Court of Appeal dismisses discrimination challenge to the Self-Employed Income Support Scheme

Cases

The Court of Appeal has this morning dismissed a challenge by the Motherhood Plan (aka ‘Pregnant then Screwed’) to the way in which payments under the Self-Employment Income Support Scheme (“SEISS”) are calculated.

The SEISS was introduced to assist the self-employed with the economic consequences of the Covid-19 pandemic. It provided eligible individuals with grants calculated on the basis of a percentage of their ‘average trading profits’ (“ATP”) over previous years. Motherhood Plan argued that this was unjustified indirect discrimination against current and recent self-employed mothers, who (they argued) would be disadvantaged as time off work to look after children would lead to lower historic ATP, and so a lower SEISS grant.

In the High Court, Mrs Justice Whipple held that SEISS was not prima facie discriminatory, as the level of the grant was based on neutral historic factors, and that in any event any discrimination was justified by reason of the urgency with which SEISS had to be introduced.

Following a lengthy analysis of the authorities, the Court of Appeal has held that SEISS was prima facie discriminatory, but that the discrimination was justified. The Court’s reasoning on discrimination focuses attention on the aim of the scheme: to provide a grant to remedy a loss of present income. Given that aim, the use of ATP as a proxy for present income disadvantaged current and recent mothers, as their historic income (to the extent affected by past periods of time off for childcare) would not be a reliable proxy for their present income.

Despite this, the Court of Appeal found that SEISS was clearly justified: ATP was the only practical way in which HM Treasury and HMRC could create a reliable income support scheme, using records which they held, with the speed necessary to provide economic support in the early stages of the pandemic.

Julian Milford QC, Rupert Paines, and Zoe Gannon acted for the Defendant HM Treasury, instructed by the GLD.