Taylor Moore & (2) SG (by her mother and litigation friend, Taylor Moore) v Secretary of State for Work and Pensions
| Jurisdiction | England & Wales |
| Judge | Mr Justice Swift |
| Judgment Date | 26 October 2020 |
| Neutral Citation | [2020] EWHC 2827 (Admin) |
| Docket Number | Case No: CO/4081/2019 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 26 October 2020 |
[2020] EWHC 2827 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Swift
Case No: CO/4081/2019
The Queen on the application of
Shu Shin Luh (instructed by Child Poverty Action Group) for the Claimant
Edward Brown and Jack Anderson (instructed by DWP Legal Advisers, GLD) for the Defendant
Hearing dates: 24 th & 25 th June 2020
A. Introduction
The Universal Credit Regulations 2013 classify Statutory Maternity Pay as earned income (regulation 55), but classify Maternity Allowance as unearned income (regulation 66). This difference of treatment has significant practical consequences. When calculating the amount of Universal Credit payable to a benefits claimant, unearned income is deducted pound for pound from the amount that would otherwise be payable. Earned income is treated more favourably: part of the earned income is disregarded when calculating the amount of Universal Credit payable, the remainder is deducted but only to the extent of 63%. Is this difference of treatment unlawful? The Claimants' submission in these proceedings is that the difference in treatment is unlawful discrimination contrary to their Convention rights (Article 8 and or Article 1 of Protocol 1, read with Article 14), and to common law Wednesbury principles. The Claimants further contend that the decision contained in the provisions of the Universal Credit Regulations 2013, to treat the two benefits differently was made in breach of the requirements of the public sector equality duty (section 149 of the Equality Act 2010).
(1) The Facts
In June 2018, the First Claimant (Ms Moore) left one job for another. Her new job was better paid and, she considered, offered more in terms of job security and prospects. Around the time she changed her job, Ms Moore discovered she was pregnant. She continued to work until October 2018 when she was signed off work sick because of complications with her pregnancy. She started her maternity leave earlier than planned. Ms Moore gave birth to her daughter (the Second Claimant) on the 22 November 2018.
When she commenced maternity leave, Ms Moore made a claim for Maternity Allowance; she did not qualify for payment of Statutory Maternity Pay because she lacked sufficient continuity of service with her new employer.
The conditions for entitlement to Maternity Allowance are at section 35 of the Social Security Contributions and Benefits Act 1992 (“the 1992 Act”).
“ 35. State maternity allowance
(1) A woman shall be entitled to a maternity allowance under this section, at the appropriate weekly rate determined under section 35A below, if—
(a) she has become pregnant and has reached, or been confined before reaching, the commencement of the 11th week before the expected week of confinement; and
(b) she has been engaged in employment as an employed or self-employed earner for any part of the week in the case of at least 26 of the 66 weeks immediately preceding the expected week of confinement; and
(c) her average weekly earnings (within the meaning of section 35A below) are not less than the maternity allowance threshold for the tax year in which the beginning of the period of 66 weeks mentioned in paragraph (b) above falls;
(d) she is not entitled to statutory maternity pay for the same week in respect of the same pregnancy.
(2) Subject to the following provisions of this section, a maternity allowance under this section shall be payable for the period (“the maternity allowance period”) which, if she were entitled to statutory maternity pay, would be the maternity pay period under section 165 below.
(3) Regulations may provide—
(a) for disqualifying a woman for receiving a maternity allowance under this section if—
(i) during the maternity allowance period, except in prescribed cases, she does any work in employment as an employed or self-employed earner;
( ia) during the maternity allowance period she fails without good cause to observe any prescribed rules of behaviour; or
(ii) at any time before she is confined she fails without good cause to attend for, or submit herself to, any medical examination required in accordance with the regulations;
(b) that this section and section 35A below shall have effect subject to prescribed modifications in relation to cases in which a woman has been confined and—
(i) has not made a claim for a maternity allowance under this section in expectation of that confinement (other than a claim which has been disallowed); or
(ii) has made a claim for a maternity allowance under this section in expectation of that confinement (other than a claim which has been disallowed), but she was confined more than 11 weeks before the expected week of confinement.
(c) that subsection (2) above shall have effect subject to prescribed modifications in relation to cases in which a woman fails to satisfy the conditions referred to in subsection (1)(b) or (c) above at the commencement of the 11th week before the expected week of confinement, but subsequently satisfies those conditions at any time before she is confined.
(3A) Regulations may provide for the duration of the maternity allowance period as it applies to a woman to be reduced, subject to prescribed restrictions and conditions.
(3B) Regulations under subsection (3A) are to secure that the reduced period ends at a time—
(a) after a prescribed period beginning with the day on which the woman is confined, and
(b) when at least a prescribed part of the maternity allowance period remains unexpired.
(3C) Regulations under subsection (3A) may, in particular, prescribe restrictions and conditions relating to—
(a) the end of the woman's entitlement to maternity leave;
(b) the doing of work by the woman;
(c) the taking of prescribed steps by the woman or another person as regards leave under section 75E of the Employment Rights Act 1996 in respect of the child;
(d) the taking of prescribed steps by a person other than the woman as regards statutory shared parental pay in respect of the child.
(3D) Regulations may provide for a reduction in the duration of the maternity allowance period as it applies to a woman to be revoked, or to be treated as revoked, subject to prescribed restrictions and conditions.
(3E) A woman who would, but for the reduction in duration of a maternity pay period by virtue of section 165(3A), be entitled to statutory maternity pay for a week is not entitled to a maternity allowance for that week.
(4) A woman who has become entitled to a maternity allowance under this section shall cease to be entitled to it if she dies before the beginning of the maternity allowance period; and if she dies after the beginning, but before the end, of that period, the allowance shall not be payable for any week subsequent to that in which she dies.
(5) Where for any purpose of this Part of this Act or of regulations it is necessary to calculate the daily rate of a maternity allowance under this section, the amount payable by way of that allowance for any day shall be taken as one seventh of the weekly rate of the allowance.
(6) In this section “confinement” means—
(a) labour resulting in the issue of a living child, or
(b) labour after 24 weeks of pregnancy resulting in the issue of a child whether alive or dead,
and “confined” shall be construed accordingly; and where a woman's labour begun on one day results in the issue of a child on another day she shall be taken to be confined on the day of the issue of the child or, if labour results in the issue of twins or a greater number of children, she shall be taken to be confined on the day of the issue of the last of them.
(6A) In this section “the maternity allowance threshold”, in relation to a tax year, means (subject to subsection (6B) below) £30.
(6B) The Secretary of State may, in relation to any tax year after 2001–2002, by order increase the amount for the time being specified in subsection (6A) above to such amount as is specified in the order.
(6C) When deciding whether, and (if so) by how much, to increase the amount so specified the Secretary of State shall have regard to the movement, over such period as he thinks fit, in the general level of prices obtaining in Great Britain (estimated in such manner as he thinks fit).
(6D) The Secretary of State shall in each tax year carry out such a review of the amount for the time being specified in subsection (6A) above as he thinks fit.
(7) The fact that the mother of a child is being paid maternity allowance under this section shall not be taken into consideration by any court in deciding whether to order payment of expenses incidental to the birth of the child.”
The conditions for entitlement to Statutory Maternity Pay are at section 164 of the 1992 Act.
“ 164. Statutory maternity pay — entitlement and liability to pay
(1) Where a woman who is or has been an employee satisfies the conditions set out in this section, she shall be entitled, in accordance with the following provisions of this Part of this Act, to payments to be known as “statutory maternity pay”.
(2) The conditions mentioned in subsection (1) above are—
(a) that she has been in employed earner's employment with an employer for a continuous period of at least 26 weeks ending with the week immediately preceding the 14th week before the expected week of confinement but has ceased to work for him;
(b) that her normal weekly earnings for the period of 8 weeks ending with the...
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