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	UK Social Security and Child Support Commissioners' Decisions
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[2003] UKSSCSC CJSA_4890_1998 (13 January 2003)

 


DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. The claimant's appeal to the Commissioner is allowed. The decision of the Whittington House appeal tribunal dated 11 August 1998 is erroneous in point of law, for the reason given below, and I set it aside. It is expedient for me to substitute the decision on the applicant's appeal against the adjudication officer's decision given on 7 January 1998 (Social Security Act 1998, section 14(8)(a)(ii)). My decision is that the claimant's entitlement to jobseeker's allowance from 16 December 1997, down to 7 January 1998, is to be calculated with the inclusion of the family premium and of a personal allowance for his daughter Heidi, but not for his daughter Alisha, in his applicable amount. His entitlement to jobseeker's allowance for the period from 8 January 1998 down to the present is to be calculated by the Secretary of State on the basis of the principles of law and findings of fact set out below and of any changes of factual circumstances to be agreed between the Secretary of State and the claimant's representatives. If there is disagreement about the changes of factual circumstances that have occurred or about the consequences on the claimant's entitlement to jobseeker's allowance, the case is to be returned to me (or, if necessary, to another Commissioner) for further decision.
2. The claimant has succeeded on several significant points of law which were before me for decision. My decision on the facts is more favourable to him than the adjudication officer's decision under appeal, but not to the full extent argued for on his behalf.
3. The background circumstances and the relevant legislation have already been set out at earlier stages of this case, in particular by the Court of Appeal on 2 May 2001. Here I shall set out only what is necessary for the understanding of my decision. The claimant separated from his wife and they lived apart. On 6 October 1997 a "residence contact specific issue order" was made under section 8 of the Children Act 1989 under which their two daughters Heidi (born in 1983) and Alisha (born in 1990) were to reside with both spouses. It is fairly clear that some parts of the title of the order should have been deleted and that, since it only dealt with residence, it was a residence order within section 8(1). Where such an order is made in favour of two or more persons who do not share a household (section 11(4)) it is usually called a shared residence order. Paragraphs 2 to 5 of the order of 6 October 1997 specified the particular times for which each child was to reside with each spouse. At earlier stages the division has been described as roughly equal within each week, but it is necessary to look at the exact provisions:

"2. The children shall reside with the mother at the following times:

During school term times

Heidi Thursday - Monday

Alisha Wednesday - Monday

3. The children shall reside with the father at the following times:

During school term times

Heidi Monday - Thursday

Alisha Monday - Wednesday

4. Every fourth week the days shall be changed so that Heidi resides with her father from Sunday at 11.00 am until Wednesday, and Alisha resides with her father from Sunday at 11.00 am until Tuesday. In this respect responsibility for transportation of the children shall be divided between the parents equally.

5. All of the school holidays shall be divided between the parents equally."

At the appeal tribunal hearing on 11 August 1998 the claimant produced a document headed "shared residence claim" (see pages 65 and 48A) in which it was said that Heidi lived with the claimant for 169 days out of the year and Alisha for 131 days. However, it was not stated over what period those days were computed (did it include periods before the order of 6 October 1997?) or whether the calculation was in terms of overnight stays, periods of 24 hours or any other meaning of "day".

4. The claimant claimed jobseeker's allowance (JSA) on 16 December 1997. On the claim form he said that his daughters would stay with him for a full week in the Christmas holidays (26 December 1997 to 2 January 1998) and in other weeks stayed with him from Monday to Thursday. The claimant's wife was then in receipt of child benefit in respect of both daughters. The adjudication officer's decision on 7 January 1998 was to award income-based JSA with no personal allowances for the daughters or family premium. The claimant did not claim child benefit for his daughters until 25 November 1998. He was then awarded child benefit in respect of Heidi, apparently from 21 December 1998. His JSA award was reviewed to give him a personal allowance for Heidi, and presumably also the family premium. That personal allowance seems to have continued in payment until Heidi's exclusion from child benefit (presumably on ceasing full-time secondary education). The claimant has continued to be entitled to income-based JSA down to the present.
5. The adjudication officer's initial decision was entirely in accordance with the Jobseeker's Allowance Regulations 1996 (the JSA Regulations). Regulation 83(b) provides for a personal allowance for a child (ie under 16) or young person (ie child of 16 to 19 in secondary education) who is a member of the claimant's family. The definition of "family" in section 35(1) of the Jobseekers Act 1995 includes a member of the same household for whom the claimant is responsible and who is a child or a young person. Regulation 83(d) provides for a family premium for a claimant who has a family including a child or young person. Thus, through the definition of family, responsibility for a child is an essential part of the qualification for a personal allowance or a family premium. Paragraph 13 of Schedule 1 to the Jobseekers Act 1995 authorises the making of regulations "as to the circumstances in which one person is to be treated as responsible or not responsible for another".
6. Regulation 77 of the JSA Regulations provides:

"(1) Subject to the following provisions of this regulation, a person is to be treated for the purposes of the Act as responsible for a child or young person for whom he is receiving child benefit.

(2) In a case where a child (`the first child') is in receipt of child benefit in respect of another child (`the second child'), the person treated as responsible for the first child in accordance with the provisions of this regulation shall also be treated as responsible for the second child.

(3) In the case of a child or young person in respect of whom no person is receiving child benefit, the person who shall be treated as responsible for that child or young person shall be--

(a) except where sub-paragraph (b) applies, the person with whom the child or young person usually lives; or

(b) where only one claim for child benefit has been made in respect of the child or young person, the person who made that claim.

(4) Where regulation 78(7) (circumstances in which a person is to be treated as being or not being a member of the household) applies in respect of a child or young person, that child or young person shall be treated as the responsibility of the claimant for that part of the week for which he is under that regulation treated as being a member of the claimant's household.

(5) Except where paragraph (4) applies, a child or young person shall be treated as the responsibility of only one person in any benefit week and any person other than the one treated as responsible for the child or young person under this regulation shall be treated as not so responsible."

7. Regulation 78(7), mentioned in regulation 77(4), applies to children being looked after by local authorities or who are in custody and are allowed home for only some days in the week. Those are the only circumstances in which responsibility can exist for less than a benefit week as a whole and plainly do not apply in the present case. The general rule in regulation 78(1) is that any child for whom a person is treated as responsible under regulation 77 is to be treated as a member of that person's household notwithstanding temporary absences. In the present case, Heidi and Alisha were undoubtedly members of the claimant's household throughout the relevant period both under regulation 78(1) and the ordinary meaning of membership of a household. None of the exceptions in the rest of regulation 78 apply. Therefore, no more attention needs to be given to that condition. The crucial condition is that of responsibility.
8. It is convenient to give a brief summary of the child benefit rules here. It is a condition of entitlement to child benefit that a person is responsible for the child in question (Social Security Contributions and Benefits Act 1992, section 141), but responsibility is given a wide meaning in section 143(1). It covers both situations where the child is "living with" the person (section 143(1)(a)) and where the person is contributing to the cost of providing for the child at a weekly rate at least as high as the weekly child benefit which would be payable (section 143(1)(b)). The "living with" condition can be satisfied if the child is carrying on a settled course of daily living with the person for some part of the week, but not by mere transitory presence (see Commissioners' decisions R(F) 2/79 and R(F) 2/81) and there are provisions in the rest of section 143 for a person to be treated as continuing to have a child living with him notwithstanding absences. It is obvious that there will be many cases it which more than one person would meet the condition of being responsible for a child. In such a situation the question of which person is to be entitled to child benefit is to be decided in accordance with Schedule 10 (section 144(3)).
9. Schedule 10 provides a series of priority rules to be applied in order. Each comes into play only if priority has not been fixed by an earlier rule. Under paragraph 1 a person already awarded child benefit has priority over a person who claims child benefit for the child in question, but only for three weeks after the week of the claim. Under paragraph 2, a person qualifying under the "living with" test has priority over a person qualifying only under the "contributing to the cost" test. Under paragraph 3, where a husband and wife are residing together, the wife is to be entitled. Under paragraph 4, first a parent has priority over a non-parent and second, as between non-married parents residing together, the mother has priority. Finally, under paragraph 5, the competing parents may jointly elect which of them is to be entitled, or, in default of election, whichever the Secretary of State in his discretion determines is to be entitled.
10. It can be noted at this point that a question to be resolved by Schedule 10 only arises when there are competing claims for child benefit in respect of the same child. If only one person claims (as was the case here for Heidi and Alisha until 25 November 1998), it is enough to come within the wide meaning of responsibility in section 143(1). When the competing child benefit claim was made by the claimant, none of paragraphs 1 to 4 of Schedule 10 would have disposed of the issue of entitlement and there was no joint election. Therefore, the Secretary of State must have exercised his discretion under paragraph 5 to grant entitlement the claimant in respect of Heidi, and necessarily remove entitlement from the claimant's wife. I have as part of the evidence before me a witness statement made for the purposes of another case (R (on the application of Barber) v Secretary of State for Work and Pensions) from a Mr Ian Sprawson, head of the Child Benefit Policy Section in the Department for Work and Pensions, which deals in part with how representatives of the Secretary of State go about exercising the discretion under paragraph 5.
11. The claimant appealed against the adjudication officer's decision of 7 January 1998, on the main ground that regulation 77 of the JSA Regulations was discriminatory against men in his position and was therefore contrary to Article 4 of EC Council Directive No 79/7/EEC on the progressive implementation of the principle of equal treatment for men and women in matters of social security. Article 4(1) provides that, in cases within the scope of the Directive, there is to be:

"no discrimination whatsoever on grounds 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 entitlements to benefit."

The claimant's argument was that the child benefit priority rules favoured mothers over fathers so that the linking rule for JSA was discriminatory. The appeal tribunal of 11 August 1998 disallowed his appeal.

12. The claimant appealed to the Social Security Commissioner. On 2 May 2000 Mr Commissioner Goodman set the appeal tribunal's decision aside as erroneous in point of law, because it had failed to deal adequately with the claimant's contentions on the validity of regulation 77 of the JSA Regulations. However, the Commissioner confirmed the adjudication officer's decision. He rejected the claimant's arguments that regulation 77 was ultra vires. He also decided that income-based JSA was not within the scope of Directive 79/7, so that Article 4 could not be relied on. The claimant made a further appeal to the Court of Appeal, which was allowed on 2 May 2001.
13. The Court of Appeal held that JSA constituted one statutory scheme, encompassing both the contribution-based and the income-based routes to entitlement, which provided protection against the risk of unemployment. It was therefore within the scope of Directive 79/7 under Article 3(1)(a). On the question of whether Article 4(1) was breached Aldous LJ said this:

"[35] Questions of law on discrimination are best decided against the background of the facts. In this case it is arguable that it is discriminatory to link entitlement to the additional jobseeker's allowance to the entitlement to child benefit. Child benefit is a payment made to the person responsible for the child. It is not means-tested and it could be that more women than men are entitled to receive it. The additional amount of jobseeker's allowance is a means-tested subsistence benefit. The very difference between the two payments could show that it was not logical to link the two together. For example it could be thought right by the Secretary of State, and in fact be right, that the child benefit should remain with the mother who provides accommodation, food and clothes for the child even though the child spends say two weeks in total with the father during the summer holiday. But the reasoning for that decision would appear not to apply to the question of whether the additional amount of jobseeker's allowance should be paid for those two weeks when the child was staying with the father.

[36] It may be that men are at a disadvantage when claiming for a dependant after separation. It is also possible that women are more likely than men to be the recipients of child benefit. That no doubt will, to a large extent, reflect the respective degrees of responsibility. But it seems to me to be arguable that the linking of the entitlement to the additional amount of jobseeker's allowance to child benefit puts men at a disability to women both practically and theoretically.

[37] For my part I would not wish to express any concluded view as to the arguments advanced by [counsel for the claimant and for the Secretary of State] as to the discriminatory effect of linking entitlement to the additional amount of jobseeker's allowance. It appears to me best that the facts be found, in so far as they are available, and then to consider the submissions of the parties on the law against that background."

Accordingly, the case was remitted back to a Commissioner to consider the issue of discrimination.

14. Written submissions were then made on the question of discrimination, a process which unfortunately took a very long time owing to the claimant's solicitors' wish to commission an expert statistical report. An oral hearing was held on 7 May 2002. The claimant attended and was represented by Richard Drabble QC, instructed by Hugh James Ford and Simey, solicitors. The Secretary of State was represented by Natalie Lieven of counsel, instructed by the Solicitor to the Department for Work and Pensions. Following the hearing I directed further written submissions on the question of what rules should be applied if I found that there was unjustified discrimination contrary to Article 4(1) of Directive 79/7. Unfortunately that also took a long time, as a result of requests for extensions of time on both sides, a mix-up over whether further evidence was going to be put forward by the claimant's solicitors and unlucky timing in relation to periods when I was on leave.
15. A number of issues were agreed. It was accepted on both sides that the appeal tribunal of 11 August 1998 had erred in law for the reasons found by Mr Commissioner Goodman. As the allowing of the appeal against his decision would seem to have deprived all of that decision of any legal force, it is necessary for me to set aside the decision of the appeal tribunal of 11 August 1998 as erroneous in point of law. I do so.
16. It was also agreed that, if possible, I should substitute a decision on the claimant's appeal against the adjudication officer's decision of 7 January 1998, rather than remit the case to a new appeal tribunal. There is a problem in taking that course. Since the claimant's appeal was made before 21 May 1998, it is free of the rules introduced by the Social Security Act 1998. Therefore, I would be redetermining the facts and be required to consider the facts for the whole period from 16 December 1997 down to the present (see the decision of the Tribunal of Commissioners in R(IS) 17/94). The problem is that, although there was evidence as to the circumstances at and around the dates of the claim and of the adjudication officer's decision, evidence had not been put forward about the circumstances (for instance the pattern of residence of Heidi and Alisha or later decisions on child benefit). Some gaps have now been filled in, but I would still have great difficulty in saying how the claimant's JSA entitlement should be calculated for the whole period in issue. Mr Drabble and Ms Lieven agreed that I should substitute a decision on the circumstances as at the date of the adjudication officer's decision, on the principles of law which I found to apply, leaving it to be worked out later how that result should apply for the rest of the period in issue. That is what I have done in my decision set out in paragraph 1 above.
17. Finally, the Court of Appeal having conclusively decided that income-based JSA falls within the material scope of Directive 79/7, there is no dispute that the claimant falls within the personal scope of the Directive. The questions of law which remain are whether regulation 77 of the JSA Regulations embodies discrimination on the ground of sex, contrary to Article 4(1) of the Directive, which cannot be objectively justified and, if so, what the effect is on the provisions which are to be applied in the claimant's case.

Discrimination

18. There was a substantial measure of agreement on this issue. A detailed statistical report was obtained on behalf of the claimant from Sally Holtermann, an economic consultant. What was said to be the central result of the paper, following an analysis of child support data, was that 92% of men who shared the care of their children for at least 104 nights a year could not get child additions in income-based JSA because they did not receive child benefit and 8% of women sharing care could not get additions for that reason. On behalf of the Secretary of State doubts were expressed about the pool for comparison chosen by Ms Holtermann, but it was accepted in the skeleton argument for the oral hearing that there was:

"a statistical discrimination in favour of women in respect of the working of the rules of entitlement to child additions to JSA(IB). The Secretary of State therefore does not challenge the statistics in the report and seeks to defend the case on the grounds of objective justification alone."

Thus it was necessarily accepted that the effect of making the qualification for personal allowances for children and the family premium in income-based JSA depend on the receipt of child benefit was that there was a considerable difference between the proportion of men in the relevant pool who could qualify and the proportion of women in the relevant pool who could qualify.

19. I am content to accept that concession. There is then no need for me to go into the difficult questions often involved in identifying whether or not a particular rule has a disproportionate impact on one sex. The claimant's case under Article 4(1) of Directive 79/7 is therefore made out, unless the Secretary of State shows objective justification unrelated to any discrimination on the grounds of sex.

Justification

20. The first question is of what test is to be applied as a matter of EC law. Here the differences between Mr Drabble and Ms Lieven were largely on matters of emphasis. The test was re-stated by the European Court of Justice (ECJ) in the particular context of Directive 79/7 in Nolte v Landesversicherungsanstalt Hannover (Case C-317/93) [1995] ECR I-4625 in paragraphs 28, 33 and 34:

"28. As the Court has consistently held, Article 4(1) of the Directive precludes the application of a national measure which, although formulated in neutral terms, works to the disadvantage of far more women than men, unless that measure is based on objective factors unrelated to any discrimination on grounds of sex. That is the case where the measures chosen reflect a legitimate social policy aim of the Member State whose legislation is at issue, are appropriate to achieve that aim and are necessary in order to do so (De Weerd, née Roks and others, C-343/92 [1994] ECR I-571, paragraphs 33 and 34).

33. The Court observes that, in the current state of Community law, social policy is a matter for the Member States (see Commission of the European Communities v Kingdom of Belgium, C-229/89 [1991] ECR I-2205, paragraph 22). Consequently, it is for the Member States to choose the measures capable of achieving the aim of their social and employment policy. In exercising that competence, the Member States have a broad margin of discretion.

34. It should be noted that the social and employment policy aim relied on by the German government is objectively unrelated to any discrimination on grounds of sex and that, in exercising its competence, the national legislature was reasonably entitled to consider that the legislation in question was necessary in order to achieve that aim."

The ECJ held that the exclusion of persons in minor employment from compulsory insurance for social security purposes was justified by the German government's policy aim of fostering the existence and supply of such employment, for which there was a social demand.

21. In decision R(FC) 2/98, Mr Commissioner Wheeler made a careful analysis of Nolte and three other cases (Megner and Scheffel v Innungskrankenkasse Vorderpfalz (Case C-444/93) [1995] ECR I-4741, Postuma-van Damme v Bestuur van de Bedrijfsvereniging voor Detailhandel, Ambachten en Huisvrouwen (Case C-280/94) [1996] ECR I-179 and Laperre v Bestuurscommissie Beroepszaken in de Provincie Zuid Holland (Case C-08/94) [1996] ECR I-273) and accepted without hesitation that the British government has a broad margin of discretion in relation to social and employment policy and that it is the responsibility of ministers and not the courts to decide how those policies should be implemented by legislation. I do not need to repeat that analysis here, but can move to the most recent decision relied on by Ms Lieven.
22. That is R v Secretary of State for Employment, ex parte Seymour-Smith (Case C-167/97) [1999] ECR I-623, in which the condition of two years' employment for bringing an unfair dismissal claim was challenged as contrary to Article 119 (now Article 141) of the Treaty of Rome. The Court said the following:

"69. It is settled case law that, if a Member State is able to show that the measures chosen reflect a necessary aim of its social policy and are suitable and necessary for achieving that aim, the mere fact that the legislative provision affects far more women than men at work cannot be regarded as a breach of Article 119 of the Treaty: see, in particular, Megner v Innungskrankenkasse Vorderpfalz (Case C-444/93) [1995] ECR I-4741, 4754, paragraph 24, and Freers [1996] ECR I-1165, paragraph 28.

70. In this case, the United Kingdom Government contends that the risk of exposure of employers to proceedings for unfair dismissal brought by employees who had only fairly recently been engaged would be a deterrent to recruitment, so that extension of the qualifying period for protection against dismissal would stimulate recruitment.

71. It cannot be disputed that the encouragement of recruitment constitutes a legitimate aim of social policy.

72. It must also be ascertained, in the light of all the relevant factors and taking into account the possibility of achieving the social policy aim in question by other means, whether such an aim appears to be unrelated to any discrimination based on sex and whether the disputed rule, as a means to its achievement, is capable of advancing that aim.

73. In that connection, the United Kingdom Government maintains that a Member State should merely have to show that it was reasonably entitled to consider that the measure would advance a social policy aim. It relies to that end on Nolte v Landesversicherungsanstalt Hannover (Case C-317/93) [1995] ECR I-4625.

74. It is true that in the Nolte case, at page 4660, paragraph 33, the Court observed that, in choosing the measures capable of achieving the aims of their social and employment policy, the Member States have a broad margin of discretion.

75. However, although social policy is essentially a matter for the Member States under Community law as it stands, the fact remains that the broad margin of discretion available to the Member States in that connection cannot have the effect of frustrating the implementation of a fundamental principle of Community law such as that of equal pay for men and women.

76. Mere generalisations concerning the capacity of a specific measure to encourage recruitment are not enough to show that the aim of the disputed rule is unrelated to any discrimination based on sex or to provide evidence on the basis of which it could reasonably be considered that the means chosen were suitable for achieving that aim."

23. There is some looseness in the use of language in those paragraphs. Ms Lieven accepted that, in the light of the Court's adoption of the statement in Nolte as part of settled case law, there was no intention to dilute the condition that a measure is suitable and necessary to a legitimate social policy aim into a condition that the measure is merely suitable. I think that that must be right, although when the House of Lords decided the case according to the answers given by the ECJ, Lord Nicholls applied a test of whether the government could reasonably consider that the means chosen were suitable for attaining a legitimate aim of its social policy ([2000] IRLR 263, at 270). I consider that that must be understood merely as a reflection of the Member State's broad margin of discretion and that the proper test to be applied is that formulated in paragraphs 33 and 34 of Nolte.
24. Although it is very difficult indeed to find a clear and consistent approach in the many judgments of the ECJ (including many I have not mentioned), I am fortified in the conclusion expressed above by the way that the test has been put in more recent decisions of the ECJ on EC Directive 76/207/EEC (on equal treatment in access to employment and in working conditions). Paragraph 41 of the judgment in Jorgensen v Foreningen af Speciallæger (Case C-226/98) [2000] ECR I-2447 is as follows, and is repeated in paragraph 49 of Kachelmann v Bankhaus Hermann Lampe KG (Case C-322/98) [2000] ECR I-7505:

"As Community law stands at present, social policy is a matter for the Member States, which enjoy a reasonable margin of discretion as regards the nature of social protection measures and the detailed arrangements for their implementation (see Case C-229/89 Commission of the European Communities v Kingdom of Belgium [1991] ECR I-2205, paragraph 22, and Case C-226/91 Molenbroek [1992] ECR I-5943, paragraph 15). If they meet a legitimate aim of social policy, are suitable and requisite for attaining that end and are therefore justified by reasons unrelated to discrimination on grounds of sex, such measures cannot be regarded as being contrary to the principle of equal treatment ... ."

Although the margin of discretion was considered in those decisions (being described as a reasonable margin, rather than a broad margin), it was regarded as settled that for justification the means adopted to meet the legitimate aim of social policy must be both suitable and requisite.

25. Ms Lieven stressed the broad margin of discretion. Mr Drabble stressed that in Seymour-Smith the ECJ rejected the United Kingdom government's submission described in paragraph 73 of the judgment. It was not enough for the government simply to show that it was reasonably entitled to consider that the measure would advance a social policy aim. The broad margin of discretion had to be balanced against fundamental principles of Community law, which would include equality of treatment between the sexes. That seems to me right, and not to be inconsistent with any of Ms Lieven's submissions. It is all a question of balance in the circumstances of particular cases, or, in other words, proportionality. Similarly, there was an interesting statement in paragraph 72 of the ECJ's judgment that relevant factors included the possibility of achieving the social policy aim by other means. However, it was a matter of agreement between Ms Lieven and Mr Drabble that the mere fact that other means could have been chosen does not exclude the existence of objective justification (as is shown by many cases including Postuma-van Damme). Again it is a question of balance. It is therefore necessary to consider the arguments made on the particular circumstances of the claimant's case, and I deal with the more detailed aspects of the Community law test in the process of doing that.
26. The first step for the Secretary of State in attempting the show objective justification is to identify the social policy aim which is said to provide the justification. In her written skeleton argument Ms Lieven stated that the purpose of child additions to income-based JSA is to provide benefit to cover the costs of the maintenance of a child, for which purpose it was reasonable for the Secretary of State to ascertain who has responsibility for a child. I presume that that was intended to extend to the family premium as well. At the oral hearing, when specifically asked to define the social policy aim relied on, she identified it as that the elements of income-based JSA which are linked to the presence of a child in the claimant's family should be paid to the person who is responsible for the child. She said that that was a legitimate aim. I accept that second formulation as specifically related to regulation 77 of the JSA Regulations, in the context of the broader aim mentioned in the skeleton argument. Ms Lieven's submission was then that the Secretary of State was reasonably entitled when making the JSA Regulations to consider that it was suitable (and necessary, if that was the test) to make the issue of responsibility depend on the receipt of child benefit, and that his choice of that rule in regulation 77 was within the broad or reasonable margin of discretion allowed under Article 4(1) of Directive 79/7.
27. A number of factors were put forward in support of that submission. Very briefly, it was said that there were considerable advantages in the administration of JSA and for claimants. There was a clear and straightforward rule to be applied by officers deciding income-based JSA claims which gave rise to no problems in the vast majority of cases. Where there was some question of the sharing of responsibility for children, claimants were not exposed to two sets of possibly intrusive investigations into personal matters. It was mentioned that a witness statement from Mr Craig Binns, a senior executive officer in the Department for Work and Pensions, in charge of legislative and implementation requirements for issues including premiums and personal allowances in income-related benefits, gave evidence of difficulties which were experienced in deciding cases under the income support rules as they were before amendment in 1993, when there was a separate test in terms of primary responsibility for the child. It was submitted that the test in regulation avoided the difficulties which would arise if one person were to be treated as responsible for a child for child benefit purposes and another person were treated as responsible for income-based JSA purposes. That was said to be an inconsistency wrong in itself, or possibly by reference to an argument that the JSA rates were set on the assumption that child benefit would be deducted as income. It was also said that, since the child benefit test identified the primary carer for a child, who was likely to bear the main burden of capital expenditure on the child, it was wrong for the JSA allowances and premiums to go to anyone else. The benefit should go to the person who incurred the major expenditure on the maintenance of the child. Also, if a person in receipt of child benefit and entitled to income-based JSA or income support did not qualify for those allowances and premiums, the child benefit would nonetheless be deducted as income.
28. Ms Lieven noted that the child benefit rules themselves were not under challenge in the present case, and in any case it was submitted that any discrimination against men in those rules was amply justified by the aim of providing an independent income to the woman where parents were living together. In particular, it was submitted that the exercise of discretion by the Secretary of State under paragraph 5 of Schedule 10 to the Social Security Contributions and Benefits Act 1992 was gender-neutral. There was flexibility in the child benefit scheme to reflect changes in the residence of the child, with a short delay (three weeks) in changing entitlement to enable decisions to be made and the parents to make any necessary arrangements. Ms Lieven submitted that the questions involved and evidence relevant was essentially the same in relation to both child benefit and income-based JSA, so that it was entirely rational to make the answer to the question for child benefit purposes conclusive for income-based JSA purposes. There would be difficulties at the margins and some hard cases involved whatever rule was adopted for deciding who was responsible for a child. The existence of such difficulties or hard cases did not undermine the justification for a rule which worked with no difficulty in the great majority of cases.
29. Submissions were also made about the consequences of allowing a splitting of the JSA personal allowances and family premium within a benefit week, and on the difficulties which might arise if a person moved in an out of meeting the conditions of entitlement for income support as well as, or instead of, the conditions of entitlement to income-based JSA. I shall come back to those questions as necessary below. They do not seem to me to be relevant to the main issue of discrimination and justification.
30. I do not need to set out all of Mr Drabble's submissions on the issue of justification, as I have not been persuaded by the submissions for the Secretary of State. However, I should mention two major elements in his submissions. The first was that income-based JSA is a subsistence benefit. It is a last resort benefit which is means-tested, so that most other social security benefits (including child benefit) and other sources of income are taken into account against fixed personal allowances and premiums in determining the amount of entitlement. The structure of personal allowances and premiums, with provision for housing costs in some circumstances, was designed to tailor the amount of benefit to the current actual needs of particular claimants, albeit through the use of fairly broad categories of circumstances. There could be adjustments on a week by week basis as circumstances changed. Mr Drabble stressed the amounts involved. Using weekly figures as at the date of claim, the claimant's personal allowance as a single person (all that he was awarded in the decision of 7 January 1998) was £49.15. The personal allowance for a child aged over 11 and under 16 was £24.75. The family premium for a lone parent was £15.75. Mr Drabble stressed that the claimant did in fact have real financial needs stemming from his responsibility for his daughters for about half of the time. The effect of not having entitlement to any personal allowance at all for his daughters or to the family premium was to leave his income very substantially short of what the JSA legislation recognised as necessary for the proper care of children.
31. Mr Drabble made two particular points following on from that. One was that the nature and extent of the effect of the admitted discrimination had to be taken into account in deciding whether the discrimination was objectively justified. The second was that income-based JSA as a subsistence benefit designed to meet needs was very different in its nature from child benefit, as described in paragraphs 16 and 17 of Mr Sprawson's witness statement:

"It [child benefit] is a non-contributory benefit, funded from general taxation .... It is an unusual social security benefit in that it is `universal', being paid, tax free, irrespective of the means of the recipient. Consequently , it has the highest take-up of any non-contributory benefit, and the second highest of any benefit behind the state pension, being paid to around 7 million families in respect of nearly 13 million children. ... Whilst there are a very high number of claimants for CHB, the amounts payable are relatively small, as compared with other social security benefits. This is because CHB has never been intended to meet the full costs of bringing up a child, but is intended as a contribution towards those costs."

As at December 1997, the weekly rates of child benefit were £11.05 for the first or only child (£17.10 in the case of a lone parent) and £9.00 for subsequent children. The special rate for lone parents was removed in July 1998. Mr Drabble submitted that the factors of large numbers of claimants being entitled to relatively small weekly amounts (not linked to current actual needs), which would point towards simple rules and against frequent changes of claimant or amount, did not apply to income-based JSA.

32. The other major element of the submissions for the claimant was that his was not a case of a small anomaly at the margins, but demonstrated a fundamental structural problem in the way in which the costs of caring for children were taken into account in income-based JSA. Mr Drabble submitted that the effect on the claimant could not be dismissed as merely an example of a small number of inevitable hard cases on the wrong side of a borderline.
33. I accept both of those submissions of Mr Drabble and adopt them as showing the essential background to the question which I must decide. That is subject to the proviso that I must look in the current context at the results of the discrimination on the ground of sex which is complained of, not at hardship or unfairness arising from other causes.
34. In evaluating the case made for the Secretary of State it is necessary to look in a little more detail at the operation of the child benefit system. First, it seems to me very important that the priority rules in Schedule 10 do not purport to determine who is or is to be treated as responsible for a child. They determine who is to be entitled to child benefit in respect of a child. As noted in paragraph 8 above, the child benefit legislation recognises a very wide range of categories of person as responsible for a child.
35. Among the results are the following. It is very common, and will I think be the case in the vast majority of cases, that more than one person satisfies the tests of responsibility for a child. The priority rules will settle most of those cases straightforwardly by the preference for the woman in the case of parents living together. Where the parents separate and a child clearly lives and is maintained preponderantly by one parent, no doubt the Secretary of State's discretion under paragraph 5 of Schedule 10 would be exercised to give entitlement to that parent (see paragraph 24 of Mr Sprawson's witness statement). However, such a decision does not as such entail a decision that the other parent is not responsible for the child. It is a decision on entitlement. When a child lives and is maintained roughly equally with both parents, the exercise of the Secretary of State's discretion is much more difficult, but Mr Sprawson's description of the process in the case for which his witness statement was prepared is instructive (paragraph 7). The mother was entitled to child benefit when the father made a claim in respect of a child whose care was shared equally. They could not agree on priority. The mother automatically remained entitled for the three weeks after the father's claim, and it was decided that she should remain entitled after the expiry of the three weeks:

"The basis for the latter decision was that, since the care of [the child] appeared to be shared equally, the [father] has failed to demonstrate that he had the greater balance of care for [the child]. Accordingly, the status quo would not be disturbed."

The claimant here would no doubt say that that shows clearly the route by which the discrimination against men reaches into income-based JSA and income support. But the present point is that the making of such a decision can hardly be regarded as an identification of one person who is more responsible for a child than other or of a primary carer. It is merely a decision on entitlement. Moreover, it is made in a climate where there is a moral sense that child benefit should be spent on the children (see the summary of research findings in paragraph 18 of Mr Sprawson's witness statement). There could be a legitimate expectation (maybe unfulfilled in cases of intransigent conflict) that some resources might be transferred from the parent in receipt of child benefit to the other parent in cases of equally shared care.

36. A further result of the structure of the child benefit system is shown in the circumstances of the present case, as they were prior to 25 November 1998. The priority rules in Schedule 10 to the Social Security Contributions and Benefits Act 1992 only come into play when there are competing claims for child benefit. If only one person claims child benefit, and comes within the wide and loose rules for responsibility, it does not matter that some other person takes a far bigger role in the care of the child in question. But since regulation 77 of the JSA Regulations makes the test of responsibility the receipt of child benefit, the other person, with the primary responsibility in fact, could not qualify for a personal allowance for the child or for the family premium. The evidence here on the sharing of responsibility in fact is not nearly so clear-cut as in my example. However, in the claimant's case here, for the period during which he had not claimed child benefit for his daughters, he was debarred from the personal allowances for them and the family premium although there had been no decision for child benefit purposes relating to the comparative claims of him and his wife.
37. I conclude that those factors tend to undermine any arguments for the Secretary of State based on the consistency of decisions between benefits. Taking into account the nature and structure of income-based JSA as described above, I consider that the test for responsibility for a child in regulation 77(1) of the JSA Regulations, in terms of receipt of child benefit, is not a suitable or necessary means of achieving the social policy aim put forward by the Secretary of State. The test does not adequately identify the person who is responsible for the child or young person in question, or even the person who bears the greater proportion of the responsibility.
38. In addition, I take into account the possibility of achieving the social policy aim by other means (see paragraph 72 of the ECJ's judgment in Seymour-Smith). It has already been mentioned that before October 1993 the income support test had been in terms of primary responsibility for a child. There is Court of Appeal authority (Whelan v Chief Adjudication Officer, 21 October 1994) that that was to be judged on a week by week basis. Only if the child spent equal amounts of time in the competing households or if there was real doubt about who was primarily responsible in a particular week was the child to be treated as the responsibility of the person receiving child benefit in respect of the child in question. Regulation 15 of the Income Support (General) Regulations 1987 was amended in 1993 to the form which was in substance adopted in regulation 77 of the JSA Regulations. Although there is evidence of problems in decision-making in income support on the old rule (see paragraph 10 of Mr Binns' witness statement) I discount the suggestion there that a situation where a person not in receipt of child benefit was treated as responsible for a child in itself indicated a problem. The difference between the nature of child benefit (as described above) and the nature of income support and income-based JSA as subsistence benefits seeking to meet current needs on a week by week basis means that there is no necessary inconsistency in such a result. It can also be argued that a test of primary responsibility would operate perfectly satisfactorily in the vast majority of cases, where the parents of a child were living together or, where they were separated, the primary responsibility plainly resided in one parent rather than the other.
39. Further, I note (although this was not discussed at the oral hearing) that the legislation on other income-related benefits does not adopt receipt of child benefit as an exhaustive test of responsibility for a child. For working families' tax credit, a child's membership of the claimant's family is an essential part of the conditions of entitlement and the number of children affects the amount of the credit payable. "Family" is defined in section 137(1) of the Social Security Contributions and Benefits Act 1992 in terms of responsibility. Regulation 7(1) of the Family Credit (General) Regulations 1987 makes the primary test that a person is to be treated as responsible for a child or young person who is normally living with that person. Only where a child or young person spends equal amounts of time in different households or there is a question as to which household the child is living in, is the child to be treated as normally living with the person receiving child benefit (regulation 7(2)). In decision CFC/1537/1995 Mr Commissioner Rowland held that regulation 7(2) only applies in cases of equal sharing over a period or of real doubt. It is not brought into play by the mere existence of a factual dispute. The regulation has been in that form for family credit since it came into force in April 1988 and for the replacement benefit, working families' tax credit, since 5 October 1999. It was not been amended in the adaptation of the Regulations to the new benefit.
40. In housing benefit and in council tax benefit, there is a structure of premiums and personal allowances which is essentially the same as in income support and income-based JSA. Regulation 14 of the Housing Benefit (General) Regulations 1987 is in the same terms as regulation 7 of the Family Credit (General) Regulations and has been since it came into force in April 1988. Regulation 6 of the Council Tax Benefit (General) Regulations 1992 is also in the same terms as regulation 7 of the Family Credit (General) Regulations and has been since the Regulations came into force on 1 April 1993.
41. As I have accepted in paragraph 25 above, the fact that a social policy aim could have been achieved by other means than the measure which is challenged under Directive 79/7 does not in itself mean that it cannot be objectively justified. However, it seems to me to be a weighty factor against justification that in the legislation for three other income-related benefits a different test for determining who is responsible for a child has been adopted and maintained. That different test does not involve an automatic and exhaustive link to receipt of child benefit as the test, and by virtue of the interpretation set out in Commissioner's decision CFC/1537/1995 does not achieve that result indirectly. It leaves open the possibility, especially in circumstances where only one person has claimed child benefit, of a different person being found on the facts to be responsible for the child in question. The application of the "normally living with" test would be expected to give rise to all the problems and difficulties mentioned on behalf of the Secretary of State in relation to income-based JSA if there were not the automatic and exhaustive link to receipt of child benefit. However, the Secretary of State has been content to leave the "normally living with" test in place for family credit, working families' tax credit, housing benefit and council tax benefit.
42. When I set all those factors against the discrimination on the ground of sex admitted to exist in regulation 77 of the JSA Regulations, I am quite unable to find that the Secretary of State has shown that the discrimination is objectively justified by any of the arguments put forward. That is so even adopting whatever interpretation of the Community law test is most generous to the Secretary of State.

The extent of the unjustified discrimination

43. There is a difficult issue as to how much of regulation 77 of the JSA Regulations is affected by that conclusion. That is one of the issues on which I required further written submissions after the oral hearing. There is no doubt that the rule in regulation 77(1) (and the consequential provision in regulation 77(2)) is affected. So also is the rule in regulation 77(3)(b). However, the first crucial issue is whether the rule in regulation 77(5), that a child or young person is to be treated as the responsibility of only one person in any benefit week, is affected. In essence, Mr Drabble's submission was that that rule was part and parcel of the discriminatory structure of regulation 77 and fell along with regulation 77(1). The submission on behalf of the Secretary of State, in particular in the further written submission dated 25 July 2002 (from Mr Whitham), was that once the discriminatory link to child benefit in regulation 77(1) was removed, regulation 77(5) stood in its own right and was either not discriminatory or was justified as preventing a double payment for the same needs. There was also a suggestion that there would be an "administrative nightmare" if income-based JSA could be shared on a part-week basis in all cases where children lived in different households for a part of a week.
44. I reject Mr Drabble's submission on this point. The evidence of discrimination on the ground of sex put forward on behalf of the claimant did not really bite on this issue. Although in Ms Holtermann's paper she mentioned the rule in regulation 77(5) as part of her description of the legislative structure, she was concerned with a situation in which the claimant was unable to qualify for the children's personal allowances or for the family premium even for benefit week in which his daughters lived with him for complete weeks, because his wife was in receipt of child benefit. The discriminatory effect of the link to receipt of child benefit has been accepted. I do not see why I should not look at what is left in the regulation after that rule is removed.
45. There is really no statistical evidence, but I am not going to impose yet further delay by trying to obtain any. I think that I can look at matters generally. In so far as the effect of regulation 77(5) is to prevent two different people from being treated as responsible for a child for the same benefit period (whether that is a week or a day), there is a link to the discriminatory rule tying responsibility exclusively to receipt of child benefit. However, it seems to me that that effect is amply justified by the principle that the same need should not be met twice by the same benefit. In so far as the effect of regulation 77(5) is that responsibility for a child must (except in particular limited cases) be attributed for the whole of each benefit week, in my judgment that effect has not been shown to be discriminatory on the ground of sex. Once the discriminatory link to child benefit is removed it seems to me that that rule is neutral in its effect. If it was not, I would be inclined to say that it was within the broad margin of discretion available to Member States to say whether a benefit, or some element of it, could be paid to any particular person on a part-week basis or only on a whole-week basis.
46. The second crucial issue relates to regulation 77(3)(a), which in terms applies where no-one is receiving child benefit in respect of a child. It then provides that the person to be treated as responsible for the child is the person with whom the child or young person usually lives. In paragraph 14 of his further written submission dated 7 October 2002, Mr Drabble submitted that that rule was indirectly discriminatory on the ground of sex as women would be more likely than men to be the majority carer of a child, so that the adoption of the "usually lives with" rule would "perpetuate the situation where the substantial, but minority, carers were left with an income substantially below subsistence level". Assuming (without statistical evidence) that that is so, in my judgment that rule would also be objectively justified. It seems to me to be within the broad margin of discretion described above for responsibility for a child to be determined by a factual test in terms of the person with whom the child usually lives, which in its nature requires consideration of the circumstances over time, rather than within each week. If as a matter of fact more women than men will satisfy that test, I consider that the discrimination is objectively justified.
47. I therefore conclude that regulation 77(3)(a) and (5) is not inconsistent with Article 4 of Directive 79/7 and can stand despite my ruling that regulation 77(1),(2) and (3)(b) is inconsistent with the Directive.

What rule is to be applied on responsibility for a child

48. There remains an exceptionally difficult question of law on the effect on the rule to be applied to the claimant of my conclusion that regulation 77(1), (2) and (3)(b) of the JSA Regulations is inconsistent with Directive 79/7. In many ways it is the most difficult of the questions which I have had to decide in this case.
49. Mr Drabble naturally initially referred to the basic principle of Community law that an individual who is adversely affected in such circumstances is entitled as against the state to have any inconsistent provision disapplied. He also cited the principle set out in paragraph 36 of the ECJ's judgment in Johnson v Chief Adjudication Officer (Case C-31/90) [1991] ECR I-3723 (which has been repeated in substance in many other cases):

"In the absence of appropriate measures for implementing Article 4 of Directive 79/7/EEC, women placed at a disadvantage by the maintenance of the discrimination are entitled to be treated in the same manner and to have the same rules applied to them as men who are in the same situation, since, where the Directive has not been implemented correctly, those rules remain the only valid point of reference."

Mr Drabble submitted that, since a woman in the claimant's circumstances would qualify for the children's personal allowances and for the family premium, the claimant must also be found to qualify.

50. I had doubts about the mechanism by which that result could come about and therefore, as the issue had not been extensively discussed at the oral hearing, directed further written submissions. Mr Whitham's submission of 25 July 2002 on behalf of the Secretary of State argued that a finding that regulation 77(1) was unlawfully discriminatory would mean that the test of receipt of child benefit could not be applied to male or female claimants. It was said that if that test was maintained for female claimants there would be inequality of treatment. Mr Drabble's submission of 7 October 2002 argued as follows in paragraphs 10 to 13, having stressed the principle of direct effect of Directive 79/7 and the normal remedy of "rounding up" to the rules applied to the advantaged group:

"10. Applying that approach here, the provisions that produce the discrimination are as follows:-

(i) The requirement that an individual be responsible for a child. This requirement is applied to both sexes and is neutral.

(ii) The requirement that the individual be in receipt of child benefit in reg 77(1). This is the impugned provision. It is the normal route for entitlement in the case of the female comparator.

(iii) The provision in reg 77(3)(a). This is an alternative to 77(1); and cannot be in play if the condition created by 77(1) is satisfied.

11. On the basis of these provisions, it will be seen that entitlement to child benefit works as a `passport' to the right to dependants' additions. The female comparator who is in receipt of child benefit qualifies on that basis alone and never has to satisfy, in any given week or at all, the requirement of 77(3)(a). To apply that condition to the male comparator would be to perpetuate the discrimination. The only way to remove the discrimination is to `disapply' both 77(1) and 77(3); or, more accurately, to recognise that 77(3) never has a role, even as a matter of purely domestic law, in a situation where child benefit is in payment. This is not a case of attempting to sever, in a way which would be appropriate in a domestic ultra vires case, the different parts of regulation 77. Instead, the machinery must be operated so as to place the man in as advantageous a position as the woman.

12. From this perspective, it will be seen that regulation 77(5) must also be disapplied. Given that the female comparator must continue to qualify on the basis of her domestic entitlement, equality cannot be achieved otherwise.

13. Obviously, it would be open to the UK government to legislate so as to deal with shared care cases in a way which is not discriminatory. Until it does, however, [the claimant's] directly effective right not to have the discriminatory provision in regulation 77(1) applied against him must prevail."

Mr Drabble is there submitting that both the claimant and his wife should be found to be responsible for his daughters during the weeks in which he had factual responsibility for them.

51. Neither Mr Whitham nor Mr Drabble cited any ECJ or domestic decisions directly supporting their respective solutions. Mr Drabble did refer to pages 290 to 297 of Ellis, EC Sex Equality Law (2nd ed, 1998). However, he did not take account of the mention on page 297 of that book of the Opinion of Advocate General Van Gerven in Jackson and Cresswell v Chief Adjudication Officer (Cases 63/91 and 64/91) [1992] I-4737, where the conundrum which arises in cases of indirect discrimination is clearly stated. What was under challenge there was the absence in the supplementary benefit and income support schemes of any provision to allow childminding expenses to be deducted from income to be taken into account in calculating benefit. That was said to be indirectly discriminatory against lone parents and therefore women. The Advocate General was required to give guidance on how the appellants' rights could be corrected if discrimination were found and the relevant directives (79/7 and 76/207) were applicable. In the event, the ECJ found that supplementary benefit and income support fell outside the material scope of both directives, so that it did not have to deal with this question.
52. The Advocate General said this in paragraph 29 of his Opinion (omitting footnotes):

"The Court has consistently held that the national court may not apply the provision which is contrary to Community law. Yet the problem in the situation in question is that the frame of reference which the Court of Justice offers the national court in equal treatment cases with regard to remedies for individuals does not provide a solution here. In the event that discrimination is established, the Court requires the national court invariably to apply the same rules to the members of the group placed at a disadvantage, be they men or women, as are applied to members of the other group. That approach affords no comfort to the appellants in the main proceedings: even in the case of lone fathers, childminding expenses are not deductible from income from vocational training (supplementary allowance) or from income from work (income support)."

The Advocate General then said that the principle of construing national law consistently with a directive would not seem to help with a directive which has direct effect or where the national rule is unambiguously clear. He went on:

"Consequently, as Community law stands at present, the most realistic solution seems to me for the national court to decide, where appropriate, at the request of the appellants in the main proceedings that, having regard to the criteria developed in this connection, the British authorities have not complied with their obligations under Directives 76/207 and 79/7, and to declare them liable to pay compensation to Ms Jackson and Ms Cresswell on the basis of the rules specified in the Court's case-law, in particular in the recent judgment in Francovich and Bonifaci."

53. Advocate General Van Gerven was one of the most distinguished and learned judges to hold that office. If he was forced, in effect, to throw up his hands and say that the only option was the payment of compensation by the state for a breach of the obligation to implement a directive, then the conundrum is a fearsome one indeed. It seems to me to be inherent in the nature of indirect discrimination that the valid reference point mentioned in Johnson and other cases will often not exist (depending on the nature of the condition which the advantaged group can satisfy more easily than the disadvantaged group). So, here, it would be no comfort to the claimant to have the same rules applied to him as to a woman, as, at least down to 21 December 1998, he was not in receipt of child benefit. Nor is there any obvious valid point of reference. It is remarkable that there was no other ECJ authority for Mrs Ellis to cite in 1998. I have not been able to find any such authority, nor have I found any English authority which deals with the problem expressly.
54. I would be very reluctant to conclude that, in the absence of a valid reference point under which the claimant can sensibly have the rule in regulation 77(1) of the JSA Regulations applied to him as it would be applied to a woman, the only remedy is a claim for compensation. I have no power to award such compensation and a separate claim would have to be made. Instead, I rely on the principle stated in paragraph 33 of the ECJ's judgment in Van Gemert-Derks v Bestuur van de Nieuwe Industriele Bedrijfsvereniging (Case C-337/91) [1993] ECR I-5435:

"33. Although Article 4(1) of Directive 79/7 has the recognized effect of excluding the application of an incompatible national provision, it does not restrict the power of the national courts to apply such procedures of domestic law as will safeguard the individual rights conferred by Community law."

Therefore, I consider what ruling I can properly make in relation to regulation 77 of the JSA Regulations which will safeguard the claimant's rights under Article 4 of Directive 79/7.

55. Mr Drabble's case for the claimant is powerfully argued. I accept that I cannot simply say that regulation 77(1) is not to be applied to the claimant as a member of the disadvantaged class (men), leaving him to satisfy regulation 77(3)(a) if he can, while women can still have regulation 77(1) applied to them. The discrimination would not be removed and the claimant's Community rights would not have been safeguarded. However, I do not accept Mr Drabble's solution. That seems to me to do too much violence to the terms of regulation 77 as a whole, extending into the disapplication of parts of the regulation which I have concluded do not involve unjustified discrimination on the grounds of sex and which were not directly impugned in the case made for the claimant. Rather, I have concluded that the process of disapplication must be extended in order to safeguard the claimant's Community rights while interfering with the integrity of the terms of regulation 77 to the most limited extent necessary. In this particular case of indirect discrimination, the ruling which I make is that regulation 77(1) is not to be applied to either men or women in cases where the individuals concerned fall within the personal scope of Directive 79/7.
56. I find support for that ruling in the outcome of the recent decisions of a Tribunal of Commissioners on cases concerning regulation 51(2)(c) of the JSA Regulations and its application to part-time staff employed in schools and colleges. In its decision on one group of appeals (CJSA/5732/1999, CJSA/5836/1999 and CJSA/426/1999), the Tribunal found that regulation 51(2)(c) (which set out a special rule for calculating the hours of work for people who worked at educational establishment and whose hours fluctuated over an annual cycle) was inconsistent with Article 4(1) of Directive 79/7 as it discriminated against women and was not objectively justified. In consequence, it ruled that regulation 51(2)(c) was of no effect and used the language of "striking down" (paragraphs 21, 29 and 31). I have some personal reservations about the use of that language and the Tribunal did not expressly address the conundrum which troubles me, but its ruling was plainly had the effect that regulation 51(2)(c) was not to be applied to either women or men. That is shown by its decision in the second group of appeals (CJSA/2079/1998, CJSA/4014/1998 and CJSA/426/1999), which concerned the application in particular cases of the rest of regulation 51, regulation 51(2)(c) having been taken out of consideration. Two of those appeals concerned female claimants, but one (CJSA/426/1999) concerned a male claimant. The Tribunal took no account of regulation 51(2)(c) in his case just as in the others, without considering any additional discussion necessary.
57. Whether or not those decisions of the Tribunal of Commissioners stand for a principle of law which is formally binding on me, in the absence of express discussion of the point now before, they must powerfully persuasive towards the result which I have reached by independent reasoning.
58. I add briefly that I have considered the decision of the Court of Appeal in Gingi v Secretary of State for Work and Pensions, to be reported as R(IS) 5/02, where an "overspill" effect of Community law was rejected. It was held that if a provision of English law was to be disapplied in cases falling within the ambit of Community law that did not mean that the provision ceased to have any legal effect at all and could not be applied in cases outside the ambit of Community law. That incidentally is one reason why I do not like the language of "striking down" and have added the condition at the very end of paragraph 55 above. However, there is no "overspill" where what is being worked out is the extent of the disapplication of a provision of English law as between the advantaged and disadvantaged groups identified under a directly effective directive.
59. In summary, my decision on the law is that regulation 77(1), (2) and (3)(b) of the JSA Regulations is not to be applied to any persons within the personal scope of Directive 79/7, with the result that the question of whether the claimant is to be treated as responsible for Heidi and Alisha is to be determined by applying regulation 77(3)(a) and (5). That involves applying the test of with whom the child usually lives. I hold, by analogy with what was held in decision CFC/1537/1995 about the test of with whom a child normally lives, that the question is not to be judged by looking at the position within each benefit week, but by looking at what is usual by reference to a longer period. Since I have held that, by virtue of regulation 77(5), only one person may be treated as responsible for a child or young person in each benefit week, the test in regulation 77(3)(a) must be applied so as to resolve any conflict between those competing to be treated as responsible.

The decision on the facts

60. As noted in paragraph 3 above, the evidence before the appeal tribunal on the precise periods for which Heidi and Alisha lived with the claimant was not all that clear. The court order of 6 October 1997 was not clear on the point on changeover days at which the daughters went from one parent to the other.
61. In relation to Alisha, the younger daughter, it seems that on any basis, she spent the majority of her time with the claimant's wife. I conclude that for the period down to 8 January 1998, Alisha did not usually live with the claimant.
62. In relation to Heidi, it looks, on the assumption (which appears not to be disputed) that the terms of the court order were followed, as though she spent more nights with the claimant's wife than with the claimant. Heidi was to reside with her mother from Thursday to Monday in school term times, so probably spent four nights a week with her. However, Heidi was also to reside with her father from Monday to Thursday in those weeks. That covers four days and depending on the mechanics of the changeover might represent more than half of the total hours in the week. The claimant's own calculation on his "shared residence claim" would seem to point to Heidi living with him for less than half the days in the year, but it is not clear what period that calculation covered. In addition, there was a significant concession by Mr Whitham on behalf of the Secretary of State in the submission of 25 July 2002. He stated that the evidence from Heidi was that at the time that the claimant made his child benefit claim in November 1998 she usually lived with him for most of the week. Mr Whitham was evidently prepared to accept that that situation had been in place from the beginning of the JSA claim, as he submitted that (if the Secretary of State's case on justification were rejected) the claimant should be awarded the family premium and a personal allowance for Heidi from the beginning of his entitlement income-based JSA.
63. When Mr Drabble's submission of 7 October 2002 was sent in by the claimant's solicitors they said that the claimant wished to correct some inaccuracies in paragraphs 14 to 17 of Mr Whitham's submission and that a further letter would follow shortly. However, after a reminder was sent by the Commissioners' office the solicitors replied on 25 November 2002 that they did not wish to raise any further points of fact at the present stage. Thus I have no further evidence beyond what I have already described. The claimant's reservations may have related to some of what Mr Whitham said about the more recent circumstances.
64. In those circumstances I accept and adopt Mr Whitham's submission and conclude that as at 16 December 1997 and down to 7 January 1998, Heidi usually lived with the claimant. Thus he is to be treated as responsible for her under regulation 77 of the JSA Regulations and his entitlement to income-based JSA should be calculated with the inclusion in his applicable amount of the family premium and a personal allowance for Heidi. In accordance with the agreement between the parties recorded in paragraph 16 above, the claimant's entitlement to income-based JSA for the remainder of the period down to the present is to be calculated by the Secretary of State on the basis of the principles of law and findings of fact I have set out and taking account of any subsequent changes of the factual circumstances as agreed with the claimant and his representatives. If agreement cannot be reached on what changes of factual circumstances have occurred or on what the consequences are on the claimant's entitlement to income-based JSA, the appeal is to be returned to me (or, if necessary, to another Commissioner) for further decision.
65. My decision to that effect is set out in paragraph 1 above.

(Signed) J Mesher

Commissioner

Date: 13 January 2003