Does the government’s coronavirus Self-Employment Income Support Scheme discriminate against recent mothers by calculating compensation on the basis of their preceeding 3 years’ profits?
No, according the High Court judgment in R (Motherhood Plan) v HM Treasury  EWHC 309 (Admin).
During the first national coronavirus ‘lockdown’ in the UK, on 30 April 2020, the Treasury introduced the Self Employment Income Support Scheme (‘SEISS’).
The Claimants, an NGO (better known as ‘Pregnant then Screwed’) and a self-employed energy analyst, challenged the SEISS on two grounds.
- As SEISS payments were based on average trading profits (‘ATP’) in the last 3 full tax years, the scheme unlawfully discriminated against women who had taken maternity or pregnancy related leave in that time period (contrary to Article 14 read with Article 1, Protocol 1) of the European Convention on Human Rights (‘ECHR’);
- The SEISS was formulated in breach of the public sector equality duty in section 149(1) of the Equality Act 2010 (‘EqA 2010’).
In broad terms, the SEISS provided for the following support for certain self-employed individuals:
The government will pay self-employed people, who have been adversely affected by the Coronavirus, a taxable grant worth 80% of their average monthly profits over the last three years, up to £2,500 a month.(§ 8, quoting the Treasury’s announcement of the SEISS)
The Chancellor, Rishi Sunak, created the SEISS by a direction made under the power in sections 71 and 76 of the Coronavirus Act 2020. The ‘First direction’ , set out details of the Scheme which the Court summarised as follows:
Paragraph 5 imposed a “profits condition”… Described generally, the profits condition required a person to have trading profits of less than £50,000 pa and for those profits to be equal to or more than the sum of the person’s relevant income that year. For those who had carried on a trade for the three preceding tax years (as had the Second Claimant), the average of trading profits over those years had to be £50,000 or less.(§ 12)
The Court noted the evidence from the Treasury and HMRC (the Interested Party) that the SEISS was developed at great speed in response to the unfolding public health emergency of the coronavirus pandemic. It had twice been extended into the winter months allowing for further payments to be made. It had to support as many eligible persons as possible but balance that objective against the risk of fraud and error. The database for the ‘fully automated’ system was built from scratch and the scheme was operational within a record 6 weeks.
Some 2.6 million claims had been made, with payments totaling £7.6 billion – an average of £2,900 per person.
After the scheme was announced and both opposition MPs and civil society groups complained about its disproportionate effects on women and others, the Treasury’s policy advisors considered the impact on women who had been on maternity leave in recent years. It was thought that at least 65,000 mothers had given birth in 2016/17 and 2017/18 alone.
On 1 July 2020, the Chancellor made a Second Direction that provided a process for eligible persons who had become parents in the tax year 2018/19 and who had not filed self-assessment tax returns for 2018/19 or who had not met the ‘profits condition‘ for that year. That process was lengthier than the standard one and subject to manual checks.
The legal arguments
The Claimants argued that the SEISS had a discriminatory impact on women who had taken maternity leave in a relevant tax year and whose profits, as a result, were below what they could have been. The Second Claimant, for example, was awarded £1,119 per month under the scheme’s formula.
The Article 14 argument had two parts.
- They argued that the scheme had a disproportionate impact on women who had not worked for maternity reasons in a relevant year, by making payments to them which were less than they would have been otherwise;
- Alternatively, they argued that the Treasury had failed to treat such women differently to other eligible persons, despite the fact that these women were in a materially different situation to others (applying Thlimmenos v Greece (2000) 31 EHRR 15). Put simply, different cases should be treated differently (per Lord Wilson JSC in R (DA) v Secretary of State for Work and Pensions  UKSC 21). What the Treasury had done wrong was to equate women who had not been working due to pregnancy / maternity with those who were not working for other reasons.
The Treasury and HMRC replied that the scheme treated everyone equally. Recent mothers did not require special assistance. Even if there was discrimination in the system, the test for justifying indirect discrimination contrary to Article 14 of the ECHR was, in the context of welfare benefits, that the measure had to be ‘manifestly without reasonable foundation’ (‘MWRF’). The government put forward five-fold justification for the basis of the calculation of payments under the scheme (namely, the purpose of SEISS, rapid policy delivery, mitigating fraud, avoiding perverse outcomes and minimising cost). Adjusting the policy for recent mothers would have undermined the overall coherence of the scheme. The Chancellor had given due regard to equality impacts as required by section 149(1) of the EqA 2010.
Dismissing the Claimants claim, Whipple J held:
- The scheme was based on hypothetical assumptions about projected lost profits in 2020/21, calculated by reference to the data already held by HMRC, up to a maximum monthly cap;
- The Defendants relied on the case of R (Adiatu) v HM Treasury  EWHC 1554 (Admin), where the Divisional Court held that the payment of Statutory Sick Pay under the Coronavirus Job Retention Scheme applied equally to all and did not subject women or ‘BAME‘ employees to a particular disadvantage ‘because everyone is treated the same’;
- The disadvantage to recent mothers in this case did not flow from the SEISS but from their past reduction in income (§ 62);
- Rejecting the indirect discrimination claim, the Court found:
The measure imposes no hidden barriers to eligibility. So far as quantum of payment is concerned there is no hidden barrier either: quantum is based on past (average) trading profits, which are a matter of past fact. The same rule applies to all and it is no harder for a woman who has been on maternity leave to qualify or calculate their payment, than someone who has not. The fact that some claimants will receive lower payments than others reflects the fact of lower earnings in past years; I agree with the Defendant that the reasons for lower earnings in past years, in the context of this Scheme with its stated purpose, are not relevant.(§ 64)
- On Thlimmenos discrimination, in other words, the failure to treat unique cases uniquely, the Court found that the Claimants’ argument required persons to be treated differently based on a past, protected characteristic. Whipple J observed:
I was shown no authority to support the proposition that uniqueness, or difference, in the past is a basis on which to require different treatment in the present, such that failure to accord that different treatment in the present amounts to unlawful discrimination.(§ 67)
- The disadvantage that the Claimants alleged related to having earned less in the past. The law did not require them to be compensated now for such historical disadvantages (§ 67);
- Turning to justification, and whether the foundation proposed by the Defendants was reasonable, Whipple J concluded that it was, for reasons that include the following:
- Adjusting the scheme to cater for self-employed recent mothers would have exceeded its purpose and strayed into correcting ‘perceived inequalities in the past’ (§ 72);
- While the Treasury’s Second Direction for 2018/19 parents affected around 10,000 eligible persons, adjusting for new mothers in the last 3 financial years would have affected around 65,000 persons, introducing complexity, delay and more ‘hard cases’ (§ 75 to 77). The government had balanced the risk of fraud against the need for quick delivery of the policy (by allowing individuals to self-certify that their income was affected by the pandemic). The scheme was designed around verifiable data held by HMRC, allowing automation, speed, low cost and reducing the risk of fraud. The Court found it was understandable that the government chose not to allow women to self-certify as having been on maternity leave during the relevant periods because of the increased fraud risk (§§ 79 to 80);
- Tweaking the system to adjust for recent mothers would have created problems for others and compromised the simplicity of the policy. ‘This is a political decision, for the architects of the Scheme. It is not a matter for lawyers.’ (§ 82).
- Lastly, the Treasury had given the public sector equality duty due regard prior to issuing the First Direction and the fact that the scheme was announced prior to that did not change this because the details were being worked out following the announcement.
This judgment has been received with disappointment by many and the Claimants may be considering an appeal. I have several observations / concerns about this judgment.
- The Judge expressed doubt about whether ‘recent mothers’ could enjoy protected status under Article 14 of the ECHR (see § 66). However, the general approach to identifying protected status should be broad. It seems unusual to deny a discrimination claim on the basis that it relates to a protected characteristic held in the recent past when the scheme under challenge refers to records from the past. In the context of disability, the domestic legal framework extends protection to persons who have been disabled in the past. There doesn’t seem to be compelling reasons to take a different approach to ‘recent maternity’ in an Article 14 claim which relates to the use of historic data that overlaps with the period of maternity / pregnancy.
- The judgment joins a steadily growing line of High Court cases concerning challenges to the level of state benefits where Judges have found that calculations of the benefits that apply equally to all did not result in indirect discrimination. The problem with that approach is that it appears to be inconsistent with the more flexible, domestic definition of a PCP as confirmed by the Court of Appeal in Ishola v Transport for London  EWCA Civ 112 in the employment context (which I’ve previously covered here). Ishola conceptualised PCPs as ‘a state of affairs’ indicating how cases would generally be dealt with. It does not appear to have been cited in either R (Motherhood Plan) or R (Adiatu), with the latter case drawing heavily on pre-EqA 2010 authorities.
- In my view, these recent cases should not be misunderstood as indicating that a claimant in an indirect discrimination claim must always show a ‘hidden barrier’ or a requirement that is harder for them to satisfy. While that is one (classic) form of indirect discrimination, as discussed by Lady Hale in Essop v Home Office; Naeem v Secretary of State for Justice  UKSC 27 at § 25, it’s unlikely to be the only kind, as the discussion in Ishola makes clear. The formulation of the EqA 2010 test compared to the pre-2010 domestic legislation also suggests that the requirement or condition approach is not the only way a claim can succeed.
- In the absence of clarity on this point, practitioners will want to take particular care to identify and describe an appropriate PCP in each case, particularly where the target of challenge is the calculation of a state benefit.
- Even so, the five-fold justifications put forward by the Treasury to justify any indirect discrimination that there may have been on recent mothers clearly made an impression on the Court. In an Article 14 claim that relates to discrimination in the provision of state benefits, claimants must show that the scheme in question is ‘manifestly without reasonable foundation’. That’s a high threshold to satisfy and was perhaps elevated here because of the urgent policy context of the pandemic response.
- Nevertheless, it’s notable that the judgment does not appear to have weighed any of these policy justifications against the extent of the disparate impacts on recent mothers receiving considerably lower compensation and what that means for them as self-employed mothers.
- While the discussion of the public sector equality duty is relatively brief, there was some evidence that the Chancellor and the Treasury had considered the equality impacts on recent mothers, had made a significant change to allow 2018/19 parents to be eligible, but opted to press ahead without further changes for other recent mothers due to the practical consequences, costs and process implications.