CIB/3933/2001

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	I dismiss the claimant’s appeal against the decision of the Barnsley appeal tribunal dated 20 June 2001.

REASONS

Introduction

2.	I held an oral hearing of this appeal on 2 December 2003 in Doncaster.  The claimant appeared in person.  The Secretary of State was represented by Ms Marie Demetriou of Counsel, instructed by Ms Deborah Haywood of the Office of the Solicitor to the Department of Health and the Department for Work and Pensions.

3.	This appeal is concerned with the claimant’s entitlement to increases of incapacity benefit in respect of his two children and, in particular, with the question whether the statutory link between entitlement to such increases of benefit and entitlement to child benefit is compatible with the law of the European Union.  Before turning to the central issue, it is necessary to set out the relevant domestic legislation and the history of this case.

Domestic legislation

4.	Increases in respect of children have been abolished, subject to a saving provision for existing beneficiaries, by section 60 of, and Schedule 6 to, the Tax Credits Act 2002, with effect from April 2003.  However, at the material time, section 80(1) and (2) of the Social Security Contributions and Benefits Act 1992 provided:

“(1)	… the weekly rate of any benefit to which this subsection applies shall, for any period for which the beneficiary is entitled to child benefit in respect of a child or children, be increased in respect of that child, or each respectively of those children, by the amount specified in relation to the benefit in question …
(2)	 Subsection (1) above applies to –
	(a)	[repealed]
(b)	short-term incapacity benefit at the higher rate or where the beneficiary is over pensionable age;
(c)	…; and
(d)	…

Section 81(1) and (2) provided:

“(1)	Where, apart from this subsection, a person is entitled to receive, in respect of a particular child, payment of an amount by way of an increase under section 80 above of any benefit, that amount shall not be payable unless one of the conditions specified in subsection (2) below is satisfied.
 (2)	Those conditions are –
(a)	that the beneficiary would be treated for the purposes of Part IX of this Act as having the child living with him; or
(b)	…”

5.	Part IX of the Act makes provision for child benefit.  Section 141 provides:

“A person who is responsible for one or more children in any week shall be entitled, subject to the provisions of this Part of this Act, to a benefit (to be known as “child benefit”) for that week in respect of the child or each of the children for whom he is responsible.

Section 143(1) provides:

“For the purposes of this Part of this Act a person shall be treated as responsible for a child in any week if –
(a)	he has the child living with him in that week; or
(b)	…”

Section 144(3) provides:

“Where apart from this subsection, two or more persons would be entitled to child benefit in respect of the same child for the same week, one of them only shall be entitled; and the question which of them is entitled shall be determined in accordance with Schedule 10 to this Act.”

Paragraphs 1 to 5 of Schedule 10 provide:

“Person with prior award

1. (1)	Subject to sub-paragraph (2) below, as between a person claiming child benefit in respect of a child for any week and a person to whom child benefit has already been awarded when the claim is made, the latter shall be entitled.
    (2)	Sub-paragraph (1) above shall not confer any priority where the week to which the claim relates is later than the third week following that in which the claim is made.

Person having child living with him

2.	Subject to paragraph 1 above, as between a person entitled for any week by virtue of paragraph (a) of subsection (1) of section 143 above and a person entitled by virtue of paragraph (b) of that subsection the former shall be entitled.

Husband and wife

3.	Subject to paragraphs 1 and 2 above, as between a husband and wife living together the wife shall be entitled.

Parents

4. (1)	Subject to paragraphs 1 to 3 above, as between a person who is and one who is not the parent of the child the parent shall be entitled.
    (2)	Subject as aforesaid, as between two persons residing together who are parents of the child but not husband and wife, the mother shall be entitled.

Other cases

5.	As between persons not falling within paragraphs 1 to 4 above, such one of them shall be entitled as they may jointly elect or, in default of election, as the Secretary of State may in his discretion determine.”

6.	By virtue of section 1 of the Social Security Administration Act 1992, it is a condition of entitlement to a benefit that a claim should have been made for it so that, in addition to the above rules, a person who has made a claim for child benefit always has priority over one who has not.  Regulations made under section 1 provide that a claim for child benefit may be effective for up to three months before the date of claim but section 13(2) of the same Act further provides:

“Except where regulations otherwise provide, no person shall be entitled to child benefit for any week on a claim made by him after that week if child benefit in respect of the same child has already been paid for that week to another person, whether or not that person was entitled to it.”

7.	Regulation 4A of the Social Security Benefit (Dependency) Regulations 1977 provides that in some circumstances a person living with a parent of a child who has been awarded child benefit may himself be treated as entitled to child benefit for the purposes of claiming entitlement to an increase of benefit under section 80.  Regulation 7 of the Social Security (Overlapping Benefits) Regulations 1979 makes provision for the adjustment of increases of benefit in respect of children in order to prevent duplication of payments.

The facts

8.	The facts of the case are not in dispute in so far as they are material to this appeal.  The claimant is divorced.  His two children lived with his ex-wife at the material time.  She was in receipt of child benefit in respect of them both of them.  On 31 March 1999, the claimant became incapable of work.  He was awarded short-term incapacity benefit at the lower rate from 3 April 1999 and became entitled to the higher rate from 13 October 1999.  On 20 September 1999, he claimed an increase of incapacity benefit in respect of his children.  This claim was disallowed, apparently on the day it was received, on the simple ground that the claimant was not entitled to child benefit, as required by section 80(1) of the Social Security Contributions and Benefits Act 1992.  

9.	On 8 December 1999, the claimant claimed child benefit.  It was accepted that the claimant was “responsible for” his children under section 143(1)(a) of the Social Security Contributions and Benefits Act 1992 because they lived with him for part of the time.  However, his claim for child benefit was disallowed.  In respect of the three months before the date of claim, it was disallowed under section 13(2) of the Social Security Administration Act 1992, because child benefit was in payment to his ex-wife.  In respect of the next three weeks, it was disallowed under paragraph 1 of Schedule 10 to the Social Security Contributions and Benefits Act 1992 for the same reason.  In respect of the subsequent period, it was disallowed by virtue of a decision of the Secretary of State made under paragraph 5 of that Schedule.  The Secretary of State appears to have concluded that the children lived with their mother for more days in a week than they lived with their father.

10.	The claimant appealed against the disallowance of child benefit.  By virtue of paragraph 4 of Schedule 2 to the Social Security Act 1998, he was not entitled to appeal against the determination made under paragraph 5 of Schedule 1 to the Social Security Contributions and Benefits Act 1992.  However, he argued that the legislation was discriminatory and should be disapplied as being contrary to European Union law.  His appeal failed before a tribunal and also before Mr Commissioner Mesher in CF/3703/00.  Mr Commissioner Mesher decided that, although the claimant fell within the personal scope of both Regulation (EEC) No 1612/68 and Regulation (EEC) No 1408/71, neither of those pieces of legislation conferred on him any relevant substantive right to child benefit.  He also pointed out that it is quite clear that Council Directive 79/7/EEC does not apply to child benefit (see Article 3(2)) and that the enforcement of fundamental rights by the European Court of Justice does not mean that any national legal provision inconsistent with a fundamental right must be disapplied where there provision does not fall within the scope of Regulations or Directives of the European Union.  Finally, he explained that the Human Rights Act 1998 did not assist the claimant because the matters complained about were enshrined in unambiguous primary legislation, which cannot be disregarded by a Commissioner, and also because the appeal was concerned with entitlement to benefit in respect of a period before the Human Rights Act 1998 came into force.

11.	Meanwhile, a late letter of appeal had been accepted as a valid appeal against the decision disallowing the increase of incapacity benefit.  The claimant raised before the tribunal much the same arguments as he had raised before Mr Commissioner Mesher on the claim for child benefit.  On 20 June 2001, the Barnsley appeal tribunal dismissed the appeal.  The tribunal refused leave to appeal but, on 13 December 2001, Mr Commissioner Williams gave leave to appeal. At the same time, he deferred further consideration of the case to await the decision of Mr Commissioner Mesher in CJSA/4890/98.

CJSA/4890/98 and Council Directive 79/7/EEC

12.	In CJSA/4890/98, the claimant was separated from his wife and, as in the present case, their two children lived for part of each week with one parent and the rest of the week with the other.  The claimant claimed income-based jobseeker’s allowance and the issue was whether the calculation of his entitlement should have regard to the presence of his children in the household.  By virtue of regulation 83 of the Jobseeker’s Allowance Regulations 1996, that question turned on whether the claimant was “responsible for” his children and, by virtue of regulation 77, a person was treated as responsible for a child if in receipt of child benefit in respect of that child and only one person could be treated as responsible for each child.  As the children’s mother was initially in receipt of child benefit in respect of both children, the Secretary of State and a tribunal held that the claimant could not be treated as responsible for a child.  

13.	Before Mr Commissioner Mesher, it was contended on behalf of the claimant that the 1996 Regulations were inconsistent with the principle of equal treatment set out in Article 4(1) of Council Directive 79/7/EEC, which provides:

“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 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 dependants and the conditions governing the duration and retention of entitlement to benefits.”

The Court of Appeal had held that income-based jobseeker’s allowance fell within the scope of the Directive.

14.	In his decision, which was dated 13 January 2003, Mr Commissioner Mesher held that the link with child benefit gave rise to unjustified indirect discrimination on grounds of sex and so he disapplied the relevant part of regulation 77, holding that the question of who was responsible for each child was to be determined under regulation 77(3)(a) by deciding with which parent that child normally lived in the sense of living with that parent to a greater extent than the other.  An appeal against that decision is now listed for hearing by the Court of Appeal at the end of next month.

Preliminary matters

15.	Following the publication of Mr Commissioner Mesher’s decision in CJSA/4890/98, the Secretary of State suggested that, in the present case, it should be determined as a preliminary issue whether the claimant had his children living with him more often than they lived with his ex-wife and that otherwise this appeal should be further deferred to await the Court of Appeal’s decision.  Mr Commissioner Williams directed an oral hearing, which took place before me on 17 July 2003.  Following that hearing, I issued a direction dated 28 July 2003, in which I set out what I thought the issues on this appeal to be.  Since then, there have been further written submissions and the final oral hearing on 2 December 2003.  I declined to defer the case because it seemed to me that the issues arising in this appeal were very different from those arising in the appeal against CJSA/4890/98.

16.	The claimant has continued to rely on both Regulation (EEC) No 1612/68 and Regulation (EEC) No 1408/71 and also on the Human Rights Act 1998.  However, those pieces of legislation are as irrelevant in this appeal as they were in the claimant’s child benefit case, CF/3703/00.  I cannot improve on the reasoning of Mr Commissioner Mesher in CF/3703/00 as regards that legislation.  That reasoning applies equally to the present case.

17.	However, Article 3(2) of Council Directive 79/7/EEC makes it clear that, while child benefit does not fall within the scope of the Directive, an increase of incapacity benefit in respect of a dependent child does.  Thus CF/3703/00 is distinguishable from the present case in that respect.  The Secretary of State accepts that that is so and that the Directive is of direct effect and so may be relied upon in these proceedings.  It is also accepted that any United Kingdom legislation that is inconsistent with the principle of equal treatment enshrined in Article 4 may be disapplied.  

18.	The Secretary of State also, now, accepts that CJSA/4890/98 is distinguishable from the present case because section 80(1) of the Social Security Contributions and Benefits Act 1992 is not drafted in terms of treating a person as “responsible” for a child as regulation 77 of the Jobseeker’s Allowance Regulations 1996 is and, more specifically, contains no provision equivalent to regulation 77(3)(a) of the Jobseeker’s Allowance Regulations 1996.  Therefore, it is now accepted that the question whether the children spent more time with the claimant or with his ex-wife at the time of his claim is irrelevant in the present case.  If the link to child benefit is incompatible with Council Directive 79/7/EEC, the claimant is entitled to increases of incapacity benefit in respect of both his children merely because he satisfies the condition in section 81(2)(a).  There is no evidence that his ex-wife has claimed an increase of benefit so that there is no question of the Social Security (Overlapping Benefits) Regulations 1979 having to be applied.  If that question did arise, it might be necessary to devise some principles under which it could be decided which of two claimants claiming similar increases of benefit should succeed, which might require some consideration of the amount of practical responsibility for the children undertaken by each parent.  As it is, the question whether the link to child benefit involves discrimination that makes it incompatible with the Directive is the determinative issue in this case.

19.	It seems to me that there can be no question of direct discrimination in this case.  There undoubtedly is direct discrimination in paragraphs 3 and 4(2) of Schedule 10 to the Social Security Contributions and Benefits Act 1992 giving priority of entitlement to child benefit, but regulation 4A of the Social Security Benefit (Dependency) Regulations 1977 effectively removes that discrimination for the purposes of determining entitlement to increases of benefit under section 80.  It may, in any event, be thought that the discrimination is fairly unobjectionable, since it arises only in situations where the people concerned can rearrange their affairs so as to give entitlement to the person otherwise not entitled and, furthermore, in situations where they can be expected to co-operate with each other in order to achieve that end if they so wish.

Indirect discrimination – statistical disadvantage

20.	In Case C-317/93, Nolte v. Landesversicherungsanstalt Hannover [1995] E.C.R. I-4625 at paragraph 28, it was said:

“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 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”.

21.	Although there are apparently no readily available detailed statistics, the Secretary of State concedes that the requirement that a person claiming an increase of incapacity benefit should be entitled to child benefit works to the disadvantage of far more men than women.  For the purposes of determining this appeal, I will assume that that is so, whether the relevant pool is all people claiming incapacity benefit or all separated parents claiming incapacity benefit or, as I consider should be the case, all separated parents claiming incapacity benefit who are unable to agree who should have entitlement to child benefit and in respect of whom the Secretary of State must make a determination under paragraph 5 of Schedule 10 to the Social Security Contributions and Benefits Act 1992.

22.	Therefore, the sole issue arising on this appeal is whether the statistical disadvantage to men flowing from the link to child benefit in section 80(1) can be justified objectively by reference to factors other than gender.  The burden of showing justification rests on the Secretary of State.

Objective justification – the arguments

23.	Ms Demetriou submits that the link to child benefit is justified because it pursues a legitimate social policy aim, is appropriate and necessary to achieve that aim and is unrelated to discrimination on grounds of sex.  In her written submission, she identified the social policy aim as “that of ensuring that the elements of incapacity benefit 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 then submitted that section 80(1) was an appropriate means of achieving that aim because it provided a clear and straightforward rule that did not give rise to any problems in the vast majority of cases and therefore facilitated the efficient administration of the benefits system.  She argued out that relying upon the child benefit decision prevented duplication of adjudication because the question which parent bore the greater responsibility for a child in cases of shared responsibility was determined by the Secretary of State.  Even though paragraph 5 of Schedule 10 is cast in terms of discretion, she produced evidence which, she submitted, showed that the Secretary of State did in fact determine which person bore the greater responsibility for the child.

24.	The claimant’s principal complaint is that the legislation simply does not achieve the social policy aim as expressed in Ms Demetriou’s written submission.  A person in his position has legal responsibilities under the Children Act 1989 and practical responsibilities when the children stay with him.  Section 80(1) does not ensure that increases of incapacity benefit are payable to all those with responsibility for children.  What it does do, if the evidence as to the practical effect of child benefit adjudication is accurate, is ensure that in a case where a child’s parents are separated the parent with the lesser responsibility for the child is not entitled to an increase of incapacity benefit, even in a case where the other parent is also not entitled to such an increase because he or she is not in receipt of incapacity benefit or any other relevant social security benefit.  That is why, as is conceded, separated fathers are far more likely to be refused increases of incapacity benefit than separated mothers. The claimant submits that that result is not justifiable and is certainly not justified by the policy identified by the Secretary of State.

Objective justification – general principles

25.	The claimant’s challenge requires a close examination of the way Ms Demetriou puts the Secretary of State’s case.  She submits that the test in Nolte has two stages.  Firstly it requires identification of the social policy behind the legislation as to which she submits that the legislature has a broad margin of judgement.  Secondly, it must be shown that the legislation is suitable and requisite as a means of carrying out that policy, as to which she again submits that the legislature has a broad margin of judgement.  That is a permissible analysis but it begs a number of questions.

26.	Firstly, what is the role of a court or tribunal ?  Ms Demetriou submits that, in CJSA/4890/98, Mr Commissioner Mesher erred in substituting his own view as to what was appropriate and necessary for that of the legislator, whereas, she submits, the question for the Commissioner was merely whether the legislator had been unreasonable in considering that the legislation was a suitable and necessary means of advancing the social policy.  It is unnecessary for me to analyse Mr Commissioner Mesher’s approach or Ms Demitriou’s submission.  I will explain my own approach in different terms.

27.	It seems plain to me that policy is a matter for a legislator but that the legitimacy of a policy is a matter for a court or tribunal.  It is for the legislator to determine which of a number of possible social policies is the one to be pursued but, if there is a challenge, it is for the court or tribunal to decide whether or not it is a permissible policy.  The words “appropriate” and “necessary”, used in Nolte in respect of the measures taken to carry out a social policy, also imply an element of policy.  There may, for instance, be a number of ways of carrying a social policy into effect and it is for the legislator to choose between them.  However, those words also imply both that the means of carrying the social policy into effect policy must be legitimate, so that, for instance, there must be a logical connection between the social policy and the outcome that will be achieved by the legislation.  Where there is a challenge to legislation, the legitimacy of the means employed to implement a legitimate social policy is, like the legitimacy of the social policy itself, a matter upon which the court or tribunal is to be the arbiter.  

28.	Secondly, it seems to me to follow from those observations that, in practice, it will often be better to take the two stages identified by Ms Demetriou together, rather than looking at them separately.  Where the distinction between the broad social policy and the narrower policy behind the choice of means of carrying it out lies tends to depend on the precise terms in which the social policy is formulated and the distinction itself is unimportant.  The only important distinction is between legitimate policy and illegitimate policy.  Furthermore, while in cases where it is not obvious it will be for the party seeking to justify the legislation to identify a legitimate social policy behind it, in many cases the policy behind legislation may be better discerned by looking at the terms of the legislation and seeing what object it actually achieves and, presumably, was designed to achieve.

29.	The composite question that may be asked in the present case is whether the requirement in section 80(1) that a person claiming an increase of incapacity benefit should be in receipt of child benefit is an appropriate and necessary means of carrying out a legitimate social policy.  Identifying that social policy is likely to be assisted by finding out exactly what the effect of section 80(1) is, although I shall confine my enquiry to the effect in cases where the parents of a child are living apart and the child in question lives for part of the time with one and for part of the time with the other.

Objective justification – the effect of the link with child benefit

30.	Section 80(1) has the effect that only the parent in receipt of child benefit is entitled to an increase of incapacity benefit.  Under paragraph 5 of Schedule 10, it is open to them to agree that entitlement to child benefit should be transferred from one to the other so that the other parent may become entitled to an increase of incapacity benefit and, of course, it is open to the parent who receives child benefit and an increase of incapacity benefit to share that income with the other parent.  Where there is that level of co-operation between parents, any possible discrimination may be avoided.

31.	The problem arises when there is no such agreement.  Paragraph 5 confers a broad discretion on the Secretary of State but there is before me, as there was before Mr Commissioner Mesher in CJSA/4890/98, a copy of an affidavit sworn by Mr Ian Sprawson, the head of the Child Benefit Policy section of the Department for Work and Pensions, for use in Regina (Barber) v. Secretary of State for Work and Pensions [2002] EWHC 1915 (Admin (July 17, 2002, Sir Richard Tucker).  In his affidavit, Mr Sprawson, explains how the discretion conferred by paragraph 5 is exercised in practice.  He says, in paragraph 37, that there are about 3,000 cases a year in which it is exercised and, in paragraph 24, that, “[i]n general, the claimant who appears to bear the greater responsibility will be awarded entitlement”.  He may paint a slightly rosy picture of the potential for paper adjudication of disputes of fact between bitterly opposed former partners but his evidence is not contradicted and I accept his description of the aim of decision-making under paragraph 5, save that I would emphasise that the object is to determine who undertakes the greater practical responsibilities, rather than who has the greater legal responsibility.  More importantly I accept, with one reservation, that that adjudication has no bias towards women so that the fact that it results in most awards being made to women is merely a reflection of the fact that mothers usually provide more care than fathers.

32.	My reservation is on a matter to which Mr Commissioner Mesher drew attention in CJSA/4890/98.  In paragraph 7 of his affidavit, Mr Sprawson dealt with the decision made in Mr Barber’s case and said:

“The basis for the latter decision was that, since the care of Gareth appeared to be shared equally, the Claimant had failed to demonstrate that he had the greater balance of care of Gareth [p.17].  Accordingly, the status quo would not be disturbed.  It was also the case that the Claimant’s allegations regarding Mrs Barber’s lack of expenditure on Gareth were not confirmed by her and, indeed, that she had contended that her expenditure was greater than that of the Claimant.”

Paragraphs 3 and 4(2) of Schedule 10 to the Social Security Contributions and Benefits Act 1992 inevitably have the effect that, before couples separate, more women than men are entitled to child benefit.  In those circumstances, an approach to equally shared responsibilities that results in the status quo being preserved must inevitably result in a bias against men.  Furthermore, the readiness in Mr Barber’s case not to determine the issue about financial contributions, which admittedly might have been well-nigh impossible on paper, may suggest a more general readiness to decide that responsibilities are shared equally rather than to make a real decision on the facts favouring one parent or the other.  That increases the risk of bias and the problem is compounded by the lack of any right of appeal to an appeal tribunal that could hold an oral hearing.  Whether the right to apply for judicial review is sufficient to prevent this decision-making process from being incompatible with Article 6 of the European Convention on Human Rights (if that provision is relevant at all) is a question that may have to be determined in another case and another forum.  The process certainly has unsatisfactory features, although it does keep down the costs of administering child benefit and reduces the scope for parents to argue with each other.

Objective justification – the legitimacy of the legislature’s principal policy

33.	In any event, the intended effect of section 80(1) in a case where children live part of the time with each of their separated parents is now clear.  Only the parent who undertakes the greater practical responsibility for each child is eligible for an increase of incapacity benefit in respect of that child.  That is so even if the other parent is not claiming such an increase and even if the parent who wishes to claim the increase is paying child support maintenance to the other parent.  Ms Demetriou was content to accept at the hearing that the principal policy that is under scrutiny in this case can be reformulated as ensuring that, where parents are separated, financial assistance in respect of a child is provided under the social security benefits scheme to, but only to, the parent undertaking the greater practical responsibility for the child.

34.	Although it is necessary for the Secretary of State to justify the statistical disadvantage against men resulting from the legislation, it is not necessary for him to justify the policy beyond satisfying me that it is a legitimate policy.  It is not relevant whether I would regard it as the best policy.  It is for the legislature to decide, having regard to financial considerations among others, the extent to which, if at all, separated parents should be helped through the social security system to maintain contact with their children.

35.	I am satisfied that the principal policy behind the legislation in this case is legitimate.  It is rational, it does not involve gender stereotyping and it does not contravene any fundamental principle enshrined in European Union legislation or recognised in European Union jurisprudence.  I agree with Ms Demetriou that this case is distinguishable from CJSA/4890/98 because, in that case, the benefit in question was income-based jobseeker’s allowance, which is a benefit of last resort.  In such a case, it is possible to argue that a person refused an element of benefit in respect of his children will be unable to afford to have those children living with him and it is arguable that a policy that has that effect is not legitimate, particularly if it affects fathers more than mothers.  I do not consider that that point can be taken in relation to incapacity benefit, which is not income-related.  There is no reason to suppose that a person in receipt of incapacity benefit does not have other resources that might enable him to care for a child who lives with him for part of the time.  

36.	I am conscious of the fact that income support, which is the benefit of last resort to which a person in receipt of incapacity benefit may be entitled if he has insufficient other resources, has been held by the European Court of Justice to be outwith the scope of Council Directive 79/7/EEC (Cases C-63/91 and C-64/91, Jackson and Caldwell v. Secretary of State for Social Services (reported as R(IS) 10/91)), but I do not consider that that can influence the way that the Directive must be applied to incapacity benefit.

Objective justification – the legitimacy of the secondary policy

37.	I am also satisfied that the means of implementing the primary policy, which involves adopting the results of the child benefit decision-making process, is appropriate and necessary.

38.	It is appropriate simply because it achieves the policy without introducing any additional unequal treatment.  I do not consider it to be relevant that there is evidence that decision-making in relation to child benefit may involve an element of unjustifiable discrimination.  I accept Ms Demetriou’s submission that, if that is the correct interpretation to give to Mr Sprawson’s affidavit, the unequal treatment is the consequence of bad decision-making – i.e., the unlawful placing of a greater burden or standard of proof on a new claimant as opposed the person already in receipt of child benefit – which could be challenged by way of judicial review of the child benefit decision.  Bad decision-making is not a direct or necessary consequence of section 80(1).  Furthermore, in a case where a child benefit decision was in fact determinative of entitlement to an increase of incapacity benefit, it seems to me that reliance could, if necessary, be placed on Council Directive 79/7/EEC when challenging the decision.

39.	The policy could, of course, be implemented through a provision that required the Secretary of State to make a separate, appealable decision in respect of an increase of benefit, rather than adopting the child benefit decision.  However, I accept that the approach adopted is necessary to give effect to a secondary policy behind the legislation, which is the avoidance of the additional costs that would arise through the duplication of decision-making processes.  Whatever misgivings I may have about child benefit decision-making, I have no doubt that that is a legitimate policy.

Objective justification - conclusion

40.	I therefore accept that the link with child benefit is lawful, notwithstanding that it acts to the disadvantage of significantly more men than women.  That is because I am satisfied that the disproportionate impact of the provision on men is explained by the objective, and relevant, fact that, where parents are separated and share responsibility for their children, it is more often the mother, rather than the father, who undertakes the greater proportion of the practical responsibility for the children.

Decision

41.	There being no other arguable point of law in this case, this appeal must be dismissed.

	(Signed)	MARK ROWLAND
		Commissioner
		16 December 2003