High Court: Covid self-employed support scheme does not unlawfully discriminate against women
26 February 2021
R (The Motherhood Plan and Anor) v HM Treasury  EWHC 309 (Admin) — read judgment
In a judgment handed down on 17 February 2021, the High Court has ruled that the Self Employment Income Support Scheme (“the Scheme”) introduced during the coronavirus pandemic does not indirectly discriminate against self-employed women who have taken a period of leave relating to maternity or pregnancy in the last three tax years.
On 30 April 2020, HM Treasury (the Defendant) introduced the Scheme in order to provide payments to those who carried on a business which had been adversely affected by the coronavirus emergency. The Scheme was to be based on average trading profits (“ATP”) of the individual business over the preceding three full tax years (i.e. 2016/17, 2017/18, 2018/2019).
The Claimants’ case was that the Scheme had a discriminatory impact on women who had taken maternity leave during a relevant tax year. The rationale was that trading profits for the year when maternity leave was taken would have been lower, the result being that the payments under the Scheme were less than they otherwise might have been.
The Claimants therefore challenged the Scheme on two main grounds:
- The Scheme unlawfully discriminated against self-employed women who have taken a period of leave relating to maternity or pregnancy in the three preceding tax years, contrary to Article 14 read with Article 1 of Protocol 1 of the Human Rights Convention. This discrimination was advanced as taking the form of: (i) “Conventional” indirect discrimination; and/or (ii) discrimination of the Thlimmenos type: the principle that different cases should properly be treated differently.
- The Defendant breached the Public Sector Equality Duty in section 149 of the Equality Act 2010.
Ground 1: Article 14
It was common ground that the approach to indirect discrimination claims in the context of Article 14 was to be guided by R (Stoot) v Justice Secretary  AC 51 (at ), which set out the four elements that are needed to establish a violation of Article 14:
- The circumstances must fall within the ambit of a Convention right.
- The difference in treatment must have been on the ground of one of the characteristics listed in article 14 or “other status”.
- The claimant and the person who has been treated differently must be in analogous situations.
- Objective justification for the different treatment will be lacking. It is not always easy to keep the third and the fourth elements entirely separate, and it is not uncommon to see judgments concentrate upon the question of justification, rather than upon whether the people in question are in analogous situations.
As to “conventional” indirect discrimination, Whipple J held (by reference to R (Adiatu) v HM Treasury  EWHC 1554 (Admin) at  and Barry v Midland Bank  1 WLR 1465) that the disadvantage was not caused by the Scheme itself but rather it was a disadvantage which flowed from an absence of or reduction in a person’s income in the past. Further, the Scheme imposed no hidden barriers to eligibility, and it was no harder for a woman who had been on maternity leave to qualify or calculate their payment than someone who had not. The reasons for lower earnings in past years, in the context of the Scheme, were held not to be relevant.
In respect of Thlimmenos discrimination (that different cases need different treatment), Whipple J held that the unique circumstances for the Claimant and the group she represented existed in the past. Therefore, the Claimants were demanding redress by means of the Scheme in relation to a unique situation in the past and it was not accepted that failure to accord different treatment in the present amounted to unlawful discrimination. Adiatu was again raised to justify the point that the disadvantage was considered not to have been caused by the measure but to exist independently of it.
While Whipple J was not persuaded that Article 14 had been breached, she nonetheless went on to consider the issue of justification. As to whether the Scheme was manifestly without reasonable foundation (“MWRF”), it was agreed between the parties that the appropriate test was whether the foundation advanced by the HM Treasury was reasonable (R (DA & others) v Secretary of State for Work and Pensions  1 WLR 3289 at ). The Defendant relied on five separate justifications: (i) purpose, (ii) policy delivery, (iii) risk of fraud, (iv) perverse effects, and (v) value for money.
First, the stated purpose of the Scheme was considered reasonable in that it provided support for self-employed people whose businesses were adversely affected by the pandemic.
Secondly, as to policy delivery, it was accepted that a move away from a method of calculation on profits would have involved expense and led to delay, which was at odds with the requirement for a quick delivery; it was not unreasonable for HM Treasury to have adopted a simple and quick approach.
Thirdly, the desire for claims to be verifiable by reference to data already held by HMRC, thus mitigating the risk of fraud, was a powerful justification for the design of the Scheme and an understandable position to take.
Fourthly, it was not possible to find an alternative solution without creating a range of hard cases and anomalies and this was a political decision for the architects of the Scheme – not for lawyers.
Finally, maintaining the Scheme’s simplicity kept costs down and enabled swift payments to be made.
It was therefore held that, whether taken separately or in combination, HM Treasury’s decisions were reasonable ones. The Scheme was a macro-economic policy involving substantial public expenditure and the Government had a wide margin of appreciation.
Ground 2: Public Sector Equality Duty
Section 149(1) of the Equality Act 2010 sets out that a public authority must have “due regard to” the need to eliminate discrimination and promote equality of opportunity. The position was summarised in R (British Medical Association) v Secretary of State for Health and Social Care  Pens LR 10, per Andrews LJ:
142. Elias LJ in R. (Hurley) v Secretary of State for Business Innovation and Skills  EWHC 201 (Admin) at  elegantly summarised the approach that the Court should take in these terms:
“the concept of ‘due regard’ requires the court to ensure that there has been a proper and conscientious focus on the statutory criteria … the decision maker must be clear precisely what the equality implications are when he puts them in the balance, and he must recognize the desirability of achieving them, but ultimately it is for him to decide what weight they should be given in the light of all relevant factors.”
That passage was expressly approved in Bracking  EWCA Civ 1345.
The Claimants argued that the Chancellor of the Exchequer committed himself to the ATP approach at an early stage, before there had been any consideration of the equality impact. However, Whipple J held that the general equality implications were considered by HM Treasury prior to the Chancellor exercising his powers under the Coronavirus Act 2020 to establish the Scheme. She was further satisfied that the Chancellor had had the specific issue well in focus and that the regard he had to it was proper and conscientious.
The line of reasoning adopted from Adiatu that it is not the Scheme itself that is discriminatory, but rather an external factor, appears overly technical. The simple fact remains that the Scheme was designed in such a way that perpetuates inequality. By analogy, it would be a strange state of affairs if an employer were able to run a scheme of financial bonuses that was dependent on uninterrupted years of service.
That said, even if the court had held that Article 14 had been violated, it seems likely that it would have been justified. For example, the Scheme was devised under enormous time pressure, with the aim of getting payments out to the self-employed as soon as possible, and there was a real risk of fraud. It is difficult to see the justifications put forward on behalf of HM Treasury not being held to be reasonable.
As to the public sector duty, this was essentially an evidential question, and it seems Whipple J was justified in reaching the conclusion she did on the evidence before her.
Henry Tufnell is a barrister at 1 Crown Office Row