RK's Application and in the matter of decisions of The Department of Communities
| Jurisdiction | Northern Ireland |
| Judge | Scoffield J |
| Judgment Date | 25 April 2022 |
| Neutral Citation | [2022] NIQB 29 |
| Court | Queen's Bench Division (Northern Ireland) |
| Date | 25 April 2022 |
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Neutral Citation No: [2022] NIQB 29
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Ref: SCO11821
ICOS No: 19/073141/01
Delivered: 25/04/2022
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
___________
QUEEN’S BENCH DIVISION
(JUDICIAL REVIEW)
___________
IN THE MATTER OF AN APPLICATION BY ‘RK’
FOR JUDICIAL REVIEW
AND IN THE MATTER OF DECISIONS OF
THE DEPARTMENT OF COMMUNITIES
___________
Fiona Doherty QC and Aidan McGowan (instructed by the Law Centre for
Northern Ireland) for the applicant
Tony McGleenan QC and Philip McAteer (instructed by the Departmental Solicitor’s
Office) for the respondents
___________
SCOFFIELD J
Introduction
[1] By this application, the applicant challenges the method of calculating
Universal Credit (UC) for people in receipt of Maternity Allowance (MA). The first
respondent is the Department for Communities in Northern Ireland (“the
Department”). The second respondent is the Secretary of State for Work and
Pensions although, for all intents and purposes, the application was defended by the
Department on behalf of both respondents. By virtue of the statutory scheme for
which it is responsible, the Department treats MA as unearned income and deducts
it in full when calculating an individual’s entitlement to UC. In contrast, the
Department treats Statutory Maternity Pay (SMP) as earnings and deducts it only
partially when calculating entitlement to UC.
[2] The applicant challenges a number of decisions on the part of the Department
refusing her application for UC for various months in 2019 (April, May, June and
July) and, thereafter, a decision to award her UC at a reduced level (from August
2019 on). These decisions were affected by the Department deducting MA which
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was paid to her. Relatedly, the applicant also challenges the refusal of her
application for a Sure Start Maternity Grant, which refusal was based on the fact that
she was not eligible for UC which is a qualifying benefit for the grant. The core of
the applicant’s challenge is concerned with a claim of unlawful discrimination
contrary to Article 14 ECHR, on the basis that she should not be treated differently
from those claiming UC who have been in receipt of SMP rather than, as she has
been, in receipt of MA.
[3] The applicant was represented by Ms Doherty QC with Mr McGowan, of
counsel; and the respondents were represented by Mr McGleenan QC with
Mr McAteer, of counsel. I am grateful to all counsel for their extremely helpful
written and oral submissions.
Factual Background
[4] The applicant has an extensive employment history and was continuously
engaged in employment from June 2013 until December 2018. In May 2018, the
applicant commenced a new job with a recruitment agency and, around that time,
left two other jobs (one at a call centre, which she left in April 2018, and one at a bar,
which she left in June 2018). She worked in healthcare, through the recruitment
agency, from May 2018 until December 2018. At that point she went on maternity
leave, having become pregnant shortly after commencing that particular
employment. She was not entitled to SMP since, although she had been
continuously engaged in employment since June 2013, she had not been employed
with the same employer for a continuous period of 26 weeks immediately preceding
the fourteenth week before the expected week of confinement. Accordingly, she did
not qualify for SMP pursuant to section 160 of the Social Security Contributions and
Benefits (Northern Ireland) Act 1992.
[5] As a result, the applicant was required to claim MA, instead of SMP. She
applied for MA on 17 November 2018 and received her first payment of MA in early
February 2019. Her first payment included back-pay. Thereafter, she received MA
every two weeks.
[6] The applicant gave birth to her daughter, her first child, on 26 December 2018.
She is a single parent; and her personal circumstances have been outlined in the
evidence she has placed before the court. At the end of her maternity leave, in
December 2019, the applicant took temporary work in retail; then had a short break
before obtaining a job in hospitality; and was then on furlough once lockdown was
introduced as a result of the Covid-19 pandemic.
[7] Meanwhile, the applicant made a claim for UC on 2 April 2019 for support
with responsibility for a child. The applicant’s evidence and submissions set out in
some detail the amounts assessed by the Department as payable to her by way of UC
in respect of various assessment periods. In respect of the first assessment period
(2 April to 1 May 2019), the applicant had a figure deducted which related to
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