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Neutral Citation Number: 2009 24
Reported Number:
File Number: CTC 2608 2008
Appellant: Humphreys
Respondent: HMRC
Judge/Commissioner: Judge E. Jacobs
Date Of Decision: 16/05/2012
Date Added: 12/02/2009
Main Category: Human rights law
Main Subcategory: article 14 (non-discrimination)
Secondary Category: Tax credits and family credit
Secondary Subcategory: responsible for child and child care credits
Notes: Supreme court decision reported as [2012] AACR 46. Tax credits – indirect discrimination against fathers by payment of child tax credit solely to principal carer – whether objectively justified Two children lived with their mother but had extensive contact with their father who looked after them for at least three days a week. He was in receipt of means tested benefits and disability living allowance. Where parents are separated and so cannot make a joint claim, child tax credit is payable to one person only in respect of each child. Entitlement depends upon a claimant being “responsible” for one or more children. Where there are competing claims, regulation 3(1) of the Child Tax Credit Regulations 2002 provides for a child to be treated as the responsibility of whichever of the parents has “main responsibility” for that child. There were no provisions allowing child tax credits to be shared between separated parents. The father’s claim for child tax credits was refused on the ground that the mother had main responsibility for the children. The father challenged the decision on the ground that the rule restricting entitlement to one household discriminated in favour of women. The Upper Tribunal and the Court of Appeal both decided against him. On further appeal to the Supreme Court it was accepted by HM Revenue & Customs (HMRC) that child tax credit falls within the ambit of Article 1 of the First Protocol to the European Convention on Human Rights and that the rule that child tax credit is payable to one person only in respect of each child discriminates indirectly against fathers because they are far more likely than mothers to look after a child for a smaller number of days a week. Held, dismissing the further appeal, that: 1. 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. 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 (paragraph 15); 2. 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” (paragraph 16); 3. 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 (Runkee v United Kingdom [2007] 2 FCR 178) and indirect discrimination, as in this case; Stec v United Kingdom (2006) 43 EHRR 47 (paragraphs 17 to 21); 4. in all the circumstances the “no-splitting” of child tax credit rule was a reasonable rule for the United Kingdom authorities to adopt and the indirect discrimination was justified (paragraphs 28 to 33).
Decision(s) to Download: CTC 2608 2008-00.doc CTC 2608 2008-00.doc  
[2012] AACR 46bv.doc [2012] AACR 46bv.doc