Pregnancy and the pandemic: should recent mothers have been allowed to exclude their parental leave when calculating their income support level? Motherhood Plan v HM Treasury  EWHC 309 (Admin)
In the case of Motherhood Plan v HM Treasury  EWHC 309 (Admin) the High Court held that the Government’s Self-Employment Income Support Scheme was not discriminatory.
High Court Judgment Template
Last year, HMRC took on a project of a bigger scale than anything they had previously attempted in such a short timescale. That project was the Self-Employment Income Support Scheme (the Scheme), and its aim was to help those whose income had been reduced by the pandemic. The payments were calculated by looking at the annual trading profits (ATP) from the previous three tax years, and working out the average for a three-month period, up to a limit of £7,500.
The judicial review claim
The Scheme was challenged by an application for judicial review brought by Motherhood Plan, a charity which aims to end discrimination faced by pregnant women and mothers. They contended that the Scheme was discriminatory against mothers, and brought two grounds:
- That the Scheme discriminated against self-employed women who had taken time off for pregnancy, contrary to Article 14 read with Article 1 Protocol 1 of the ECHR; and
- That HM Treasury had breached the Public Sector Equality Duty contained within the Equality Act 2010.
Article 14 and Article 1 Protocol 1
The first ground related to the broad protection which the Convention gives against discrimination on the basis of protected status. Pregnancy counts as a protected status for the purposes of the Convention. Article 1 Protocol 1 guarantees the right to not be deprived of ones possessions except when in the public interest.
The Claimants made two claims within the Article 14 ground, a) that the Scheme was indirectly discriminatory against pregnant women, or in the alternative b) that the Scheme should have a unique solution for pregnant women, who are in a unique situation.
Mrs Justice Whipple considered that the Scheme did not represent indirect discrimination. This was, principally, because the disadvantage caused was not as a result of the Scheme itself, but of previous lower incomes as a result of pregnancy. As such, it could not be said that the Scheme was discriminatory. For the alternative claim of a unique solution being necessary, Whipple J took the same position: that the women should not be compensated by the scheme for a disadvantage which was not the result or fault of the scheme.
Justification was also considered in the judgment, in case Whipple J was wrong on the fact that there was no Article 14 discrimination. She ruled that HM Treasury’s decisions were justifiable ones, in relation to five reasons: purpose of the scheme (to provide support to self-employed people), policy decisions (balancing the needs of many people against a relatively small group), the risk of fraud, perverse effects (keeping the Scheme simple), and value for money.
Public Sector Equality Duty
Under Section 149(1) of the Equality Act 2010, a public authority must have “due regard to” the need to eliminate discrimination and promote equality of opportunity. This, crucially, is a question of procedure, not of outcome. That is to say that a public authority need only consider and come to conclusions on the issue, not change any particular way in which they achieve the final result.
In this case, there was evidence that the questions had been considered by HM Treasury and the Chancellor when the Scheme was being set up.
Accordingly, both grounds failed and the application for judicial review was dismissed by the High Court.
Chris Hadrill, Partner in the employment team at Redmans, commented on the case: “This case shows that it can be difficult to succeed with broad-based claims that Government policies are discriminatory – such claims can be difficult to evidence and, further, may not succeed if the Government can show that it has, or had, a legitimate aim in implementing the scheme (and, further, that they have implemented that scheme proportionately).”
The High Court judgment in Motherhood Plan v HM Treasury  EWHC 309 (Admin) can be found here.