The rule giving priority for Child Benefit entitlement to a wife within a married couple is lawful. The tribunal did not discriminate against a husband by applying the law in the context of Home Responsibilities Protection.
WB v. Her Majesty’s Revenue and Customs (HRMC)  NI Com 47
The claimant applied for Home Responsibilities Protection (HRP) in July 2017. In doing so, he applied for national insurance credits on the basis of HRP for the period April 1982 to April 1984 and April 2001 until April 2002. HMRC decided that the claimant was not entitled to HRP because he had not been in receipt of child benefit for a child under 16 during those periods.
The claimant appealed and the tribunal disallowed his appeal. The tribunal found, on the basis of a series of computer system screen prints, that the claimant’s wife, rather than the claimant, was the child benefit claimant in the family.
The claimant appealed to the Social Security Commissioner. His grounds of appeal were:
(i) the tribunal fettered its discretion to award National Insurance contributions to the claimant on the basis that he was the primary carer of a child, whereas his wife was working;
(ii) the tribunal made an irrational decision by holding on the evidence before it that the claimant’s wife was the Child Benefit claimant;
(iii) the tribunal breached the claimant’s rights under the Human Rights Act 1998, relying on Article 14 and Article 1, Protocol 1 of the European Convention on Human Rights and Fundamental Freedoms (ECHR), in that he was discriminated against on the ground of gender.
The relevant legislation is paragraph 5(7)(b) Schedule 3 of the Social Security Contributions and Benefits Act (NI) 1992 (‘1992 Act’) and regulation 2 of the Social Security Pensions (Home Responsibilities) Regulations (NI) 1994 (‘the 1994 Regulations’), as amended by the Social Security Pensions (Home Responsibilities) (Amendment) Regulations (NI) 2008 (‘2008 Regulations’) from 6 April 2008.
Paragraph 5(7)(b) 1992 Act states:
‘(7) The second condition shall be taken to be satisfied notwithstanding that paragraphs (a) and (b) of sub-paragraph (3) above are not complied with as respects each of the requisite number of years if—
(a) those paragraphs are complied with as respects at least half that number of years (or at least 20 of them, if that is less than half); and
(b) in each of the other years the contributor concerned was, within the meaning of regulations, precluded from regular employment by responsibilities at home.
But nothing in this sub-paragraph applies in relation to any benefit to which section 23A above applies.’
Regulation 2 1994 Regulations states:
‘2. (1)For the purpose of paragraph 5(7)(b) of Schedule 3 to the Act a person shall, subject to paragraph (5) of this regulation, be taken to be precluded from regular employment by responsibilities at home in any year—
(a) throughout which he satisfies any of the conditions specified in paragraph (2) of this regulation
(2) The conditions specified in this paragraph are—
(a) that child benefit awarded to him was payable in respect of a child under the age of 16;
(aa) that child benefit awarded to his partner was payable in respect of a child under the age of 16;
(4C) In paragraph (2)(aa), “partner” means the person with whom he was both residing and sharing responsibility for the child throughout that year.
(5) Except where paragraph (6) of this regulation applies, paragraph (1) of this regulation shall not apply in relation to any year—
(aza) if in the case of a person who satisfies the condition in paragraph (2)(aa)—
(i) such information is not furnished as the Department may from time to time require which is relevant to the question of whether in that year he was precluded from regular employment by responsibilities at home within the meaning of these Regulations,
(ii) he attained pensionable age on or before 5th April 2008 or, in relation to a claim for a bereavement benefit in respect of his death, he died on or before that date, or
(iii) the aggregate of his partner’s earnings factors—
(aa) in respect of any year preceding 2002-03;
(bb) in respect of the year 2002-03 or any subsequent year, where those earnings factors are derived from so much of his earnings as do not exceed the upper earnings limit and upon which primary Class 1 contributions have been paid or treated as paid, is less than the qualifying earnings factor for the year in question.’
[Bold text added by 2008 Regulations and in force from 6 April 2008]
The Commissioner addressed each of the claimant’s grounds of appeal in turn.
(i) The tribunal fettered its discretion to award National Insurance contributions to the claimant on the basis that he was the primary carer of a child, whereas his wife was working.
The Commissioner decided that this ground of appeal was misconceived. The tribunal was required to apply the legislation in each case. The legislation in the claimant’s case gave two potential routes to entitlement – regulation 2(2)(a) and (aa) – and the tribunal explored both. There was no discretion under the legislation which could be fettered.
(ii) The tribunal made an irrational decision by holding on the evidence before it that the claimant’s wife was the Child Benefit claimant.
The claimant argued that the tribunal made an irrational decision – meaning that in making its decision, it took into account irrelevant factors, or failed to take into account relevant factors, or that it was so unreasonable that no reasonable tribunal could have made it.
The Commissioner noted that the tribunal was satisfied on the evidence, a series of screen shots from the HMRC computer system, that the claimant’s wife, rather than the claimant, was the child benefit claimant. In the Commissioner’s opinion, the tribunal did not take into account irrelevant factors or fail to take into account relevant factors.
In terms of unreasonableness, the only question was whether the tribunal had based its decision on no, or insufficient, evidence, or whether the weight of evidence compelled a different conclusion. The Commissioner decided that the evidence the tribunal saw was enough to establish a prima facie case that the claimant’s wife was the Child Benefit claimant. It was, therefore, not unreasonable for the tribunal to reach that conclusion.
(iii) The tribunal breached the claimant’s rights under the Human Rights Act 1998, relying on Article 14 and Article 1, Protocol 1 of the European Convention on Human Rights and Fundamental Freedoms (ECHR), in that he was discriminated against on the ground of gender.
The Commissioner noted that the Child Benefit Act (NI) 1975 and the Social Security Contributions and Benefits Act (NI) 1992 prioritise the wife where two or more spouses or civil partners are entitled to claim Child Benefit.
This rule had been challenged previously in the Administrative Court of England and Wales in Barber v. Secretary of State for Work and Pensions  EWHC 1915 and in the Supreme Court in Humphreys v. HMRC  UKSC 18. On both occasions, the Court decided that any discrimination on the basis of gender is justified on policy grounds.
At paragraph 34, the Commissioner states:
‘I consider [the claimant] raises a case of discrimination in a slightly different context to the above cases, which are unfavourable to his argument. Therefore I will grant leave to appeal. However, I consider that it is clear that the rule giving priority for [Child Benefit] entitlement to the wife within a married couple has been found to be lawful. I consider that any submission to the effect that the tribunal has discriminated by applying relevant law in context of HRP cannot succeed by the same principle.’
The Commissioner dismissed the appeal.
For a copy of the judgment, click here.