The Queen on the Application of Moore & Anor v Secretary of State for Work and Pensions

Different treatment of Maternity Allowance and Statutory Maternity Pay within Universal Credit is not unlawful merely because the benefits serve similar purposes. The question is whether the distinction has sufficient justification in its statutory and administrative context.

In assessing social and economic policy, substantial latitude is due to the executive. Practical considerations may justify treating Statutory Maternity Pay as earned income where it is paid through employers’ payroll systems and reported through PAYE and real-time information, while treating Maternity Allowance as unearned income. The same reasoning defeated the Convention and common-law challenges. A challenge under section 149 of the Equality Act 2010 must ordinarily be brought promptly from the substantive decision, since the duty is discharged or breached when that decision is made.

The claimants were a mother and child. The mother received Maternity Allowance because she did not satisfy the continuity-of-employment condition for Statutory Maternity Pay. When calculating Universal Credit, Maternity Allowance was treated as unearned income and deducted in full, whereas Statutory Maternity Pay was treated as earned income and subject to the more favourable earned-income calculation.

The claimants challenged regulations 22, 55 and 66 of the Universal Credit Regulations 2013 under Articles 8 and 14 of the Convention, Article 1 of Protocol 1, common-law rationality principles and the public sector equality duty in section 149 of the Equality Act 2010. The central issues were whether the distinction was justified or rational, and whether the equality-duty challenge was brought in time.

1. Convention challenge dismissed. Payment of Universal Credit, including support for basic needs and family life, fell within the ambit of Article 8 as well as Article 1 of Protocol 1. The court nevertheless treated the central issue as whether the difference between the two maternity benefits had sufficient justification.
2. The court accepted that the section 35 criteria for Maternity Allowance could provide an Article 14 “other status”, despite doubts about whether the status was independent of the treatment challenged. Following the approach in Clift v United Kingdom and DA and others v Secretary of State for Work and Pensions, the court proceeded directly to justification.
3. The distinction was justified. Statutory Maternity Pay was paid by employers through payroll, treated like earnings under PAYE and reported through the real-time information system used by the Department for Work and Pensions. Treating it as earned income reduced administrative difficulty and the risk of error or fraud. Its close connection with continuous employment and the employee’s return to work also provided a rational basis for the distinction. Maternity Allowance was paid directly by the Secretary of State and lacked those features.
4. The court held that substantial latitude was appropriate in reviewing a social and economic policy choice involving public expenditure. The practical reasons advanced were sufficient under the “manifestly without reasonable foundation” approach and under conventional rationality review. The fact that the benefits were treated alike in other parts of the benefits system did not require identical treatment under Universal Credit.
5. The UNCRC did not alter the result. On the assumed basis that Universal Credit discharged any relevant obligation in domestic law, deducting Maternity Allowance did not contravene the Convention’s provisions concerning children’s interests and social security.
6. The common-law ground failed for the same reasons. The section 149 challenge was out of time. The public sector equality duty was a process obligation discharged or breached when the substantive decision was made; time therefore ran from that decision. Permission was granted on the first two grounds but refused on the equality-duty ground. The claim failed.

This was a first-instance judicial review in the Administrative Court. No earlier appellate decision in the same litigation was stated.