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Sex discrimination: Discriminatory benefit rule not justified

This report relates to 1 case(s)

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    Hockenjos v Secretary of State for Social Security [2005] IRLR 471 CA (0 other reports)

Key points

In Hockenjos v Secretary of State for Social Security [2005] IRLR 471, the Court of Appeal holds:

  • The secretary of state had failed objectively to justify a rule for entitlement to a supplement to income-based jobseeker's allowance (JSA) where the recipient is the parent responsible for a child, which was linked to receipt of child benefit. Since child benefit is usually paid to the mother, this was found to be indirectly discriminatory on grounds of sex against men who are separated but share responsibility for the care of a child.
  • In accordance with the ECJ decision in R v Secretary of State for Employment ex parte Seymour-Smith [1999] IRLR 253, the secretary of state had to show that the discriminatory rule reflected a legitimate aim of the UK's social policy, which was unrelated to any discrimination based on sex, and that it was a suitable, proportionate means for achieving that aim.
  • A balance had to be struck between the EU's fundamental principles of equal treatment between men and women and a member state's freedom to achieve its own social policy. Although a member state has a discretion in the implementation of EU social policy, it cannot exercise it in such a way as to frustrate the aim of the EU law.
  • There was no evidence that the secretary of state had ever examined whether there was a better or different way of achieving the policy aim that would avoid or diminish the discrimination. As alternative options had not been explored, the secretary of state had not discharged the burden of establishing justification.