Arguing shared-care cases after Stec

 

At first blush, it may seem that the ECtHR's decision in Stec has opened up a simple route for successfully applying Hockenjos to all shared cases. Stewart Wright suggests that this is not the case and that such arguments remain difficult.

In Hockenjos (R(JSA)2/05), the Court of Appeal held that Mr Hockenjos's directly effective rights under EC Directive 79/7 (the Equal Treatment Directive) had been breached because the child additions rule in the JSA scheme (and more particularly the linking of such additions to the person in receipt of child benefit) indirectly discriminated against him as a man. That was in the context of Mr Hockenjos being what the court called a "substantial minority carer", which meant that he had the children staying with him for at least 104 nights a year. Cases where the staying contact is less than 104 nights a year may fail on this point alone.

In Stec, the Grand Chamber of the European Court of Human Rights ruled decisively (subject to the Price case below) that all benefits, non-contributory included, are "possessions" for the purposes of article 1 of protocol 1 to the European Convention on Human Rights (ECHR): see Welfare Rights Bulletin 188, pp. 8-10). Accordingly, since Stec, discrimination arguments under article 14 of the ECHR can, in theory, be made about means-tested benefit, and so the indirect sex discrimination argument which found favour in Hockenjos could arise under the Human Rights Act (HRA) in respect of benefits other than JSA.

On the face of it, Stec at least removes the potentially difficult article 8 arguments in shared-care cases, which were referred to in Welfare Rights Bulletin 185, pp. 9-10.

Although a successful case, Hockenjos however only has a limited application.

Firstly, it is only of direct application to JSA, as it is only JSA which Directive 79/7 applies to. Accordingly, if the benefit in question is income support, housing benefit or child tax credit then the argument would have to rely on the Human Rights Act (HRA).

Secondly, it only applies to men, as it is only men as a class who are discriminated against by linking entitlement to the child additions to receipt of child benefit. Therefore Hockenjos has no application to women who are substantial minority carers and who have been denied payment of the child additions in their JSA. This is because as a class women are indirectly discriminated in favour of by the JSA child addition rules. This was decided in CJSA/2507/2005 and in any event is arguably correct.

A similar difficulty for women would arise in respect of income support, and potentially also housing benefit and chid tax credit. As stated above, a human rights argument would need to be made here. Broadly speaking, the argument (following Stec) would be that treating the substantial minority carer as, in effect, a single person acted in a discriminatory manner to deprive that person of their possessions (and so was contrary to article 14 taken together with article 1 of the first protocol of the ECHR).

However, both under the ECHR and the HRA the person bringing the challenge has to show that he or she is a "victim" of the discrimination. Again, in this context women as a class (and it is the class or group which one must focus on when considering indirect discrimination) are not the victims of the income support child additions rule, because as a class the rule discriminates in their favour. So an indirect sex discrimination argument could not be made out for a woman.

If sex was not the ground of the discrimination, but instead it was argued that the woman claimant was being discriminated against on the basis of her status as a substantial minority carer, then further difficulties would arise. Even assuming that this is a form of personal status which article 14 of the ECHR would recognise as a valid discrimination comparator, the Court of Appeal's decision in Esfandiari (R(IS)10/06) suggests that discrimination under article 14 will only be made out if the effects on the particular group (i.e. substantial minority carers) are "disproportionately prejudicial". More problematic perhaps is the fact that the status of substantial minority carer is not what the House of Lords in Carson and Reynolds called a specially protected status (such as race or sex), and so the discrimination can be much more easily justified. CJSA/2507/2002 holds that the discrimination against substantial minority carers as a class is justified, essentially on the basis of administrative convenience, and so the HRA claim failed. There is no reason why that conclusion should not read across to IS and HB, and arguably also CTC.

However, if the claimant is a man, but the benefit is not JSA, then the HRA argument is a little more straightforward. As a substantial minority carer he will be the victim of indirect sex discrimination in not treating him as responsible for his children when they are staying with him. Stec then provides an easier route into the HRA argument than that suggested in Bulletin 185 at pages 9-10. But even here the arguments are not entirely free from difficulty.

The first difficulty is that it may be argued that, in the light of the House of Lords' decision in Leeds City Council v Price [2006] UKHL 10, the Court of Appeal's decision in Reynolds (which held that mean-tested benefits are not "possessions" for the purposes of article 1 of protocol 1 to the ECHR) should be preferred by a UK court or tribunal to Stec (which holds the exact opposite to Reynolds). Price lays down a general rule that in the cases of conflict between ECtHR case-law and a decision of a superior court in the UK the inferior UK court or tribunal should follow the decision of the superior UK court. In R(Couronne) v Crawley BC and Secretary of State for Work and Pensions and others [2006] EWHC 1514 (Admin), the High Court said that in the light of Price it was bound to follow the Court of Appeal's decision in Campbell (R(H)8/04 - which itself had followed the decision of the Court of Appeal in Reynolds), to the effect that noncontributory benefits are not 'possessions', notwithstanding Stec. However, it is arguable that the special circumstances of the post-Court of Appeal litigation in Reynolds (to which CPAG was a party) would provide grounds for not following the general rule in Price. If this particular argument is raised by the Secretary of State then advisers may wish to contact CPAG for further advice.

Assuming that this difficulty does not arise, however, the evidence put before the Court of Appeal in Hockenjos arguably should go a considerable way towards showing that it is indirect sex discrimination to treat a man who is a "substantial minority carer" as a being a single person when he has the children staying with him. Following Esfandiari (above) the next step in the argument would be to show that this treatment was disproportionately prejudicial to men, though that may not be too difficult given the tenor and strength of the Court of Appeal's criticisms of so treating substantial minority carers in Hockenjos.

However, the second area of difficulty is trying to asses what approach would be taken to the question of whether the discrimination is justified. In the human rights arena recent case-law has made this question more difficult to answer; though broadly speaking it seems that it may be easier for the government to justify the discrimination. Cases such as Willis (Welfare Rights Bulletin 169, p.14) stated that weighty reasons are needed to justify sex and race discrimination in the benefits system. Although that was a case of direct discrimination, CP/518/2003 holds that the same approach should apply to indirect discrimination cases. However, those cases were decided before the final decision in Stec (Welfare Rights Bulletin 192, pp. 13-14), which may suggest a change of emphasis.

In Stec, the ECtHR set out what it described as the general approach to justification. That is that although in general weighty reasons are required to justify discrimination based on sex (or race), a wide margin of appreciation will usually allowed to national governments when it comes to general measures of economic or social strategy. In such cases, Stec seems to suggest the legislature's policy choice should generally be respected, unless it is manifestly without reasonable foundation.

If that is the correct test (and the ECtHR's judgment in the forthcoming widower's pension cases of White and Runkee may provide the definitive answer), then it may be argued that it is for the man who is a substantial minority carer to show that there is no reasonable foundation for treating him as a single person when he has his children staying with him. The counter argument to this may be that Stec is not the appropriate test, or at least has to be modified, as what is in play is not a general measure of economic or social strategy (such as pensionable age) but rather is a subsistence benefit rule, and so weighty reasons remain to be given for sex discrimination in relation to minimum safety net benefits.

As child additions can no longer be claimed in either IS or JSA, the above arguments would have no application to new claims for those benefits or in respect of claims made since the child additions were abolished.

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