The Motherhood Plan (R on the application of) v HM Treasury

A neutrally framed income-support measure may constitute prima facie indirect discrimination under Article 14 where its use of historic earnings produces disproportionately unrepresentative awards for a group defined by pregnancy or maternity. The disadvantage lies in the measure's effect, not in a supposed barrier to eligibility.

Justification under European Convention on Human Rights requires a nuanced proportionality assessment. In an emergency scheme of social and economic policy, urgent delivery, simplicity, verifiable data, fraud prevention, avoidance of anomalies and cost may justify the absence of a bespoke adjustment. The intensity of review may be lower for indirect than direct discrimination, even where sex is the relevant status.

The appellants challenged the first Self-Employment Income Support Scheme, established during the first Covid-19 lockdown. The scheme calculated grants by reference to average trading profits in specified prior tax years.

They contended that this basis of calculation discriminated against self-employed women whose profits in those years had been reduced by pregnancy, childbirth or caring for a new baby. They relied on both indirect discrimination and a failure to treat materially different situations differently under Article 14 read with Article 1 of the First Protocol.

Whipple J dismissed their judicial-review claim. The appeal concerned whether the historic-profit calculation created prima facie discrimination and, if so, whether its use without a maternity-specific modification was objectively justified.

1. Appeal dismissed. Underhill and Baker LJJ, with whom Nicola Davies LJ agreed, held that the use of average trading profits (“ATP”) created a prima facie case of indirect discrimination against recent mothers. A neutral measure may be indirectly discriminatory where it has a disproportionately prejudicial effect on a group sharing a relevant status. The judge had wrongly treated the absence of a hidden barrier, and the fact that lower historic earnings had another cause, as answers to that issue.

2. The purpose of the scheme was to compensate self-employed traders for profits likely to have been earned in the current year but for the pandemic. Historic profits were therefore material because they were the proxy used for that loss. If the ATP measure disproportionately produced unrepresentative awards for recent mothers, it placed them at a particular disadvantage. Barry and Adiatu did not support the contrary conclusion because the historic earnings in those cases were immaterial to the purpose of the relevant payment.

3. It was unnecessary to determine definitively whether the same facts also established Thlimmenos discrimination. The justification issue was the same once prima facie indirect discrimination had been established.

4. Following R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26, justification required a nuanced proportionality assessment. Social and economic policy normally attracts substantial weight, but the court must also take account of the discriminatory ground and all relevant circumstances. The indirect character of the discrimination was a factor capable of lowering the intensity of review.

5. The First Direction was justified. It was made under the Coronavirus Act 2020 in exceptional urgency. Using tax returns already held by HMRC allowed a rapid, simple and automated scheme using verified data. A special maternity adjustment would have required additional, difficult-to-verify information, delayed implementation, increased fraud risk and generated further anomalies. The limited later mitigation for some 2018-19 parents did not show that a broader modification could practicably have been included from the outset. The discriminatory impact was not disproportionate to the benefits of the unmodified ATP measure.

• Court of Appeal (Civil Division): Dismissed the appeal and upheld the dismissal of the judicial-review claim.
• High Court, Queen’s Bench Division, Administrative Court: Whipple J dismissed the application for judicial review in January 2021. No citation for that judgment is stated.