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Summary

The Supreme Court handed down its judgment in the appeal of Humphreys v Commissioners for Her Majesty’s Revenue and Customs [2012] UKSC 18 on 16 May 2012, unanimously dismissing this appeal.

The court had been asked to decide whether indirect sex discrimination (arising from the “no-splitting” rule in respect of child tax credits (“CTC“)), which was in contravention of article 14 of the European Convention on Human Rights, could be justified in the context of these state benefits.

The court applied the test from the Grand Chamber case Stec v United Kingdom (2006) 43 EHRR 1017 (i.e. discrimination will be justified unless it is “manifestly without reasonable foundation”) and held that discrimination arising from the “no splitting” rule was justified.

The application of the Stec test may have a significant bearing on the outcome of future cases involving state benefits.

Decision

The appellant, a father of two children, applied for CTC on the basis that he cared for the children at least three days a week.  His application was denied on the ground that where care of children is shared, CTC were payable only to the person who had “main responsibility” for the children (i.e. the “no splitting” rule) which was, in this case, their mother.  He challenged that rule as being discriminatory against men, since men rarely have the main responsibility for a child.  The discriminatory nature of the rule was accepted – the question then being whether such indirect discrimination was justified.

The Supreme Court held that such discrimination was justifiable for the following reasons;

  • the main aim of the policy was to reduce child poverty and providing for one recipient of CTC was more likely to achieve that aim than dividing it between two households of modest means;
  • CTC was provided to the main carer with the expectation that that person bears most of the cost incurred in looking after the relevant child;
  • providing for CTC to be ‘split’ would impose administrative complexities and unnecessarily increase costs;
  • the CTC regime was generally justifiable and the appellant was effectively asking for an exception to be made for him. ‘Bright line’ rules of entitlement to benefits can be justified, even if they involve hardship in particular cases;
  • the policy had been designed with the overriding aim of combining tax allowances and social security benefits into a seamless tax credit system in mind. ‘Splitting’ the CTC in that regime would be unworkable; and
  • it is reasonable for the state to regard the way it delivers support for children and families as a separate issue to the way children spend their time as between their parents/carers.

Comment

The court held that the Stec test was the “. . . the proper approach to justification in cases involving [ECHR] discrimination in state benefits…”. It is likely to signal that the Stec test should be applied in all state benefit ECHR discrimination cases.  The focus in such cases will be on the policy intent behind the benefits legislation which give rise to discrimination and whether those policy grounds provide a “reasonable foundation”.

The immediate case may be referred to the European Courts due to the ECHR rights involved. However, the Grand Chamber in Stec noted that member states must be given a “wide margin” in matters of social and economic policy and so the European Courts may be wary of intervening.

Discriminatory legislation may contravene both the ECHR and EU anti-discrimination law. The EU law applies a different, and potentially more lenient, test in relation to whether discrimination is justified, so that claimants may chose to take proceedings under the EU law in future cases on similar facts.