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UK Social Security and Child Support Commissioners' Decisions |
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You are here: BAILII >> Databases >> UK Social Security and Child Support Commissioners' Decisions >> [1990] UKSSCSC R(G)291 (03 May 1990) URL: http://www.bailii.org/uk/cases/UKSSCSC/1990/R(G)_291.html Cite as: [1990] UKSSCSC R(G)291 |
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Mrs. R. F. M. Heggs CG/35/1988
14.7.89
CA (Mustill, Nourse and Butler - Sloss LJJ)
31.7.90
Discrimination on grounds of sex - invalid care allowance overlapping with claimant's husband increase of invalidity benefit - whether discrimination contrary to Council Directive 79/7 EEC
The claimant's husband was in receipt of invalidity benefit including a dependency increase of the claimant. She worked part-time and her earnings were within the limit for such an increase. She then gave up work to look after her father. She claimed invalid care allowance. Under regulation 10 of the Overlapping Benefit Regulations the dependency increase fell to be adjusted, and arrears of invalid care allowance payable to her were reduced by the amount of the increase of invalidity benefit already paid to her husband. The Commissioner held that the application of the Overlapping Benefits Regulations gave rise to indirect discrimination on the grounds of sex but that this was objectively justifiable and not in breach of Article 4(1) of EEC Directive 79/7.
On 7 March 1991, the Court of Appeal dismissed an appeal by the claimant and held that:
the Overlapping Benefit Regulations had the effect of making the increase of the husband's benefit on account of the claimant's dependency not payable because the claimant was receiving invalid care allowance. That was not discriminatory as regards the dependent claimant because it was the husband and not the claimant who lost the benefit.
" … The offset claimed by the adjudication officer is a result of the combined effect of regulation 10 of the Social Security (Overlapping Benefits) Regulations 1979 (SI 1979 No. 597) and regulation 6 of the Social Security (General Benefit) Regulations 1982, and it is accepted on behalf of the claimant that these regulations, if read without reference to Council Directive 79/7 EEC (Equal Treatment in matters of Social Security) do provide for a complete offset. However, it is contended that once the effect of the Directive is taken into account, it becomes clear that to provide for a complete offset is to indirectly discriminate against women who were, before they began to care for the invalid in respect of whom they are entitled to invalid care allowance, part-time workers earning wages which were disregarded when calculating the relevant dependants addition for invalidity benefit …"
"The tribunal is satisfied that the benefits involved in this case comes within the scope of Article 3(1)(a) of the Directive. In arriving at their decision the tribunal had regard to Drake v. Chief Adjudication Officer.
It is not contended by the claimant's representative that there is direct discrimination on grounds of sex but that there is indirect discrimination on the grounds of sex because the setting off of one benefit against the other is more unfavourable to women than to men and is not objectively justifiable. It is argued and it is accepted by the tribunal that as part-time earnings are disregarded in calculating increase of invalidity benefit and because there are many more women who are in part-time employment than men in deducting increase of invalidity benefit from invalid care allowance women are treated less favourably than men. In arriving at this conclusion the tribunal had regard to the opinion of Advocate General Mancini.
From the evidence presented both by [the claimant] and as shown in Parliamentary Questions and Answers letter showing part-time employment rules and the extract from the employment Gazette March 1987 it is accepted that [the claimant] was a part-time low paid worker, because she ceased work to look after her father and that more women are low paid part-time workers and dependants than men.
The final question is whether even if the rule requires the offsetting of one benefit against another predominantly affects woman is it justifiable. The tribunal do not think that it is justifiable for the reason that if it had not been necessary for the claimant to give up her job to look after her father, she would have been allowed to retain her wages and the increase of invalidity benefit would still have been payable. Furthermore invalid care allowance was to assist the claimant to look after her father, whereas increase of invalidity benefit was to assist the husband to provide for his wife as a dependant. The two benefits were not in the opinion of the tribunal to cover the same contingency. The tribunal find that there is indirect discrimination in this case and therefore uphold the claimant's appeal."
"The purpose of this Directive is the progressive implementation, in the field of social security and other elements of social protection provided for in Article 3, of the principle of equal treatment for men and women in matters of social security, hereinafter referred to as 'the principle of equal treatment'."
(i) Article 2 provides:
"This Directive shall apply to the working population including self-employed persons, workers and self-employed persons whose activity is interrupted by illness, accident or involuntary unemployment and persons seeking employment and to retired or invalid workers and self-employed persons."
(ii) Article 3(1)(a) states that the Directive shall apply to:
"statutory schemes which provide protection against the following risks: sickness, invalidity, old age, accidents at work and occupational diseases, unemployment;"
(iii) Article 4(1) provides so far as relevant to the present appeal:
"The principle of equal treatment means that there shall be no discrimination whatsoever on ground of sex either directly or indirectly by reference in particular to marital or family status, in particular as concerns:
…
- the calculation of benefits including increases due in respect of a spouse and for dependants and the conditions governing the duration and retention of entitlement to benefits."
(iv) Article 5 provides:
"Member States shall take the measures necessary to ensure that any laws, regulations and administrative provisions contrary to the principle of equal treatment are abolished."
(v) Article 7 provides so far as relevant to the present appeal:
"1. This Directive shall be without prejudice to the right of Member States to exclude from its scope:
(a)-(c) ...
(d) the granting of increases of long-term invalidity, old age, accidents at work and occupational disease benefits for a dependent wife;
(e) ...
(vi) Article 8(1) provides:
"Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive within six years of its notification. They shall immediately inform the Commission thereof."
[This period expired on 22 December 1984].
(vii) Article 8(2) provides:
"Member States shall communicate to the Commission the text of laws, regulations and administrative provisions which they adopt in the field covered by this Directive, including measures adopted pursuant to Article 7(2)."
"Indirect discrimination arises where:-
(a) the complainant proves a demographic point, namely, that the practice or enactment complained of, although apparently sexually neutral, in fact has a disproportionate impact on one sex; and,
(b) the author of the practice or enactment is unable to establish that the practice or enactment complained of can be explained by objectively justified factors unconnected with the discrimination on grounds of sex-see the judgment of the Court of Justice of the European Communities in the case of Bilka-Kaufhaus GmbH v. Karin Weber Von Hartz [1986] 1 RLR 317."
Date: 14 July 1989 (signed) Mrs. R. F. M. Heggs
Commissioner
The claimant appealed to the Court of Appeal. The decision of the Court of Appeal follows.
Mr. R. Drabble (instructed by the Warrington Community Law Centre) appeared on behalf of the Appellant.
Mr. M. Kent (instructed by the Solicitor to the Department of Social Security, London WC2A 2LS) appeared on behalf of the Respondent.
LORD JUSTICE MUSTILL: Mrs. Mildred Jones appeals against the decision of the Social Services Commissioner, Mrs. R. F. M. Heggs, given on 14 July 1989, reversing a decision of a social security appeal tribunal, which had in turn allowed an appeal by Mrs. Jones against the refusal by the adjudication officer of her claim for invalid care allowance.
This is an appeal about social security benefits and sex discrimination. Several issues arise for decision, all difficult and some of general importance. In only one respect do they involve the interpretation of any legislative provision, namely a directive of the Council of the European Communities. There is no dispute between the parties about the meaning and effect of the one Act of the United Kingdom Parliament and the four statutory instruments which, if valid under European law, create and regulate the appellant's right to benefit. Nevertheless, I believe that a statement of the issues would be almost unintelligible without some legislative scene-setting. Unfortunately, the domestic primary and delegated legislation is hard to penetrate for a non-specialist, not because it is poorly expressed, but because the topic is broad and complex, and the legislation has to create manifold and interlocking benefits, conditions, exemptions, limits, enhancements, reductions and the like. The resulting patchwork has been built up by accretion and ad hoc modification over the decades. Simply to make the present proceedings manageable it is necessary to isolate those provisions which are most directly in point, but there are risks involved, not only because over-simplification may simply lead to technical mistakes, but also because, if the appellant's contentions are right, the court will be required to examine the policy underlying one crucial part of one regulation, an activity which cannot be safely undertaken (so far as it can be undertaken at all in any way which holds intellectual water) without some perspective of the broader social context of the entire field of social services. Nevertheless the task must be attempted.
We are concerned here with four types of benefit, payable to four types of individual.
A. Invalidity Pension
This is a contributory benefit, which begins to be payable to claimants who have been incapable of work for longer than the maximum period of entitlement to sickness benefit. [Sections 12(1)(c) and 15 of the Social Security Act 1975 ("the Act").]
B. Pension Increase
Where an invalidity pension is payable to a man who is residing with his wife or contributing to her maintenance the weekly rate of his pension is increased, subject to certain conditions. [Section 45(2) of the Act.]
During the period in question the amount of increase varied. At the end of the period it was £23.75 per week [para. 2 of Part IV of Schedule 4 of the Act]. For ease of reference it is convenient to treat this as the relevant figure.
One of the conditions for the payment of the pension increase is that the wife does not earn from employment more than an amount which at the relevant time was £31.45 [regulations 8(1)(a) and 8(2) of the Social Security Benefit (Dependency) regulations 1977, SI 1977 No. 343, read with para. 1(a) of Part 1 of Schedule 4 of the Act].
I pause to note three features of the pension increase under section 45:
(There is, however, a provision in section 47 which seems to me to produce an effect which so far as material is mutatis mutandis the same in respect of a husband dependent on a pensioner wife. But this was not explored in argument and my opinion on this is only provisional.)
C. Attendance Allowance
Subject to certain conditions a person who is so severely disabled physically or mentally that by day or night he requires frequent attention in connection with his bodily functions or continual supervision in order to avoid substantial danger to himself or others is entitled to an attendance allowance. (Section 35(1) of the Act.)
This is a non-contributory benefit. (Section 34(1)(a) of the Act.) The rates of benefit are immaterial for present purposes.
D. Invalid Care Allowance
This allowance, which I will call "ICA", is payable to a person in respect of any day on which he is regularly and substantially engaged in caring for a severely disabled person, in respect of whom an attendance allowance is payable. (Section 31(1) and (2) of the Act.)
The following features of ICA must be noted.
For ease of reference I will call the persons to whom these various benefits relate the "invalid pensioner", the "dependent wife", the "disabled person" and the "carer", respectively.
This is not the only legislative provision material to the present case, for even a glance at the subject matter of the Act, quite apart from other legislation under which benefits are payable, is sufficient to show that there will be many instances in which a person will be the subject of more than one benefit: such benefit being payable either to that person, or to someone else because of that person's existence. These situations are the subject of the overlapping Benefits Regulations, SI 1979 No. 597. This daunting instrument need not be explored in detail, and I will not attempt to do so, especially since our attention has been directed solely to regulation 10. I must however say something about its general shape, and draw attention to one important feature, before describing regulation 10, which is the genesis of the present appeal.
As I understand them the regulations set out to deal with the following types of situation:
As one would expect, the regulations deal differently with different instances of overlapping, no doubt in accordance with Ministerial perceptions of fairness and also the necessity to ensure that certain claimants do not, by drawing too deep on a purse which is not bottomless, unduly diminish the funds available to others equally in need. Thus, the regulations variously provide that the existence of one benefit shall annul the right to the other: or that they are both payable in full; or that they are both payable subject to an aggregate limit; or that one benefit is payable, but is deducted from the other. In the case with which we are concerned here, where a dependency benefit is payable to A in relation to B, and a personal benefit is payable to B, regulation 10(2) provides that the dependency benefit shall be reduced or extinguished by the amount of the personal benefit.
Before leaving these regulations, there is one particular aspect of them which is worth attention; namely that there are certain measures to deal with overlapping which not only might be taken to bear harder on women than on men, but which apply exclusively to women, simply because one or both of the benefits which overlap can by their nature be payable only to women. Thus we have:
(a) Overlapping invalidity pension and widows pension both payable up to a limit. (regulation 3.)
(b) Overlapping earnings-related addition to widow's allowance and benefit referable to contributions of husband: deduction of former from latter, subject to proviso. (regulation 5(2).)
(c) Maternity allowance overlapping training allowance: latter deducted from former. (regulation 6 and Schedule 1.)
(d) Widow's benefit and unemployability supplement, industrial death benefit or war pension death benefit: latter deducted from former. (regulation 6 and Schedule 1.) I shall return to these provisions at a later stage.
THE FACTS
We now come to the circumstances of Mrs. Jones' claims for benefit. These arise from the sad fact that two of her close relatives became seriously ill. The chronology as stated by her in evidence was as follows. From 1962 to 1980 she was employed, latterly in the licensed premises managed by her husband. In 1980 Mr. Jones became ill and began to receive invalidity benefit. He gave up the licensed premises. Mrs. Jones continued to work, briefly full-time and then part-time. In 1983, Mrs. Jones' father, Mr. Fellowes (now deceased), also became ill, and received attendance allowance at the lower rate. In 1985 he began to receive it at the higher rate. Mrs. Jones was at that time receiving £17.34 per week for her part-time work, but she then gave up work to look after her father.
Thus we find that, adopting the terminology suggested above, Mr. Jones was the invalid pensioner and Mrs. Jones his dependent wife. This being so, if these had been the only persons involved, Mr. Jones would have been entitled to receive his invalidity pension, augmented by the pension increase referable to his dependent wife. This would not be subject at any time to a deduction on account of Mrs. Jones' earnings, as these were below the earnings limit of £31.45.
This simple situation became more complicated when the late Mr. Fellowes became a disabled person and Mrs. Jones became his carer. On the face of it this would mean that Mr. Fellowes would receive an attendance allowance and Mrs. Jones would receive in her own right an invalid care allowance. Although her earnings of £17.34 would have been a bar to recovery in view of the low earnings disregard if she had gone on working, in fact she did not continue to work, so the earnings limit never applied.
Thus there is no doubt and it has never been disputed that Mrs. Jones qualified in her own right for a personal benefit in the shape of ICA, and that her husband was entitled to a dependency benefit relating to her dependency, namely a pension increase. Nor has it ever been disputed that, since Mrs. Jones was thus the subject of benefits which fell within regulation 10 of the Overlapping Benefits Regulations, if the British legislation alone is regarded, the effect of regulation 10 is to cancel the latter entitlement, since the amount of Mrs. Jones' ICA (£23.75 per week) was exactly equal to the amount of the pension increase attributable to her dependency on Mr. Jones.
The result should therefore have been that Mr. Jones received no pension increase whereas Mrs. Jones received her ICA in full. In practice this did not happen, since Mr. Jones claimed and received the pension increase before Mrs. Jones made her claim for ICA. The need which would thus have arisen for the Department to recover the total sum paid from Mr. Jones and pay it out again to Mrs. Jones was however forestalled by another statutory instrument (The Social Security (General Benefit) regulations SI 1982 No. 1403), which has the effect of creating an off-set between the overpaid pension increase and the arrears of the ICA. (The regulations have now been repealed, but still govern this case.) At this point a curious complication enters the scene. The mechanism employed by regulation 6, in cases where it turns out that dependency benefit has continued to be paid when, if a claim for a personal benefit had been made more promptly the dependency benefit would have been withheld, is to treat the dependency benefit "as having been properly paid" and to reduce or withhold the personal benefit pro tanto.
The result is therefore to reverse the position which would have existed if the claims had been made simultaneously i.e. that Mr. Jones would have lost his pension increase and Mrs. Jones would have received her ICA and produce a situation where Mr. Jones keeps his pension increase and his wife loses her ICA. I am confident that in the overwhelming majority of cases this sensible administrative short cut would make no difference at all, and but for the European dimension it would have made none here, since the Jones' family income was wholly unaffected. But in the present case the anomaly is not trifling, as will appear.
THE APPELLANT'S COMPLAINTS
On the facts stated it is clear the Jones/Fellowes family unit is worse off financially than if either:
(a) Mrs. Jones had stayed at work and someone else had been persuaded to look after her father at the rate of £23.75 for a 35-hour week; or
(b) the Minister had not included regulation 10(1) in the Overlapping Benefit Regulations. In the former event the pension increase would have been paid without abatement, since the dependent wife and the carer would not have been the same person; the benefits would not have overlapped; and Mrs. Jones would have kept her part-time earnings. In the latter event Mrs. Jones could have left work and more than made up the loss by receiving her ICA.
I believe that many, although certainly not all, of the difficulties of this case arise from the assumption that it is sufficient to establish a hardship, in the sense that receipts which are already small are further reduced in consequence of the legislation, and to proceed at once to the question of discrimination. In my judgment one must be more circumspect, and identify precisely what prejudice the legislation under attack is alleged to have caused to Mrs. Jones, and to have caused to her as a woman.
In the decisions of the tribunal and the Commissioner, and in the written and oral arguments addressed, this prejudice has from time to time been variously identified as:
(a) the loss to Mrs. Jones of her part-time earnings,
(b) the loss to Mrs. Jones of her ICA, and
(c) the loss of the pension increase.
In my opinion, alternative "(a)" must be rejected for, whilst it is true that, if Mrs. Jones had gone on working, her husband would have received the pension increase and she would have kept her wages, the fact that she no longer has her wages is not due in any way to the legislation, but to the sad circumstance that Mr. Fellowes became so ill that Mrs. Jones through affection and duty felt it right to give up her individual pursuits to look after him. For many years this has been the unhappy lot of daughters married and unmarried, and without doubt it is a burden which has borne disproportionately hard on the female sex. But this is not a hardship which, as it seems to me, the European directive ever sets out to mitigate.
Version "(b)" is much more attractive. After all, Mrs. Jones has made a claim for arrears of ICA which has been turned down, and this is why the appellate machinery has been set in motion. This has been put forward as the appellant's case on more than one occasion. Thus, in the written submissions made on her behalf to the tribunal we find it said (in relation to the fact that ICA is a subsidy to encourage home carers) that the regulations "create a situation in which a class of people who will be disproportionately women are not entitled to the benefit of the 'subsidy'"; and, a little later, that "the complaint is ... the arrangement of a scheme designed to protect the invalid (in this case Mr. Fellowes) on a discriminatory basis". Tempting as this analysis may be, I am satisfied that the Commissioner was right not to accept it. The true effect of the Overlapping Benefit Regulations, which is the measure under attack, is to forfeit the pension increase and not the ICA; and the only reason why the complaint is that Mrs. Jones has lost the latter and not Mr. Jones the former is that for administrative convenience the General Benefit Regulations have created a set-off. Nobody has suggested that these regulations are discriminatory.
The real complaint, to my way of thinking, is that the pension increase has been annulled by the entitlement to ICA, whereas it would not have been compromised by Mrs. Jones' low earnings if she had remained at work. I am fortified in this analysis by the following passages from the documents:
[The Commissioner, rehearsing the appellant's contentions]
"In other words, the effect of regulation 10 of the Overlapping Benefit Regulations created the anomalous position that while the claimant's husband was in receipt of an increase of invalidity pension, she was entitled to retain her part-time earnings, whereas when she was obliged to forego those earnings and became entitled to invalid care allowance, she lost her dependency status although the rate of invalid care allowance was within the prescribed earnings limit for the purpose of the increase." (Appeal Bundle, page 9.)
[The appellant's written submissions before the Commissioner]
"The issue is the different treatment of earnings and ICA for the purposes of the dependants addition." (Appeal Bundle, page 19.)
[The appellant's written submissions to the tribunal]
"... it becomes clear that to provide for a complete off-set is to indirectly discriminate against women who were, before they began to care for the invalid in respect of whom they are entitled to invalid care allowance, part-time workers earning wages which were disregarded when calculating the relevant dependants addition for invalidity benefit." (Appeal Bundle, pages 29-30.)
So the sexual discrimination for which we must look here is one which bears on the increase of pensions payable to invalid men in relation to their dependent wives.
THE COUNCIL DIRECTIVE
Now we arrive at the source of the dispute. The relevant provisions of Directive 79/7/ EEC read as follows:
"Whereas Article 1(2) of Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions provides that, with a view to ensuring the progressive implementation of the principle of equal treatment in matters of social security, the Council, acting on a proposal from the Commission, will adopt provisions defining its substance, its scope and the arrangements for its application; whereas the Treaty does not confer the specific powers required for this purpose; whereas the principle of equal treatment in matters of social security should be implemented in the first place in the statutory schemes which provide protection against the risks of sickness, invalidity, old age, accidents at work, occupational diseases and unemployment, and in social assistance in so far as it is intended to supplement or replace the above mentioned schemes;
Article 1
The purpose of this Directive is the progressive implementation, in the field of social security and other elements of social protection provided for in Article 3, of the principle of equal treatment for men and women in matters of social security, hereinafter referred to as 'the principle of equal treatment' . ...
Article 3
(a) statutory schemes which provide protection against the following risks:
- sickness,
- invalidity,
- old age,
- accidents at work and occupational diseases,
- unemployment;
. . .
Article 4
- the scope of the schemes and the conditions of access thereto,
- the obligation to contribute and the calculation of contributions,
- the calculation of benefits including increases due in respect of a spouse and for dependants and the conditions governing the duration and retention of entitlement to benefits.
...
Article 5
Member States shall take the measures necessary to ensure that any laws, regulations and administrative provisions contrary to the principle of equal treatment are abolished.
...
Article 7
(c) the granting of old-age or invalidity benefit entitlements by virtue of the derived entitlements of a wife:
(d) the granting of increases of long-term invalidity, old-age, accidents at work and occupational disease benefits for a dependent wife: ...
Article 8
This Directive has not been explicitly re-enacted in the United Kingdom but it is common ground that it is directly enforceable, in the sense that, if the regulation offends against it, the regulation may not be relied upon against the appellant.
THE ISSUES
There are three broad areas of dispute, each comprising more than one issue:
Although this is the logical order in which the questions arise I will begin with the second, since I believe this to be at the heart of the dispute.
ARE THE REGULATIONS DISCRIMINATORY?
The question is whether regulation 10 involves "discrimination ... on ground of sex either directly or indirectly by reference to ... the scope of the schemes and the conditions of access thereto" within the meaning of Article 4(1) of the Directive. It is not suggested that any other legislation whether of the European Communities or of the United Kingdom bears on the present dispute.
We are not troubled here with direct discrimination. It is true that a number of provisions for benefit are directly discriminatory in the sense that they are payable only to persons of a specified gender, or are payable on terms which are more readily satisfied by persons of one gender than another. This is not so in the case of regulation 10(1), for if one looks at the matter individual by individual it makes no difference whether the claimant of benefit is male or female.
What we must consider is whether, if one looks not at individuals but at the population of claimants as a whole, it can be seen that there is indirect discrimination. The parties agree that for this purpose it is the effect, not the intent, of the legislation which counts. They also agree that what was called the "demographic" argument represents one way in which indirect discrimination can be established. As I understand it, the process for establishing discrimination on this basis takes the following shape. (For ease of illustration I will assume that the complaint stems from the failure of a woman to satisfy a relevant positive qualification for selection, and that only one such qualification is in issue.):
The reasoning thus summarised may be illustrated by the oft-cited but none the less useful example of the height qualification for police officers. Assume that amongst the various conditions for enrolment in the police force is a requirement that the candidates shall all be at least 5 ft. 10 ins. tall. This is not aimed at discouraging women from becoming police officers. Nor does it have the effect that no women can become police officers, for some are tall enough. Nevertheless, because women tend at present to be shorter than men, when one comes to examine the population of those who fulfil all the other requirements of entry it is found that the proportion of women who fail for lack of inches is markedly greater than that of men. Hence, the requirement is discriminatory.
I make no comment on this chain of reasoning, since the parties agree that it is sound and indeed accept that we are bound to treat it as such by the decisions of the European Court of Justice in Teuling v. Bedrijfsvereniging voor de Chemische Industrie ...Case 30/85) and Bilka Kaufhaus v. Weber von Hartz [1986] IRLR 317. (See also the opinion of Advocate General Mancini in the former case, and the epitome of the law given by Schiemann J in R v. Secretary of State for Education ex parte Schaffter ([1987] IRLR 53.) Nor is it necessary to question the assumption that the demographic argument is capable in principle of being applied to one particular provision in isolation from the complex statutory network of which it forms a small part: for this has been common ground between the parties at all stages of the dispute.
Approaching the present case, we find the demographic argument stated by the Commissioner in a way upon which it would be impossible to improve:
"Regulation 10 of the Overlapping Benefits Regulations has no application to a person in full-time employment whose earnings exceeded the prescribed limit for the purposes of an increase of invalidity pension, because no dependency benefit was in payment. Accordingly as regulation 10 is confined to circumstances where a dependency benefit and a personal benefit are payable for the same period, it must follow that its application is confined to a dependant, whose earnings fell within the prescribed limit for the purposes of the dependency benefit. It is accepted that more women than men are dependants who are the subjects of invalidity benefit increase and that more women than men are part-time or very low paid earners. Accordingly 'the practice or enactment complained of although apparently sexually neutral, in fact has a disproportionate impact on one sex' (Schiemann J in Schaffter's case) ..."
An important feature of this formulation is that it refers the question of discrimination to the pension increase, not the invalid care allowance. For the reasons already given I consider that the Commissioner was right to pose the question in this way.
Thus, we must ask ourselves whether, and if so in what shape, the loss of the pension increase payable to Mr. Jones in respect of his wife's dependency resulting from the set-off with "his wife's" ICA, is a discrimination against his wife on the ground of sex. (I put "his wife's" in quotation marks because Drake teaches us that the ICA was merely a separately-paid portion of Mr. Fellowes' disablement benefit.) When the issue is framed in these terms it leads at once to a question which does not seem to have been posed during these proceedings. If, following the steps of the demographic argument, one divides the relevant population into those who forfeit their pension increase through regulation 10 and those who do not, it is likely to be found that men are over-represented, because the majority of invalids with dependent spouses are probably male - or so I assume the question has not been investigated. If so, it must follow that if there is discrimination at all it is discrimination against men, for which an objective justification must be established if it is to survive.
One possible escape from this conclusion is to assert that Mrs. Jones suffered hardship because the family group of which she was part lost one of the two benefits. So indeed she did, but the Directive is not concerned with hardship but with "discrimination on ground of sex". I do not see how it can be legitimate simultaneously to postulate hardship by identifying Mrs. Jones with Mr. Jones and also to treat this hardship as sex-weighted hardship by looking at Mrs. Jones in isolation from her husband.
I believe however that there is a better solution, namely that the anomaly disappears once it is recognised that regulation 10(1) involves no discrimination against either sex. Since neither in the decisions under review nor in argument has the possibility been explored that it is Mrs. Jones' husband, not Mrs. Jones herself, who was the subject of discrimination, and since the argument is just the same if it is applied to Mrs. Jones, I will address it by reference to the position of Mrs. Jones. I will begin with two general questions.
The first is this. Assume that the qualifications for achieving a desired result include one which favours persons of gender X, assume also that they establish a second qualification which does not favour persons of either sex. Is the second qualification discriminatory against persons of gender X?
I would answer this question, No. The first qualification certainly does involve sexual discrimination in favour of X, and hence unfavourably to Y. The second qualification does reduce the number of qualifiers of gender X, and hence reduces the disparity of qualifiers within the population as a whole. But the discrimination will always be there. There are various ways of expressing the reasons, all coming to the same thing. One explanation is that the second qualification serves merely to mitigate the consequences of the discrimination against Y inherent in the first qualification, and will never eliminate them except in the trivial case where the second qualification is so hard to satisfy that nobody at all can qualify. Alternatively, it may be said that the relevant population consists of those who satisfy the second qualification, and that the selection from this population is gender-biased by the first qualification.
This rather rarefied analysis can be explored by reference to some simple examples.
Take first an elaboration of a homely instance given by Mr. Kent in the course of argument. A large children's party is being given, the guests being equally divided between girls and boys. The host announces that all the girls will be given presents, but that the boys will have none. Later, he discovers that the presents have not been delivered, and has to tell the guests that unfortunately nobody will receive a present. Is there sexual discrimination here? Yes, at the time of the first announcement: discrimination in favour of the girls against the boys, since the proportion of qualifiers is unbalanced. But common sense impels the answer that there is no sexual discrimination at the second stage. The disadvantage to the girls is not mirrored by any corresponding advantage to the boys. All that has happened is that the original discrimination has been nullified.
Now modify the example so that the host discovers, not that there are no presents, but that there are not enough for all the girls. He therefore announces that presents will be given only to red headed girls. Is there sexual discrimination at the second stage? Again there is not, albeit fewer girls than originally intended will receive presents. One reason is that there is no gender bias in the new qualification of being red-headed. More importantly, the second qualification (of being red-headed) operates on a population (composed only of girls) which is already sexually biased, and serves only to ameliorate this bias.
Let us modify the example further, by introducing a second qualification which this time is gender-biased. The host announces that the presents will go, not to red-headed girls, but to red-headed girls who play football. (I assume that even nowadays more boys than girls play football.) This new qualification will again redress some of the original imbalance, but although it disadvantages some girls it does not help any boy. The discrimination is not between boy and girl, but between one group of girls and another i.e. the relevant population is already irremediably biased against boys.
In the course of a resourceful argument Mr. Drabble sought to deal with examples of this kind by submitting that one should look separately at the justification for the two discriminations: so that if it was justified to create one discrimination, and unjustified to take it away, in whole or in part, the second step was objectionable and invalid. I agree to this extent, that when considering the justification for an act of discrimination one must take into account the justification for every element of it. But the question of justification arises only when discrimination has been found to exist, and I do not agree that, when deciding whether it does exist, one can properly isolate only one of the qualifications and disregard all the others. In our last example, an observer might think that the method of distribution was hard on non-footballers, but if asked whether the girls were discriminated against vis a vis the boys (and this is the only relevant question for the purposes of sex discrimination) there could I believe be only one possible answer: namely that as a group it was the boys, not the girls, who had come off worse.
When one leaves the world of children's parties and returns to the harsh realities of the social services legislation it does I believe become clear that to isolate one qualification cannot be right, for it would mean that in relation to a benefit payable only to people of a particular sex, any condition or restriction imposed on the benefit would automatically be discriminatory, and require to be separately justified, since it could bear only on people of that sex. Such a result would be nonsense. Take for example the mothers' and widows' benefits. These are made subject by the primary and delegated legislation (including, as I have shown, by the Overlapping Benefits Regulations) to various qualifications and limitations. These may or may not be fair. But could anyone seriously suggest that they are discriminatory as between man and woman? Surely not. (The position is of course entirely different where the legislation deals with the same subject-matter separately for the two sexes, as with the pension increases relating to wives and husbands in section 45 and 45A of the Act. Here the qualifications and limitations may be discriminatory: not individually but because, if they are not the same, they may yield unequal treatment for men and women. But we are not concerned with any such question here.)
Let us take the analysis one stage further. Thus far, we have been concerned with explicit, direct and complete discrimination at the first stage. All boys have been excluded from receiving prizes, and all men from widows' benefits. The position is more complicated where the discrimination is not direct and is established indirectly through the demographic argument. Here the discrimination in favour of gender X and against gender Y at the first stage is unlikely to be total, and some members of the latter will be among the population to which the qualification is applied at the second stage: a qualification which may involve factors now discriminatory in favour of, rather than against, persons of gender Y. In these cases there is a real possibility that one gender bias will swamp the other, and reverse the discrimination. This possibility makes it more than ever important to look at the two stages together, for the exercise is not completed merely by demonstrating the existence of discrimination. What matters is whether the discrimination invalidates the measure, and for this purpose all are agreed that objective justification must be regarded. This is not a function which can sensibly be performed by pretending that only one amongst two or more qualifications is subject to gender bias. In my judgment the analysis should be the same whether the initial discrimination or any discriminatory qualification upon it is direct or indirect.
Now to the present case. We are concerned here with the pension increase. Since the overwhelming proportion of recipients of this are male, the logic of the demographic argument insists that we regard this as discriminatory in favour of men and against women, since so few women have dependant husbands. Nobody has displayed any interest in this feature, no doubt because the justification for it is obvious. Nevertheless it must represent the starting point of the enquiry. Superimposed is the limitation created by regulation 10(1) which takes away or reduces the pension increase by references to the circumstances of the beneficiary's dependent. Is the consequence discriminatory? I would say, No. Not as regards the dependent wife, since it is not she but her husband who loses the benefit. Nor as regards the pensioner himself, because the regulation serves only to diminish a discrimination which ex hypothesi is favourable to his gender group.
My conclusion would be the same even if one adopted a different formulation from any so far proposed in this case and regarded Mrs. Jones as suffering hardship through regulation 10(1) because she is a participant in the Jones family group whose total income is reduced by it. I find it impossible to discern any sexual discrimination here, for the hardship is borne equally by the male element in that group. Quite apart from this, the conferring of benefit notionally on the group, and the removal of it in certain instances, is not, for the reasons previously stated, a discrimination against either sex; and the fact that the removal happens to be limited to the income characteristics of the female member of the group does not in my view make any difference.
I would therefore hold that no discrimination on ground of sex is established in this case and that regulation 10(1) does not offend against Article 4 of the Directive. Accordingly I propose that the appeal should on this ground be dismissed.
I would add two comments. In the first place the views just expressed are founded, as was the decision of the Commissioner, on the premise that the hardship of which complaint is made consists of the loss of pension increase. Even if this were wrong, and the case could somehow be made out that Mrs. Jones has lost her ICA, my conclusion would be the same. The statistics show that the majority of those receiving ICA are women. If the impact of the Overlapping Benefits Regulations had been so gender-biased as to produce a situation where most of those receiving ICA are men, there might indeed be an argument for the existence of sexual discrimination. No argument on these lines has however been presented, nor do I see how it could have been, on the data laid before us. In reality what has happened is that a balance in favour of women has to some extent been redressed.
The second observation may be introduced by a reference to the words "in favour of", which I have just employed. It may well seem odd, and indeed rather objectionable, to say that there is any favouritism in conferring an income replacement benefit primarily on women who for necessity rather than choice tend because of the way our society is organised to form the majority of those who care for invalids. Nevertheless the demographic argument in the form presented to us leads inexorably to the conclusion that ICA is a discriminatory benefit, albeit one which is of course readily justifiable. I say "in the form presented to us" because it is plain that the version which I have summarised is wider than necessary to deal with qualifications which women cannot (e.g. the height qualifications) as distinct from do not in practice comply with. It is obvious that, if the argument in its wider form is carried through, it will be found that the social security legislation of every member state is permeated with sexual discrimination and could not be otherwise, given that the legislation must cope with the needs of society as it exists today, not as it may be tomorrow or the day after. Society is not at present in even an approximate condition of gender balance. Like it or not, women are the primary child carers, men are still the primary earners, and women therefore the majority of dependants men are the principal contributors to contributory benefits and so on. No doubt the balance will change, but for the time being a social security regime which did not recognise that things are as they are would be cruel, and a demographic argument, which shirked the consequences of its own logic, would lead only to well-intentioned unclear thinking.
It is of course true that in the overwhelming majority of cases such discriminations will not offend against the Directive, since the justification for them will be obvious. This is not however a sufficient answer, because the suggestion that it is enough to prove differential impact to throw the burden of proving justification on to the legislator, the employer, or whatever, by expensive and time-consuming litigation, seems to me wholly inimical to the interests of society in general and the cause of equal treatment in particular.
This has caused me to wonder whether in some future case the court may not think it worth while to look more closely at the formulation and intellectual underpinnings of the demographic argument. We have no need to do so here, nor indeed have we the means to do so, since we have seen nothing beyond the brief observations of Advocate General Mancini in Tueling. I must make it absolutely clear that, in making this suggestion, I intend to cast no doubt on the concept of indirect discrimination which is quite clearly binding on this court, or on the general aims of the Equal Treatment Directives, which are not only directly effective in this country but reflect an aim of social policy to which the courts should and must subscribe. Quite the reverse. What I do propose is that in the best interests of equal treatment the courts would do well not to equate too readily an apparent disparity with discrimination, and to be careful not to be too ready to accept arguments such as the present which to my mind are essentially misconceived.
DOES THE DIRECTIVE APPLY?
In the light of the opinions just expressed the question whether, if discrimination on the ground of sex could be established, it would offend against Article 4, does not arise. The matter was however discussed by the Commissioner, and explored to some extent in argument, and since it is important I ought to say something about it. The question has two aspects. The first concerns the scope of the Directive and of the permissive provisions in Article 7. The second concerns the manner in which the member state may exercise its liberty under that Article.
On the first aspect three issues were argued.
So much appears plain sailing. The second aspect of Article 7 is altogether more troublesome, partly because the parties seem to be at cross purposes with each other, or perhaps with the tribunal, the Commissioner and the court, about its implications.
The point can best be illustrated by a short extract from paragraph 12 of the Commissioner's decision. In the first part of this paragraph the Commissioner dealt successively with arguments advanced for Mrs. Jones to the effect that Article 7(1)(d) did not extend to the whole of the scheme now under review, and that it did not apply to provisions relating to disentitlement to benefit. (For the reasons just stated I venture to disagree on both points.) She then proceeded to record, and as I read her decision to accept, an argument to the following effect :
"Lastly Mr. Drabble submitted that Article 7 did not itself exclude Article 7(1)(d) matters from the scope of the Directive 79/7. It simply provided a power for Member States to do so. Mr. Kent had not referred to any measure of the United Kingdom Government excluding the granting of increases of long-term invalidity benefits for a dependant wife from the scope of Directive 79/7."
The reason why I find this aspect of the case to be troublesome is that the question raised by the argument just mentioned serves to conceal a second question which has not been debated at any stage of the proceedings. The first question is this: in order to take advantage of the liberty in Article 7 must the member state explicitly declare that it is excluding from the scope of the Directive some or all of the matters referred to in paragraphs (a) to (d) of Article 7(1), and that certain legislation inconsistent with Article 4 is being enacted pursuant to this exclusion? or is it enough for the member state simply to enact such inconsistent legislation, on the basis that this is a tacit exercise of the liberty under Article 7?
The concealed question is this. Assume that the member state has not (in whatever manner is permissible according to the answer given to the first question) excluded a discriminatory measure from the scope of the Directive, is it nevertheless possible to validate the measure by showing that it is "objectively justifiable" by reference to some non-discriminatory motive for the legislation, this being the formulation employed in the present dispute for the familiar concept of proportionality? Or does the issue of proportionality arise only if the member state has expressly declared that it exercises the liberty under Article 7, the court of the member state being then called on to decide whether the exercise of the option was objectively justifiable.
Now it is easy to see that the second question disappears if the answer to the first is that the liberty can be exercised either by a formal declaration, or by leaving in force of legislation inconsistent with Article 4: for in such a case it should make no practical difference whether proportionality is assessed in terms of the formal exclusion or the legislation under attack: for the considerations to be put in the scale are the same.
On the other hand, if only a formal exercise of the option will suffice for Article 7, and if none has been made, the second question will come into play. In such a situation the member state, having been given the option to exclude the Directive, has chosen not to use it, and the legislation under attack is thus flatly contradictory to Article 4, without Article 7 entering the picture at all. One would expect that the legislation would then simply be struck down, without any consideration of the proportionality which would have been relevant if the state had elected to avail itself of the option.
It is this later situation to which the decision of the Commissioner has given rise. She has accepted that Article 7 calls for an explicit use of the member state, and has found that none has been demonstrated. One would expect the result to be that if the measure is found to be discriminatory (and the Commissioner has so found) no question of proportionality could arise, the Directive forbids discrimination and that is the end of it. Yet all concerned, including the Commissioner, have evidently assumed that the regulation would still be valid, if objective justification could be proved.
Although I have formed some provisional views on this conundrum, I think it better not to express them. If I am right that regulation 10(1) involves no discrimination on the ground of sex, the relationship between the option and proportionality is academic. Moreover, if the position had been otherwise, we might have been implied to seek further assistance from counsel, for it seems to me probable that the answers to these questions will have been either stated or tacitly assumed in cases which have already been decided in the courts of the Community or this country. In particular, the court would have invited submission on the very recent decision in Secretary of State for Social Security v. Thomas and others, in which it seems to have been assumed on all hands that legislation in a manner contrary to Article 4 in the area delineated by Article 7 is itself an exercise of the option, and that the issue of proportionality is to be addressed by reference to this exercise of the option. In the event, of course, we have not thought it necessary to reconvene the hearing so that the matter could be examined in more depth.
In these circumstances, I prefer to do no more than express my reservations about the reasoning of the Commissioner in the passage quoted above, and also the use of it as a starting-point for the discussion of proportionality. If the topic is raised again in some other case it can then be given a closer scrutiny than has been possible here.
OBJECTIVE JUSTIFICATION
The question whether regulation 10(1) can be saved by proof of objective justification does not arise if I am right in holding that there is no discrimination and hence nothing to justify. Nevertheless, since the Commissioner decided in favour of the respondent on this basis, differing there from the tribunal, I will offer some general observations upon it.
In the first place, I think it is essential when considering proportionality in the context of the Directive to be very clear about the issue which the national court is called upon to decide. What the court does not have to decide is whether it represents a sensible and moderate way of giving effect to a general legislative policy. These general questions fall within the purview of the national legislature and of the national constitutional court, if the member state possesses one, and are not the concern of European law. What the national court must do is to identify with precision those features of the measure under attack which discriminate against members of one sex either directly by their terms or indirectly by their effect. The court must then consider whether those features are the unavoidable consequence of a justifiable policy, not in itself of a sexually discriminatory nature.
This point is worth labouring because it is very easy, when faced with an issue of proportionality, to fall into considering whether the measure in question was well-conceived and properly thought through. This is not so at all. As will appear from the summary given at an earlier stage, the Overlapping Benefit Regulations embody the fruits of numerous decisions on matters of social policy. Some of these may have been evenly balanced no doubt it would be possible to muster reasons for arguing that some of them are wrong. So in the case of regulation 10. On the face of it, there seems good reason for making some abatement of dependency benefits in cases where the dependent receives a personal benefit, for such receipt will serve to reduce the dependency. The selection of personal benefits to which this applies set out in regulation 10(1) may well be debatable: and, so also the decision to apply the abatement to income replacement benefits, of which ICA is only one example. Criticism might also be made of the feature that the personal benefit is debited pound for pound against the dependency benefit, rather than by treating the income replacement benefit as equivalent to the income which it notionally replaces, up to the limit of permissible earnings for the purposes of the dependency benefit. The possible answers to these criticisms are very clearly set out by the Commissioner in her decision.
No doubt, if we were in the political arena there could be lively debate on the fairness of all this, and I suppose that, if this were an application for judicial review founded on an argument that the regulation was so unfair as to be irrational, we would have to enter into it, although I hardly see how such an argument could begin to succeed. But we are not engaged on any such exercise. The task is not to assess the general merits of regulation 10 but to consider whether these features of it which are sexually discriminatory can be validated on the grounds of a sexually neutral social policy.
It will be clear from what has already been said that I find this exercise impossible to perform in the present context. Let us take again the extreme case of the benefits which can by their nature be payable only to women. In several cases these are payable subject to conditions, limits and deductions. No doubt there could be lively controversy on whether the imposition of these qualifications means that society is being too ungenerous to widows and mothers, and this could be presented as a controversy about whether the qualifications were "justified". That would not, however, have anything to do with Directive 79/7, unless it could be made out that the qualification had an element of sexual discrimination which needed to be validated by an overriding contrary interest. For the reasons given, I believe that no such element is present.
So also here. The starting point for the appellant's argument must be to demonstrate a sexually discriminatory element in regulation 10(1). Skilfully although it was deployed, the argument never clearly settled on what the discrimination was said to be. The Commissioner certainly did so, but I must repeat with due respect that neither that version, nor any of the alternatives which came to the surface during argument are in my view instances of discrimination on the ground of sex against women. This being so, I cannot enter upon the difference of opinion between the Commissioner and the tribunal because they address an issue which, on the view which I have formed, not only does not but cannot arise.
CONCLUSION
For these reasons I would dismiss the appeal.
LORD JUSTICE NOURSE: I have had the advantage of reading in draft the judgment of Lord Justice Mustill and for the reasons given by him I too would dismiss this appeal.
LORD JUSTICE BUTLER-SLOSS: For the reasons given in the judgment of Lord Justice Mustill, which I have read in draft, I agree that Mrs. Jones has not been discriminated against and therefore the appeal must fail. I would respectfully endorse the view that he expressed, that the court ought not to equate too readily an apparent disparity with discrimination. I also agree that, consequently, the issue of objective justification does not and cannot arise.
I am, however, troubled by the application of Article 7 of the 1979 Directive to national legislation and the circumstances in which the state may opt out of the Directive. I am uncertain whether the member state is under an obligation to indicate that specific legislation is to be excluded (see Article 7(2)) or whether the legislation in question may fall within the exclusion by subsequent construction of the Article upon which the member state may rely after a challenge in the national court. The Social Security Act 1975 and the regulations under it were passed, no doubt, without the 1979 Directive in contemplation. In a recent decision in Secretary of State for Social Security v. Thomas and Others it appears to have been assumed on all sides that the opting out permitted by Article 7 does not require a conscious decision by the member state and no argument on the point was addressed to the court.
In view of the failure of the appellant to demonstrate to the satisfaction of this court that she had been discriminated against, a decision is not necessary upon the extent and application of article 7(1)(d). However, had it been necessary to decide this point, I should myself have been very unhappy at coming to a conclusion on a point of such general importance without the assistance of argument from the Secretary of State, who was not party to these proceedings.
I, too, would dismiss this appeal.
