Legal challenge to treatment of maternity allowance under UC

Being heard in the High Court today and tomorrow –

Moore and Others v Secretary of State for Work and Pensions CO/4081/2019

On 18 October 2019, CPAG issued judicial review proceedings challenging the treatment of maternity allowance (MA) as unearned income in the calculation of universal credit (UC) awards. There will be a “rolled up” hearing of the case on 24th and 25th June, meaning that permission to apply for judicial review will first be considered and, if permission is granted, the substantive case will be considered at the same hearing.

The first ground of the challenge is therefore that the difference in treatement between women claiming SMP and those claiming MA is discriminatory. Women claiming SMP are not only better off financially, but also in terms of quality of family life, as a woman under financial pressure may be less inclined to take her full maternity leave and to return to work to ease the difficulties. CPAG argues that the difference in treatment of these two groups of women, and its discriminatory effect, is not justified and breaches Article 14, read with Article 8 and Article 1, Protocol 1.

The second ground of the challenge is common law unreasonableness. The detrimental effect of this policy on women claiming MA and their children is not necessary in order to acheive the aims of the SSWP and actually harms their aim of ensuring that work pays and is seen to pay, as a woman claiming MA is no better off by being an employee or meeting the work requirements for MA.

The third ground of the challenge is a failure to exercise the public sector equality duty, as required by s149 of the Equality Act when dealing with protected characteristics, which includes pregnancy and maternity. In the Equality Impact Assessment carried out in November 2011, the stated intention is for UC to “draw together the approach taken by existing benefits and tax credits”, in respect of maternity payments. However, the treatment of MA under UC is significantly different to its treatment under tax credits, where a woman receiving MA was treated as being in remunerative work in order to qualify for working tax credits, but the MA was disregarded in full in the calculation of awards, leaving women claiming MA in a similar position to those claiming SMP. The failure to consider the difference between the tax credit system and the current UC system in their treatment of MA implies that the PSED was not exercised with sufficient rigour.

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