is dismissed for the reasons given above. Any error of law the First-tier Tribunal may have made in its approach to establishing indirect discrimination was not material to the decision it made as regulation 20(2)(a) of the HB Regs is justified and so acted to deny the appellant’s son as a member of his family for housing benefit purposes during the relevant period.

 

 (Signed) S. M. Wright

Judge of the Upper Tribunal

Dated 20^th December 2013