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Jobseekers' allowance sex bias unlawful


Hockenjos v Secretary of State for Social Security

Before Lord Justice Aldous, Lord Justice Tuckey and Lord

Justice Kay Judgment May 2, 2001

The statutory scheme of the Jobseekers' Act 1995 was to provide protection against the risk of unemployment. The Act therefore fell within the Equal Treatment Directive which prohibited discrimination on the ground of sex, whether directly or indirectly. The Court of Appeal so held in a reserved judgment in allowing an appeal brought by a separated father, Eugen Herman Hockenjos, against the dismissal by Mr Commissioner Goodman on May 2, 2000 of his appeal from the social security appeal tribunal which had dismissed his appeal from the adjudication officer, holding that he was not entitled to an additional amount in respect of his two children who stayed with him for different but approximately equal parts of the week, as they did with their mother who received child benefit.

Article 1 of Directive 79/7/EEC (OJ 1979 L6/24) provides: "The purpose of this Directive is ... the principle of equal treatment for men and women in matters of social security..." Article 3 provides: "This Directive shall apply to: (a) statutory schemes which provide protection against ... unemployment." Article 4 provides: "1 The principle of equal treatment means that there shall be no discrimination whatsoever on ground of sex either directly or indirectly..." Regulation 77 of the Jobseekers' Allowance Regulations (SI 1996 No 207) provides: "(1) ... a person is to be treated ... as responsible for a child or young person for whom he is receiving child benefit." Mr Richard Drabble, QC, for the father; Mr Nicholas Paines, QC and Miss Nathalie Lieven for the Secretary of State for Social Security.

LORD JUSTICE ALDOUS said that the father had two daughters born in 1982 and 1990. He separated from his wife and a joint residence order was made with the result that the children resided with the mother and father for different but roughly equal parts of the week.

The father claimed jobseekers' allowance including an additional amount in respect of the children. The adjudication officer decided that he was entitled to income-based jobseekers' allowance, but that the amount payable was not to include any additional amount for the children, since the father was not in receipt of child benefit and was therefore not to be treated as responsible for them in accordance with regulation 77(1) of the 1996 Regulations.

The father unsuccessfully appealed to the social security appeal tribunal and Mr Commissioner Goodman. The commissioner relied on Jackson v Chief Adjudication Officer (Joined Cases C-63/91 and C-64/91) ((1993) QB 367) and concluded that income-based jobseekers' allowance did not fall within article 3 of the Directive.

In Jackson one of the claimants was a divorced mother with two children who was unemployed and in receipt of income support.

She took up part-time employment but the Income Support (General) Regulations (SI 1987 No 1967) did not permit child-minding expenses to be deducted from her earnings when calculating her income. That resulted in her income support being reduced.

The European Court of Justice held that income support could not be regarded as providing protection against the risk of unemployment and therefore the regulations did not fall within the scope of the Directive.

Shortly after Mr Commissioner Goodman's decision, a similar issue came before Mr Commissioner David Williams (CJSA 1920/1999).

In that case the claimant had become pregnant and it was argued that she had suffered discrimination in the way that jobseekers' allowance operated. Mr Commissioner David Williams concluded that Mr Commissioner Goodman had been wrong to treat jobseekers' allowance as being based on two statutory schemes.

The main issue was whether article 3 of the Directive applied to income-based jobseekers' allowance and turned on the question of whether the statutory scheme for that allowance provided protection against the risk of unemployment.

Mr Paines accepted that contribution-based jobseekers' allowance fell within the Directive. However, he submitted that income-based allowance did not.

Mr Drabble accepted that income-based jobseekers' allowance was a means tested benefit which had incorporated into it elements of income support.

He submitted that Mr Commissioner David Williams was right to hold that there was one statutory scheme in the 1995 Act which provided protection against the risk of unemployment. It was aimed at the unemployed and was designed to provide income to meet the consequences of unemployment. His Lordship accepted those submissions.

Mr Paines submitted that even if income-based jobseekers' allowance fell within article 3 of the Directive, there could not be discrimination in this case within article 4.

Mr Drabble pointed out that there had not yet been any consideration by a commissioner as to whether there had been discrimination. He submitted that discrimination was probable and that the case should be remitted to a commissioner for him to decide the matter after considering the evidence.

Questions of law on discrimination were best decided against the background of the facts. It was arguable in this case that it was discriminatory to link entitlement to the additional amount of jobseekers' allowance to the entitlement to child benefit.

Child benefit was a payment made to the person responsible for the child. It was not means-tested and it could be that more women than men were entitled to receive it.

The additional amount of jobseekers' allowance was a means-tested subsistence benefit. The very difference between the two payments could show that it was not logical to link the two together.

It might be that men were at a disadvantage when claiming for a dependant after separation. It was also possible that women were more likely than men to be the recipients of child benefit. That no doubt reflected, to a large extent, the respective degrees of responsibility.

But it seemed to his Lordship to be arguable that the linking of the entitlement to the additional amount of jobseekers' allowance to the entitlement to child benefit put men at a disability to women both practically and theoretically.

His Lordship would therefore allow the appeal and remit the case to a commissioner to consider the issue of discrimination.

Lord Justice Tuckey and Lord Justice Kay agreed.

Solicitors: Hugh James Ford & Simey, Exmouth; Solicitor, Department of Social Security.