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Neutral Citation Number:
Reported Number:	R(JSA)2/05
File Number:	CJSA 4890 1998
Appellant:	Hockenjos v Secretary of State for Work and Pensions [2004] EWCA Civ 1749
Respondent:
Judge/Commissioner:	Judge J. Mesher
Date Of Decision:	21/12/2004
Date Added:	20/12/2005
Main Category:	European Union law
Main Subcategory:	Council directive 79/7/EEC
Secondary Category:
Secondary Subcategory:
Notes:	Discrimination on ground of sex - Council Directive 79/7/EEC - parents with shared care of child - indirect discrimination by linking of JSA child additions to receipt of child benefit - whether objectively justified The claimant was separated from his wife. At the time of his claim for jobseeker's allowance (JSA) his two children resided with him for roughly half the week, but the mother was in receipt of child benefit in respect of both children. The adjudication officer decided that the claimant was entitled to income-based JSA, but that the amount payable should not include any additional amount in respect of the children, because he was not in receipt of child benefit and was therefore not to be treated as responsible for them by the definition in regulation 77(1) of the Jobseeker's Allowance Regulations 1996 (the JSA Regulations). The claimant appealed to an appeal tribunal, which upheld the adjudication officer's decision. The claimant appealed to the Commissioner and the Court of Appeal, arguing that the statutory provisions linking increases in respect of children to receipt of child benefit favoured mothers over fathers and therefore contravened the anti-discrimination conditions in Directive 79/7/EEC. The Court of Appeal found that income-based JSA was within the scope of the Directive (see R(JSA) 1/05) but remitted the case to the Commissioner to consider the issue of discrimination. The Commissioner held that regulation 77 was indirectly discriminatory and not objectively justifiable in so far as (in regulation 77) it linked entitlement to increases in respect of children to receipt of child benefit, but held that the regulation was not indirectly discriminatory and/or was objectively justifiable in so far as it provided (in regulation 77(5)) that only one person could be eligible for the increases in respect of any child in any week and (in regulation 77(3)(a)) that, in the absence of a claim for child benefit, the person entitled to the premium should be the person with whom the child usually lives. The claimant again appealed to the Court of Appeal and the Secretary of State cross-appealed, arguing that the Commissioner's decision should be upheld on additional grounds. Held, allowing the appeal and dismissing the cross-appeal, that: 1. paragraphs (3)(a) and (5) of regulation 77 in the context of regulation 77 as a whole discriminate against men since they are inextricably linked to the discrimination against men in regulation 77(1) and prevent appropriate subsistence being paid to substantial minority carers (paragraphs 68 to 71, 100 and 152 to 155); 2. in creating a scheme which forced parents to live substantially below subsistence level and failing to explore alternatives that might achieve his legitimate aim with the necessary balance of fairness and efficiency, the Secretary of State had not discharged the burden of establishing justification (R v Secretary of State for Employment ex parte Seymour-Smith (Case C-167/97) [1999] ECR I-623 followed) (paragraphs 47, 63,113, 168 and 171) 3. the effect of the Directive was that the offending parts of regulation 77 could not be applied to the claimant or to others in his position, although they remained applicable where they did not operate in a discriminatory fashion (paragraph 77); 4. the Apportionment Act 1870 did not apply to the case and the result of the disapplication of regulation 77 was that the claimant was entitled under section 35 of the Jobseekers Act 1995 to the full increase to his income-based JSA in respect of the children (paragraphs 92, 125 to 26, 178 and 195 to 200). Note: the House of Lords refused the Secretary of State's petition for permission to appeal.
Decision(s) to Download:	R(JSA) 2 05 bv.doc