Tthe Motherhood Plan & Anor, R (On the Application Of) v & Anor

A scheme which calculates support by reference to historic trading profits does not, without more, indirectly discriminate against women whose past profits were reduced during maternity leave. The disadvantage must be caused by the impugned measure, rather than merely reflected in it. Nor does the fact that maternity and pregnancy are unique circumstances require a present benefits scheme to correct historic income loss under the Thlimmenos principle.

Even if discrimination were established, a broad margin of appreciation applied to this macro-economic scheme. Its use of historic HMRC data was not manifestly without reasonable foundation, having regard to speed, simplicity, fraud prevention, cost and avoidance of anomalies. The Public Sector Equality Duty was also satisfied because the equality implications had been considered conscientiously.

The claimants challenged the Self-Employment Income Support Scheme, established by directions under the Coronavirus Act 2020. The scheme calculated grants using average trading profits from the preceding three tax years.

The second claimant’s profits had been reduced during periods of maternity leave. The claimants alleged indirect and Thlimmenos-type discrimination contrary to Article 14 read with Article 1 of Protocol 1, and breach of section 149 of the Equality Act 2010. The central issues were whether the scheme discriminated against women whose historic profits reflected maternity leave, whether any discrimination was justified, and whether the Public Sector Equality Duty had been fulfilled.

1. Article 14 discrimination. The court applied the four-stage approach identified in R (Stott) v Justice Secretary [2020] AC 51: Convention ambit, protected status, analogous situations and absence of objective justification. The first two elements were satisfied.
2. There was no conventional indirect discrimination. The scheme imposed no hidden barrier to eligibility or quantum. The same calculation applied to everyone, and lower payments resulted from lower historic profits, not from the scheme itself. The reasons for the historic reduction, including maternity leave, were not relevant to a scheme designed to project lost pandemic-related profits.
3. There was no Thlimmenos-type discrimination. Even assuming maternity and pregnancy were unique circumstances warranting special protection, the relevant maternity leave was historic. The court had been shown no authority requiring a present benefits scheme to provide redress for a past unique situation. The disadvantage existed independently of the scheme.
4. Justification. The agreed test was whether the measure was manifestly without reasonable foundation. A broad margin of appreciation applied because the scheme was a general measure addressing economic and social needs. Its stated purpose was reasonable, and using average historic trading profits was a reasonable means of advancing it.
5. The government reasonably prioritised rapid implementation, simplicity, use of verified HMRC data, fraud reduction, cost control and avoidance of new anomalies or hard cases. The fact that adjustments had been made for particular groups did not require wider adjustments for women who had taken maternity leave.
6. Public Sector Equality Duty. The duty under section 149 of the Equality Act 2010 was procedural. The Chancellor had to consider the statutory equality implications conscientiously, but was not required to achieve a particular result. The relevant general and maternity-related impacts had been considered before implementation was completed.
7. The judicial review claim was dismissed.