 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
UK Social Security and Child Support Commissioners' Decisions |
||
|
You are here: BAILII >> Databases >> UK Social Security and Child Support Commissioners' Decisions >> Cresswell v. Chief Adjudication Officer [1992] UKSSCSC CIS_146_1990 (16 July 1992) URL: http://www.bailii.org/uk/cases/UKSSCSC/1992/CIS_146_1990.html Cite as: [1992] UKSSCSC CIS_146_1990 |
||
[New search] [Printable RTF version] [Help]
Cresswell v. Chief Adjudication Officer [1992] UKSSCSC CIS_146_1990 (16 July 1992)
R(IS) 10/91
Mr. R. A. Sanders CIS/146/1990
24.9.90
Income – child-minding expenses not deductible from earnings – whether income support within the scope of Council Directive 79/7/EEC of Council Directive 76/207/EEC
A lone parent with two young children took up part-time employment. She paid £25 per week to have her children looked after while she was at work. On her claim for income support the adjudication officer refused to deduct her child minding expenses from her income when calculating her entitlement. Before the social security Commissioner there was no dispute between the parties that the claimant could not succeed under domestic law. On the question of whether there was indirect discrimination against women in breach of either Council Directive on Equal Treatment (76/207) or Council Directive on Social Security (79/7), the Commissioner (on file CIS/146/1990).
Held that:
- the rate of income support was a social security matter to which Directive 76/207 did not apply;
- income support was part of a statutory scheme which did not provide protection against any of the risks set out to Article 3 of Directive 79/7; it provided against the risk of poverty.
On appeal by the claimant, the Court of Appeal (Mustill, Staughton and McCowan LJJ) on 21 December 1990 referred three questions to the European Court of Justice for a preliminary ruling. The European Court of Justice joined cases C63/91 and C64/91) on 16 July 1992 decided that neither Directive 76/207 nor Directive 79/7 applied to income support.
DECISION OF THE SOCIAL SECURITY COMMISSIONER
"(3) A person in Great Britain is entitled to income support if -
(a) he is of or over the age of 18 or, in prescribed circumstances and for a prescribed period, of or over the age of 16 or he is a person to whom subsection (4A) below applies;
(b) he has no income or his income does not exceed the applicable amount;
(c) he is not engaged in remunerative work and, if he is a member of a married or unmarried couple, the other member is not so engaged; and
(d) except in such circumstances as may be prescribed -
(i) he is available for employment;
(ii) he is not receiving relevant education."
The "applicable amount" referred to in sub-section (3)(b) is dealt with in regulation 17 of the General Regulations. The calculation of the earnings of employed earners is principally dealt with in regulations 29 and 36 of and Schedule 8 to those regulations and the sums to be disregarded in the calculation of earnings appear in the Schedule. There is no provision to disregard child-care expenses. There is no dispute between the parties that the claimant cannot succeed under the rules of English domestic law. What is in issue is whether, as Ms. C. contends, the provisions to which I have referred produce an indirect discrimination against women in breach of both the Council Directives on Equal Treatment (76/207) and the Council Directive on Social Security (79/7) or either of them. For the reasons given below it is my view that neither Directive is applicable in relation to the legislation which is in issue in this case. Accordingly, there being no breach of either Directive, the tribunal's decision was not erroneous in law and this appeal does not succeed.
"1. The purpose of this Directive is to put into effect in the Member States the principle of equal treatment for men and women as regards access to employment, including promotion, and to vocational training and as regards working conditions and, on the conditions referred to in paragraph 2, social security. This principle is hereinafter referred to as 'the principle of equal treatment'.
- With a view to ensuring the progressive implementation of the principle equal treatment in matters of social security, the Council, acting on proposal from the Commission, will adopt provisions defining its substance its scope and the arrangements for its application."
In my view it is plain that social security matters are not subject to this Directive they are expressly excluded. That was the view expressed by the European Court of Justice in Newstead v. Department of Transport [1988] 1 WLR 612 and in Marshall v. Southampton and South West Hampshire Area Health Authority [1986] 2 All ER 584, at page 599. It was also the view expressed by the Commissioner who decided CSB/1121/1986 and CSB/372/1987, those cases concerning the application of the two Directives now in question to the supplementary benefit scheme. Counsel for Ms. C, Mr. Drabble, relied on R v. Secretary of State for Education ex parte Schaffter [1987] IRLR 53 in which Schiemann J, held that Council Directive 76/207 applied in relation to the discriminatory effect of the conditions under which certain educational grants were paid by education authorities. Mr. Drabble contended that that case (which made plain that the Directive was not limited to matters between employers and workers) assisted his argument that the discrimination alleged in the present case, although having a social security context, was, because of its likely effect on access to employment, in reality a discrimination in relation to that matter and was therefore within the Directive. It seems to me however that while the discrimination alleged in Ms. C's case might well have a bearing on opportunities for employment, the only matter that is before me is the rate at which Ms. C is entitled to her income support. That, in my view, is a social security matter to which Directive 76/207 does not apply.
"1. This Directive shall apply to:
(a) statutory schemes which provide protection against the following risks:
- sickness,
- invalidity,
- old age,
- accidents at work and occupational diseases,
- unemployment:
(b) social assistance, in so far as it is intended to supplement or replace the schemes referred to in (a)."
It was Mr. Drabble's case that the income support scheme was a statutory scheme both because it was in a statute and also because entitlement was a matter of right and not of discretion once relevant conditions were satisfied; furthermore, the income support scheme did in fact provide protection against the risks referred to in Article 3.1 at least in the sense that persons in those risk categories were likely candidates for and the recipients of income support. Accordingly, said Mr. Drabble, the Directive applied to the income support scheme. Counsel for the adjudication officer and for the Secretary of State, Mr. Pannick, submitted that even if the income support scheme could be said to be a statutory scheme, which he did not accept, it was not a scheme which provided protection against the defined risks because payment of income support did not depend on the occurrence of those risks. While income support is or might be available to those who are subject to those risks the income support scheme is directed only to those whose income falls below a defined level: section 20(3) of the 1986 Act.
"21 . . . In order to fall within the scope of the directive, therefore, a benefit must constitute the whole or part of a statutory scheme providing protection against one of the specified risks or a form of social assistance having the same objective.
23 . . . In order, therefore, to ensure that the progressive implementation of the principle of equal treatment referred to in Article 1 of Directive 79/7 and defined in Article 4 is carried out in a harmonious manner throughout the Community, Article 3(1) must be interpreted as including any benefit which in a broad sense forms part of one of the statutory schemes referred to or a social assistance provision intended to supplement or replace such a scheme."
So the Court's approach was to look at the benefit in question and decide whether in a broad sense it was part of a statutory scheme providing protection against one of the specified risks. Ms. C's claim is, as it had to be, for income support; she does not claim to be nor is she entitled to any of the premiums. In my view the benefit in question in this case is part of a statutory scheme which does not provide protection against any of the Article 3 risks; it provides protection against the risk of poverty and it is beside the point that some or all of the specified risks might provide the background to the risks at which the Directive is expressly directed. The provisions for the payment of premiums do not in my view alter the nature of the scheme though it is possible that, as Mr. Pannick suggested, Ms. C. might have had a stronger case if she had actually been seeking payment of one of the premiums. I have mentioned that Mr. Pannick did not agree that the income support scheme was a statutory scheme for the purposes of Article 3.1(a). He took the view that the scheme might qualify as social assistance under paragraph 1(b). That however would not assist the claimant because, as the European Court of Justice made clear in Drake, to come within the Directive the form of social assistance must have as its objective protection against the same risks specified in relation to statutory schemes.
Date: 24 September 1990 (signed) Mr. R. A. Sanders
Commissioner
APPENDIX 1
21 DECEMBER 1990
IN THE COURT OF APPEAL
ON APPEAL FROM THE
SOCIAL SECURITY COMMISSIONERS
RE
PATRICIA CRESSWELL
V
THE CHIEF ADJUDICATION OFFICER
ORDER
LORD JUSTICE MUSTILL: This is the judgment of the court.
Jackson's case
There is before the court an appeal by Miss Sonia Jackson from a ruling of the social security Commissioner. The question now for decision is whether the court should refer to the European Court of Justice for a preliminary ruling pursuant to Article 177 of the EEC Treaty certain issues relating to the interpretation of Council Directive 76/207/EEC of 9 February 1976 (hereinafter, "the Equal Treatment Directive") and Council Directive 79/7/EEC of 19 December 1978 (the Social Security Directive).
The facts
In October 1986 the appellant was a single parent with one dependent child aged four years. Since 1982 she had received supplementary benefit, in the shape of a supplementary allowance, under section 1A(b) of the Supplementary Benefits Act 1976 ("the Act"), on the ground that her resources were insufficient to meet her requirements.
By virtue of paragraph 1(1) of Schedule 1 of the Act, the amount of the appellant's supplementary allowance was the amount by which her resources fell short of her requirements. The calculation of her resources was performed in the manner prescribed in the Supplementary Benefit (Resources) Regulations 1981. These distinguish between "earnings", and "other income". The calculation of "earnings" is governed by regulation 10, which provides by paragraph (3) that in performing the calculation certain specified sums or items of income shall be disregarded, and by paragraph (4) that other sums or items shall be deducted.
"Other income" is dealt with by regulation 11, which stipulates in paragraph (2) that the specified types of resources "shall be treated as income and taken into account in full."
Between 1982 and September 1986 the appellant's resources (leaving out of account the assistance which she received with the cost of housing, which does not form an element in the calculations) consisted only of payments for child benefit and one-parent benefit. These fell substantially short of her requirements, computed in accordance with the Act, and she was therefore entitled to, and received, payments by way of supplementary allowance.
On 15 September 1986 the appellant started a training course arranged by the Manpower Services Commission ("MSC") under the Employment and Training Act 1973. Whilst attending this course she received allowances totaling £41.55 per week. These allowances were treated as "other income", by virtue of regulation 11(2)(h)(i), and were hence brought into account in full when calculating the appellant's resources. The result was that after 15 September 1986 her resources, for the purpose of the Act, increased to £53.25, whereas the amount of her requirements remained at £51.72. Accordingly, since her resources now exceeded her requirements, supplementary allowance ceased to be due.
Although there is no doubt that this was the outcome of the Act and the regulations, it did not reflect the true state of affairs, since the appellant's actual expenditures now included the cost of having the child cared for whilst she was attending the training course. If the appellant had gone out to work, and had been paid a remuneration which ranked as "earnings" for the purpose of regulation 10, the cost of child care would have been deducted under paragraph (4)(c)(ii) as "expenses reasonably incurred . . . in respect of . . . the making of reasonable provision for the care of another member of the assessment unit because of [her] own necessary absence from home to carry out [her] duties in connection with that employment". The hardship to the appellant is due to the fact that her training allowance is categorised not as "earnings" (regulation 10) but as "other income" (regulation 11). Accordingly, it is brought into account "in full", without any deduction for child care expenses.
This result may appear anomalous and unfair to some, although not on any ground directly connected with sex. But there is no doubt that, viewed solely in terms of English legislation, the adjudication officer was right to refuse the appellant's claim for supplementary allowance, and that the social security appeal tribunal was right to reject her appeal.
Another dimension was however added by the contention, first advanced before the appeal tribunal that regulation 11 indirectly discriminated against female single parents, and hence infringed the Equal Treatment Directive. The tribunal rejected this contention, on the ground that the absence of any deduction for child care expenses applied to male and female single parents alike. When the matter came before the Commissioner, the scope of the inquiry was enlarged to include all five Council Directives in the field of equal treatment, including in particular the Social Security Directive.
The decision of the Commissioner
The Commissioner upheld the decision of the appeal tribunal. In the reasons for his decision he adopted a formulation of the issues proposed by counsel for the adjudication officer:
(a) Does the Equal Treatment Directive apply in the present context?
(b) Does the Social Security Directive apply in the present context?
(c) If either of those directives does apply, do the regulations have a disparate impact on women?
(d) If so, is that disparate impact justifiable?
The Commissioner answered the question (a) in the negative, saying that it seemed to him plain, for the reasons which he went on to give, that the Equal Treatment Directive did not apply to social security matters, and that this was a social security matter.
The Commissioner also answered the second question in the negative, for reasons summarised as follows:
"In my judgment, this Social Security Directive is the first stage in the implementation of the principle of equal treatment in matters of social security - see the second preamble which I have quoted above - and Article 3 of this Directive has not brought within its compass claims for supplementary benefit."
His conclusion on these two issues made it unnecessary for the Commissioner to decide the two remaining questions, but he did make some reference to them. As to question (c), the Commissioner stated that there were no findings of the appeal tribunal as to whether the regulations in question affected more women than men, so that the question could not be answered. Nevertheless the Commissioner went on to consider what the answer to question (d) would have been if a disproportionate effect has been established.
Miss Jackson now appeals.
R. v. Secretary of State for Social Security, ex parte Smithson
Before considering the issues which arise on the present appeal, we must refer to ex parte Smithson (unreported), which came before the Divisional Court some five months ago, whilst this appeal was pending. The subject matter was housing benefit claimed by the female applicant. For the purpose of deciding whether, and if so how much, benefit is payable the legislation calls for a comparison between resources and requirements somewhat similar to those with which we are here concerned. Included in the list of items which go to make up the total requirement is the higher pensioner premium. This is allowable only if certain conditions are fulfilled. One condition is that the claimant is in receipt of one or more benefits, namely: attendance allowance, mobility allowance, mobility supplement, invalidity pension, severe disablement allowance. Mrs. Smithson was not in receipt of any such benefit, and hence was not entitled to count the higher pension premium in the computation of her requirements. But if she had been a man she would (for reasons which are immaterial here) have been so entitled. There was accordingly a direct discrimination against her, as a woman. The question was whether this discrimination was within the scope of the Social Security Directive.
Two reasons for an affirmative answer were advanced in argument. The first, which we may call the broad argument, was to the effect that housing benefit is either part of a statutory scheme (Article 3(1)(a)) or a form of social assistance (Article 3(1)(b)), and that in either event it provides, amongst other things, protection against some or all of the five risks enumerated in Article 3(1)(a), as is recognised by the establishment of premiums for those in special need. The second argument was more narrow, and was directed to the higher pensioner premium rather than to housing benefit as a whole. Essentially it was to the effect that since the entitlement to the premium was conditional on entitlement to one or more of a list of benefits all of which were directed to the risks of Article 3(1)(a), the premium (and the scheme in which it was embodied) did "provide protection" against these risks, and hence fell within the Directive.
We are not here concerned with the grounds on which the Secretary of State sought to rebut these two arguments. What matters for present purposes is that the rival contentions were regarded by the Divisional Court as sufficiently well balanced to require the reference to the European Court of two questions on the applicability of the Social Security Directive, and such a reference has now been made.
The appeal
In the context of an application for a reference, the parties have renewed before this court the arguments addressed to the Commissioner. The position is a little unusual. Ordinarily, counsel for an appellant will urge the court to decide that his arguments are plainly right. Mr. Drabble did not invite us to go so far as this, because the consequence would be that the court should not refer the questions argued on the present appeal, a situation which Mr. Drabble did not wish to create. Apparently this was envisaged as a possible risk to the orderly administration of the claims of people such as the appellant, if the European Court were to answer the questions posed in Smithson in a manner inconsistent with the decision of this court.
Whilst we understand why Mr. Drabble took this line in the strategical interests not so much of his client Miss Jackson as of the wider group of claimants whom she exemplifies, we cannot regard it as an appropriate basis for an appeal. The Commissioner has held that the appellant is out of benefit because the Directives do not apply. Miss Jackson's notice of appeal invites the court to hold that the decision of the Commissioner was wrong. If we consider that it was wrong, it is in her interest that we should say so; and if we consider that it was plainly wrong, we ought to make that clear as well, rather than burden the Court of Justice with an issue which we feel confident to decide for ourselves.
Question (a): The Equal Treatment Directive.
The dispute revolves around Article 1, which reads as follows:
"The purpose of this Directive is to put into effect in the Member States the principle of equal treatment for men and women as regards access to employment, including promotion, and to vocational training and as regards working conditions and, on the condition referred to in paragraph 2, social security. This principle is hereinafter referred to as the principle of equal treatment."
We should also mention the following passage from the preamble of the Directive:
". . .
Whereas the Council, in its resolution of 21 January 1974 concerning a social action programme, included among the priorities action for the purpose of achieving equality between men and women as regards access to employment and vocational training and promotion and as regards working conditions. including pay;
. . .
Whereas Community action to achieve the principle of equal treatment for men and women in respect of access to employment and vocational training and promotion and in respect of other working conditions also appears to be necessary; whereas, equal treatment for male and female workers constitutes one of the objectives of the Community, in so far as the harmonisation of living and working conditions while maintaining their improvements are inter alia to be furthered; whereas the Treaty does not confer the necessary specific powers for this purpose;
Whereas the definition and progressive implementation of the principle of equal treatment in matters of social security should be ensured by means of subsequent instruments."
On behalf of the appellant Mr. Drabble contends that the financial hardship suffered by the appellant when she attended her training course without the child care expenses being taken into account had the effect of impeding her "access . . . to vocational training" within the meaning of Article 1(1), and that deployment of what is often called the "demographic" argument, expounded by Mr. Justice Schiemann in R v. Secretary of State for Education, ex parte Schaffter [1987] IRCL 53, yields the result that there exists a discrimination on grounds of sex which contravenes Article 2 of the Directive. The essence of such an argument is to show that even if the measure under attack is not discriminatory in language or intent, nevertheless it may constitute an indirect discrimination if it bears unequally on men and women.
This argument would have had some force if Article 1(1) had stopped at the words ". . . and to vocational training". In fact however the Article goes on to stipulate that the purpose is to put the principle into effect as regards social security "on the conditions referred to in paragraph 2". Reference to that paragraph makes it clear that, notwithstanding the opening words of paragraph 1, the Directive is not to apply to matters of social security, and that paragraph 1 is merely a signal that the Council will address these matters, in the context of equal treatment, on some further occasion. Since it seems to us clear that the Act and Regulations are concerned with social security, albeit having an indirect impact on vocational training, the Directive does not apply to them. We therefore have no hesitation in holding that the decision of the Commissioner was right, for the reasons which he gave.
Question (b): the Social Security Directive
The position under this Directive is less straightforward. The material Articles are as follows:
"Article 1
The purpose of this Directive is the progressive implementation, in the field of social security and other elements of social protection provided for in Article 3, of the principle of equal treatment for men and women in matters of social security, hereinafter referred to as 'the principle of equal treatment'.
Article 3
- This Directive shall apply to:
(a) statutory schemes which provide protection against the following risks:
- sickness,
- invalidity,
- old age,
- accidents at work and occupational diseases,
- unemployment;
(b) social assistance, in so far as it is intended to supplement or replace the schemes referred to in (a)."
The parties disagree about whether the relevant parts of the supplementary benefit legislation are, or are part of, "a statutory scheme" or "social assistance" supplementing such a scheme. This question is not in our opinion of any great importance. The real question is whether the scheme, or the "social assistance" which supplements it, "provide[s] protection against" the five risks set out in Article 3. To a large degree this question depends on what is meant by the expression "provide protection against". One possibility is that supplementary benefits should be regarded as within Article 3 if in practice they have the effect of playing a significant role in protecting against the listed risks. On this reading, substantial arguments may be addressed for the application of the Directive. Thus it may be said that:
- We find in section 5 of the Act the requirement that (subject to certain exceptions) the claimant shall register for employment, a recognition that the scheme has a recognisable role in providing protection against the risk of unemployment.
- The long-term unemployed exhaust their unemployment benefit after a certain time and have to fall back on supplementary benefit. It is impossible to describe the scheme which protects against unemployment without taking supplementary benefit into account.
- Drake v. Chief Adjudication Officer [1987] 1 QB 166 demonstrates that the way in which a national scheme is organised should not determine its treatment under the Directive. It would be contrary to principle to hold that where there are provisions which do provide protection against the listed risks the application of the Directive should be excluded merely because those provisions are embodied in a social security scheme of wider import.
The respondent contends that the Social Security Directive represented one more step in the progressive application of the principle of equal treatment in the field of social security: but the process was still far from complete. The Council might have taken the bolder step of making the directive apply to all income related benefits, but it did not do so. Rather it restricted the field of application to a list of specific risks. It cannot have been intended that a general social security scheme should be brought within the Directive simply because it happened to have a beneficial effect on the position of those who suffer from these risks. In the present instance the purpose and effect was to provide protection against poverty. The qualification for benefit was that the applicant's resources were insufficient to meet his requirements. The occurrence of one of the specified risks was not a qualification. True, many of those who qualified did so because their incomes were reduced through the impact of a listed risk, but there were also many who were so subject and yet did not qualify for supplementary benefit.
Nor was supplementary benefit inextricably linked to employment in general, or the retention of employment in particular, since there was a wide range of people who could qualify without satisfying the conditions of registration and availability for employment (see the Supplementary Benefits (Conditions of Employment) Regulations, 1981, regulation 108) and regulation 9 made part-time workers eligible.
The respondent contends that Drake v. Chief Adjudication Officer, supra, provides no assistance here. In that case, the court and the Advocate General were concerned with a scheme which involved a close and logical link between the benefit under consideration and a benefit which undeniably fell within Article 3. Here, by contrast, there was a fundamental dissociation between the enumerated risks and the type of income support scheme represented by supplementary benefits.
We have summarised these arguments not to introduce a decision upon them, but to demonstrate that they are substantial and that neither party is obviously entitled to prevail. We do not consider that either the general question on the meaning of Article 3, or the particular question of the Directive's applicability to the supplementary benefit regime admit of answers which are so clear that the possibility of a reference to the European Court of Justice should be ruled out.
Questions (c) and (d)
No arguments were addressed to us in relation to these questions and it would be inappropriate and indeed impossible to express opinions on the answers to them. Nevertheless it may be useful if we draw attention to the following consideration.
In the first place it is essential to bear in mind the distinction between the appellant's grievance and that of, for example, Mrs. Smithson. The latter alleges what is said to be an illegitimate direct discrimination against her, as a woman. She fails to qualify for a benefit to which she would otherwise be entitled simply because she is female rather than male. The complaint of the present appellant is quite different. Her grievance (and it is real) is that the legislation encourages people in her position to live on incomes which the legislation treats as inadequate. The reason is that section 10 of the Supplementary Benefits Act requires those who carry out the arithmetic to ignore the fact that in order to earn a training allowance a single parent has to spend money on the care of his or her child. This grievance has nothing directly to do with gender, for it applies to all single parents who engage in MSC training, whether male or female. The question of sexual bias arises because, as a consequence of regulation 6(a)(i) of the Supplementary Benefits (Conditions of Entitlement) Regulations 1981, it is said to operate more on women than on men. We naturally accept, because it is part of established Community law, the potential application of the "demographic argument" in a case where the facts of biology or contemporary social organisation entail that a particular legislative measure causes hardship to more women then men.
Nevertheless, we believe that when this doctrine is applied in practice, and when the tribunal having first found that this type of discrimination exists proceeds to consider the question of justification, it is easy to confuse two types of complaint. The first is that the legislation is unfair to everyone in the situation of the complainant, of whatever sex. The second is that it is unfair to more women than men. This distinction is of crucial importance when it comes to the issue of justification, for the tribunal is required to consider, not whether the suggested unfairness to all of those caught by the legislation is justifiable, but whether the fact that more women than men suffer unfairness through the legislation is justifiable.
If we are right in this opinion, it must follow that the consideration of whether a sexual discrimination is justified cannot begin until the tribunal has ascertained what precisely it is that calls for justification; and thus that the Commissioner was in error in attempting to give an answer to question (d) without first ascertaining the answer to question (c). We should add that in our opinion the Commissioner in his discussion of question (d) may (and we put it no higher) have fallen into error by not distinguishing between the two questions which we have just identified.
For these reasons we consider that although the adjudication officer and the Secretary of State have by their respondent's notice sought to contend that the Commissioner was wrong to answer question (d) in the negative, we have no goals upon which we could base a decision. Further, we consider that if the questions which we shall invite the Court of Justice to consider are answered in a sense favourable to the application of one or both the Directives, the fact finding body should not regard itself as bound by the Commissioner's provisional answer to question (d) but should consider the matter entirely afresh.
Remedies
In what we have just said it has been possible to deal quite briefly with the issues which we have been invited to refer, because they emerge very clearly from the reasons given by the Commissioner for his decision. In addition, however, there are certain problems relating to remedies with which the Commissioner did not deal, because on the view which he took of the Directives the question of remedies did not arise. These call for some explanation. Two problems in particular may be identified, each having its origin in the mechanism by which a domestic court or tribunal directly enforces in favour of an individual a Directive of a Community institution. As we understand it, this is in the nature of what in English law would be called an estoppel. The government of the member state is precluded from enforcing as against the individual a provision of domestic law which, if the government had performed its duty under Article 189(3) to alter its national legislation so as to conform with the Directive, would either not have been present in the national legislation or would have been there in some different form: see Becker v. Munster-Innerstadt [1982] FCR 53, Marshall v. Southampton Health Authority [1986] 1 QB 401, and numerous other cases in the same line of authority.
The first problem is that the estoppel usually operates to preclude the national government from relying on a feature of the legislation which is present, but should not be. It is less readily deployed where the individual's complaint relates not to the presence but to the absence of a provision. It is true that in the present case the words "taken into account in full" at the outset of regulation 11(2) are conclusive against any attempt to deduct child care cost from the income resources falling with that regulation, but the position would we believe have been the same without the last two words, since there is nothing in the regulation to authorise a deduction from the sums which the statute and the subordinate legislation require to be included in the computation of supplementary assistance. A court or tribunal applying the Directive would therefore have notionally to add something to the legislation. We are not be feasible, there remains the problem of deciding what and where the addition is to be made. No doubt if the court or tribunal were concerned to remedy the apparent unfairness, it would do so by treating regulation 11(2)(h)(i) as subject to a provision on the lines of regulation 10(4)(c)(ii): and no doubt, whilst so engaged, the court would have to take care not, by eliminating one anomaly, to create another, in the shape of an unfair contrast between the revised regulation 11(2)(h)(i) and an unrevised regulation 11(2)(h)(ii). In truth, however, this is not an exercise on which the court could ever be engaged, since under English constitutional law the court has no power to adjust or withhold enforcement of legislation on the grounds that it is unfair: nor is there anything in the Directives which authorises or requires the court to take such a step. Rather, the court is called upon to remedy, at the behest of the individual, the consequences of a sexual discrimination which infringes a Directive. Notionally adjusting the act or regulation so as to achieve this more limited aim will not, we believe, be an easy task.
The second and more fundamental problem also arises from the fact that the Directives of Community institutions of the kind with which we are here concerned take effect directly, not by striking down inconsistent national legislation, but by precluding the government from relying on it to the detriment of the individual whose rights under the Directives have been infringed. In the present instance the appellant seeks to establish indirect sexual discrimination through the medium of the demographic argument, which pre-supposes that more women than men are adversely affected by the regulations. This entails that the category of wronged individuals who are entitled to rely on the estoppel consists entirely of women, even though (unlike the case of direct sexual discrimination) the unfairness in fact applies to men and women alike. It follows that if the appellant succeeds in establishing unjustifiable discrimination she and all other women in the same position will have the hardship eliminated; whereas male single parents, who ex hypothesis cannot rely on the demographic argument, and hence cannot rely on the Directive, will not. It seems therefore that the effect of putting right the sexual discrimination against women will be to create a sexual discrimination against men. This can scarcely have been a result which the framers of the Directives intended to achieve. No doubt there is a way of escaping this apparent paradox but it is by no means obvious what it might be.
All this being said, it may well be that the remedy to be awarded by the tribunal, as distinct from the steps to be taken by the United Kingdom government, will simply be to award the appropriate supplementary benefit to Miss Jackson, if her argument on European law prevails.
Discretion
In relation to the Social Security Directive the appeal raises an issue of general importance, a decision on which is necessary in order to enable the court to give judgment, in circumstances where it is not possible to say that the solution is clear. This being so, the conditions for making a request for a ruling under Article 177 are satisfied.
It does not necessarily follow that this is the appropriate stage for such a ruling. If this had been an isolated case arising from a recent claim, it might well have been better to refer the proceedings back to the tribunal so that the facts material to issues (c) and (d) could be established, with a view to considering all the questions of law together. It might then have been discovered that even if one or both Directives did apply the appellant's claim foundered on other issues, in which case a reference would be unnecessary. Or it might have transpired that there were more issues of law to be decided than had so far emerged, in which case consideration could be given to referring all of them, thus avoiding the risk of a second reference.
Another possibility would be to wait until the Court of Justice has announced a decision in Smithson, for this might provide an answer to the issues in dispute here, without the need for any further reference.
We have rejected both alternatives. This claim is already four years old, and the appellant's personal interests require that its progress should not be further delayed by a reference-back, quite apart from the general importance of having the relationship between the Social Security Directive and the supplementary benefit legislation clarified as soon as possible. To delay until after the decision in Smithson would not be a safe course, given that the Court of Justice might decide in Mrs. Smithson's favour on the "narrow" ground, leaving the broader issues untouched, and thus providing no solution to the questions now before us.
Accordingly we favour a ruling at the present stage on the Social Security Directive. As regards the Equal Treatment Directive, if this had been the only Directive in issue, we would not have requested a ruling, since we regard the matter as acte clair. Since, however, we have already decided to place one Directive before the court, and since it will add nothing in terms of delay and expense to refer the other as well, we think it best for the court to have the opportunity of reviewing and pronouncing upon both Directives together.
Finally, there is the question of remedies. We appreciate that this question does not immediately arise, and that it will never do so if the appellant fails on the applicability of the Directives or (at a later stage) on issues "(c)" or "(d)". We also appreciate that the application of the rulings of the Court of Justice to the facts of the individual case is a matter for the national court. Nevertheless we are faced here with questions of principle, of general importance, as to the manner in which the national court should approach the task of giving effect to the Directives, if it is held in principle they apply. We respectfully invite the Court of Justice, if it finds in the appellant's favour on either of the Directives, to furnish guidance at the present stage on the way in which any infringement of the appellant's rights should be corrected, so as to avoid the possibility of another reference in the future.
Cresswell's case
The scheme of income support created by sections 20-22 of the Social Security Act 1986, and worked out in the Income Support (General) Regulations 1987, SI 1987 No. 1967, is the successor of the scheme of supplementary benefit. Like its predecessor, it aims to provide those with low incomes a sufficient subvention from the state to make their total resources adequate for their requirements.
Miss Patricia Cresswell, a "lone parent" within the meaning of the 1986 Act, was at the material times in part-time employment. Since she worked fewer than 24 hours per week she was not disentitled to income support by reason of being engaged on "remunerative work", section 20(3)(c) of the 1986 Act, read with regulation 5 of the Income Support (General) Regulations 1987. When computing Miss Cresswell's resources and requirements for the purpose of arriving at the amount of income support to which she was entitled, the adjudication officer did not take into account the payment of £25 per week which she made to have her children looked after whilst she was at work. There is no dispute that the adjudication officer's decision was right, in accordance with the relevant legislation. The dispute now before the court on an appeal by Miss Cresswell from a decision of the Social Security Commissioner, in its turn rejecting successive appeals from the Social Security Appeals Tribunal and the adjudication officer, is whether Miss Cresswell is entitled to rely upon the European Council Directives on Equal Treatment (76/207) and Social Security (79/7), or either of them, as overriding the United Kingdom legislation, so far as it bore unequally upon women (including Miss Cresswell) and men. The Commissioner held that neither Directive applies.
It will be seen at once that this appeal closely resembles that of Miss Sonia Jackson, in which we have just given judgment. There are two principal points of difference:
- The more recent legislation make provision for a number of premiums, which according to the argument for the appellant are designed to "provide protection" against the risks enumerated in Article 3(1)(a) of the Social Security Directive. Accordingly the issues are close to those raised by ex parte Smithson (unreported), than those which we have discussed in relation to Jackson.
- The argument is that the Equal Treatment Directive bears on the present case, because of the differential effect on access to employment, rather than (as in the case of Jackson) on access to vocational training.
It remains to be seen whether these distinctions make any difference. It does however seem to us plain that the general shape of the issues arising in the present case is the same as in Jackson. We believe that nothing will be gained by setting the whole matter out afresh, and since we have decided to refer questions of law to the European Court of Justice in Jackson it will be appropriate also to do so here: thus providing, together with Smithson, a full perspective of the problems raised by the interaction between the Directives and the social security legislation of the United Kingdom.
Order: Appeals allowed; costs reserved; legal aid taxation of appellants' costs
FRIDAY 21 DECEMBER 1990
IN THE COURT OF APPEAL 2695/90
ON APPEAL FROM THE Ref: CSB/372/1987
SOCIAL SECURITY COMMISSIONERS
BEFORE LORD JUSTICE MUSTILL
LORD JUSTICE STAUGHTON
and LORD JUSTICE McCOWAN
BETWEEN
SONIA JACKSON
Appellant
and
THE CHIEF ADJUDICATION OFFICER
Respondent
UPON READING the notice dated 24 May 1989 filed on behalf of the appellant by way of appeal from the decision of Mr. Commissioner A. T. Hoolahan dated 14 September 1988
WHEREBY he disallowed the appellants appeal from the decision of the Sutton social security tribunal dated the 10 December 1986 which decided that the appellant was not entitled to supplementary allowance from 22 September 1986
AND UPON READING the updated respondents notice filed on behalf of the respondent by way of seeking to affirm the said order on additional grounds
AND UPON HEARING Mr. R. Drabble of Counsel on behalf of the appellant and Mr. D. Pannick of Counsel on behalf of the respondent
Re Jackson
FRIDAY 21 DECEMBER 1990
IN THE COURT OF APPEAL 2694/90
ON APPEAL FROM THE Ref: CIS/146/1990
SOCIAL SECURITY COMMISSIONERS
BEFORE
LORD JUSTICE MUSTILL
LORD JUSTICE STAUGHTON
and LORD JUSTICE McCOWAN
BETWEEN
PATRICIA CRESSWELL
Appellant
and
THE CHIEF ADJUDICATION OFFICER
Respondent
UPON READING the notice dated the 18 October 1990 filed on behalf of the appellant by way of appeal from the decision of Mr. Commissioner R. A. Sanders dated the 24 September 1990
WHEREBY he disallowed the appellants appeal from the decision of the Exeter social security appeal tribunal
AND UPON HEARING Mr. R. Drabble of Counsel on behalf of the appellant and Mr. D. Pannick of Counsel on behalf of the respondent
AND UPON JUDGMENT Dr. R. Plender QC attending on behalf of the respondent
IT IS ORDERED
(1) that the questions set out in the Schedule annexed hereto concerning the interpretation of Council Directive 76/207/EEC of 9 February 1976 and Council Directive 79/7/EEC of 19 December 1978 be referred
Re Cresswell
APPENDIX 2
JUDGMENT OF THE COURT
16 July 1992
(Equal treatment of men and women - Social security -
Employment and vocational training - Low-income benefit)
In Joined Cases C-63/91 and C-64/91,
REFERENCE to the Court under Article 177 of the EEC Treaty by the Court of Appeal of England and Wales for a preliminary ruling in the proceedings pending before that court between
Sonia Jackson (Case C-63/91),
Patricia Cresswell (Case C-64/1991),
and
Chief Adjudication Officer
on the interpretation of Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security (Official Journal 1979 No. L6, p. 24) and Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (Official Journal 1976 No. L 39, p. 40).
THE COURT
composed of: O. Due, President, R. Joliet and F. A. Schockweiler (Presidents of Chambers), G. F. Mancini, C. N. Kakouris, G. C. Rodriguez Iglesias, M. Diez de Valasco, J. L. Murray and D. A. O. Edward, Judges.
Advocate General: W. Van Gerven,
Registrar: D. Triantafyllou, Administrator,
after considering the written observations submitted on behalf of:
Sonia Jackson and Patricia Cresswell, by Penny Wood, Solicitor,
the United Kingdom of Great Britain and Northern Ireland by J. E. Collins, of the Treasury Solicitor's Department, acting as Agent,
the Commission of the European Communities, by Karen Banks, a member of its Legal Department, acting as Agent,
having regard to the Report for the Hearing,
after hearing oral argument at the hearing on 13 March 1992 on behalf of Ms. Jackson and Ms. Cresswell, represented by Richard Drabble, Barrister-at-law; the United Kingdom, represented by Richard Plender, QC, and David Pannick, Barrister-at-law, acting as Agents; and the Commission,
after hearing the Opinion of the Advocate General delivered at the sitting on 15 May 1992,
gives the following:
Judgment
"1. Is supplementary allowance (Case C-63/1991) or income support (Case C-64/1991) - which is (or, in the case of supplementary allowance, was) a benefit available in a variety of personal circumstances to persons whose means are insufficient to meet their needs as defined by statute and who may or may not have suffered from one of the risks listed in Article 3 of Directive 79/7 - within the scope of Article 3 of Directive 79/7?
- Is the answer to question 1 the same in all cases or does it depend on whether a person is suffering from one of the risks listed in Article 3 of Directive 79/7?
- Are the conditions of entitlement for receipt of supplementary allowance (Case C-63/91) or income support (Case C-64/91) capable of falling within Directive 76/207 where those conditions relate solely to access to supplementary allowance or income support but the effect of application of those conditions may be such as to affect the ability of a single parent to take up access to part-time employment or vocational training?"
Directive 79/7
Directive 76/207
Costs
On those grounds,
THE COURT
in reply to the questions referred to it for a preliminary ruling by the Court of Appeal of England and Wales by orders of 21 December 1990, hereby rules:
- Article 3(1) of Directive 79/7/EEC is to be interpreted as not applying to a benefit, such as supplementary allowance or income support, which may be granted in a variety of personal situations to persons whose means are insufficient to meet their needs as defined by statute; that answer does not depend on whether the claimant is suffering from one of the risks listed in Article 3 of the directive.
- Directive 76/207 is to be interpreted as not applying to a social security scheme, such as supplementary allowance or income support, simply because the conditions of entitlement for receipt of the benefits may be such as to affect the ability of a single parent to take up access to vocational training or part-time employment.
Due Joliet Schockweiler
Mancini Kakouris Rodriguez Iglesias
Diez de Velasco Murray Edward
Delivered in open court in Luxembourg on 16 July 1992.
O. Due
President
J.-G. Giraud
Registrar