R (The Motherhood Plan & Anor) v HM Treasury

Court of Appeal: Underhill VP, Baker and Davies LJJ, [2021] EWCA Civ 1703, 24 November 2021

This was an appeal from the refusal of a challenge to the lawfulness of the Self-Employment Income Support Scheme (“SEISS”) introduced by the government during the first Covid-19 lockdown. The claimants argued that the scheme breaches Article 14 ECHR read with A1P1 by discriminating against self-employed women who took a period of leave relating to maternity or pregnancy in any of the three relevant tax years on which SEISS payments were calculated, this because the level of support granted to them under the scheme was not representative of their usual profits. Whipple J had dismissed the claim having considered the extraordinary pressures under which the scheme was introduced (including the imperative to distribute funds speedily) and the fact that the scheme adopted operated on the basis of data already held by the state. She was not persuaded that the claimants had demonstrated indirect discrimination or Thlimmenos discrimination but proceeded to consider justification, upon which she found against the claimants having adopted the “manifestly without reasonable foundation” approach (the correctness of which had been common ground between the parties).

The claimants appealed on the basis that Whipple J had erred in her approach to indirect discrimination, to Thlimmenos-type discrimination, and to justification. The Court of Appeal (Underhill and Baker LJJ, with whom Davies LJ agreed) agreed that the Judge had misdirected herself as to indirect discrimination by failing properly to take into account the disparate impact of the scheme on women who had taken maternity leave. It found it unnecessary to consider the challenge to the Judge’s application of Thlimmenos and (having considered the decision of the Supreme Court in R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26, [2021] 3 WLR 428 (see previous post) dismissed the appeal on the basis that Whipple J had been entitled to find that any discrimination was justified (further, that it was in fact so justified). The case provides further illustration (see also R (Salvato) v Secretary of State for Work and Pensions [2021] EWCA Civ 1482 and related post) that  the movement away from the “manifestly without reasonable foundation” test in cases where suspect grounds are in play is by no means a panacea for claimants.

Continue reading

R (Salvato) v Secretary of State for Work and Pensions

Court of Appeal: Underhill VP, Andrews and Warby LJJ, [2021] EWCA Civ 1482, 13 October 2021

This was an appeal from the decision of the High Court discussed in a previous post. In brief, the High Court (Chamberlain J) ruled that the requirement that the childcare element (CCE) of Universal Credit (UC) could be paid to applicants only after they had actually paid for childcare, rather than becoming liable so to do (“the proof of payment rule”), was unlawful because it discriminated indirectly against women contrary to Article 14 ECHR read with Article 8 and/or A1P1, also because it was irrational. Andrews LJ, with whom Underhill VP and Warby LJ agreed, allowed the Secretary of State’s appeal on both grounds, despite having followed the approach of the Supreme Court in R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26, [2021] 3 WLR 428 (see associated post) to the question of justification. Having stated at §11 that “Much of the Judge’s legal analysis is exemplary”, Andrews LJ concluded nonetheless that “the Judge did fall into material error when he sought to apply the principles he identified to the evidence in this case, and … there are deficiencies in the reasoning which led him to conclude that the Rule was indirectly discriminatory and irrational.” Continue reading

R (A) v Criminal Injuries Compensation Authority & Anor

Supreme Court, [2021] UKSC 27, [2021] 1 WLR 3746, 9 July 2021

Lord Lloyd-Jones, Lady Arden, Lords Hamblen, Burrows and Stephens

The question for the Supreme Court was whether the exclusion of victims of human trafficking, from compensation under the 2012 iteration of the Criminal Injuries Compensation Scheme (“the CICS”) on the ground of their previous criminal convictions unjustifiably discriminated against them contrary to Articles 4 and 14 ECHR. The Court (per Lord Lloyd-Jones with whom Lady Arden and Lords Hamblen, Burrows and Stephens agreed) adopted broad approaches both to “ambit” and to “other status”. It accepted that the discrimination fell within Article 4 ECHR and that “having an unspent conviction which resulted in a custodial or community sentence is a status for the purposes of art 14”.

Because the claimants’ criminal convictions pre-dated and were unconnected with their status as victims of human trafficking the Court rejected their Thlimmenos claim that they had were entitled, by reason of being trafficked, to be treated differently from other CICS applicants with criminal convictions. The court did accept that the claimants had been discriminated against as people victims of trafficking with relevant unspent convictions, but concluded, having considered the approach of the Supreme Court in R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26, [2021] 3 WLR 428 (see associated blog), that such discrimination was justified. Continue reading

Asda Stores Ltd (appellant) v Brierley & Ors (No.3)

Supreme Court: Lord Reed P, Lord Hodge DP, Lord Lloyd-Jones, Lady Arden and Lord Leggatt JJSC, [2021] UKSC 10, [2021] ICR 786, 26 March 2021

This is the latest in a series of cases in which the UK’s highest court has had to consider whether a group of women employees are entitled to compare themselves with a group of male employees working for the same employer but employed in a different establishment. Continue reading

R (SH) v Norfolk County Council & Anor

Administrative Court: Griffiths J, [2020] EWHC 3436 (Admin), 18 December 2020

This is a carefully reasoned and lucid decision from Griffiths J on the application of Article 8 and /or A1P1 read with Article 14 ECHR. Continue reading

Adiatu & Independent Workers Union of GB v HM Treasury

Divisional Court: Bean LJ and Cavanagh J, [2020] EWHC 1554 (Admin), 15 June 2020

The claimants sought unsuccessfully to challenge the approach taken by the Chancellor to the furlough scheme, arguing in particular that the exclusion of self-employed workers from entitlement to furlough payments and the restriction of payments for non-furloughed workers who could not attend work (because they were symptomatic or self-isolating) to SSP discriminated against self-employed workers contrary to Article 14 EHCR, and indirectly discriminated against women and BAME workers contrary to EU law. They also claimed that the Chancellor had failed to pay regard to the PSED in designing the scheme. Continue reading