Self-Employment Income Support Scheme discriminated against mums - verdict

Mothers who are self-employed were right to complain to FreelanceUK that the Self-Employment Income Support Scheme wasn’t just unhelpful during covid, but was also prejudicial.

Vindicating these freelancers who took maternity leave before the pandemic, the Court of Appeal has now ruled that the government’s SEISS discriminated against new mothers.

In fact, 70,000 mums got lower pay-outs, as the scheme’s ‘average trading profit’ calculation made no adjustment for any reduced trading period owing to pregnancy or childbirth.

'Staggering arrogance'

Thankfully, a group -- Pregnant Then Screwed -- challenged the Treasury on three points of law, says solicitor advocate Michael Coyle, in light of what he called its “staggering arrogance” against new mums.

“The self-employed women said the eligibility criteria and calculation method chosen by the chancellor had a discriminatory effect as neither exempted maternity leave periods."

Boss at Lawdit, Mr Coyle continued to FreelanceUK: “Rishi Sunak disagreed, saying such self-employed people have ‘ups and downs’ in their earnings ‘for all sorts of reasons’”.

'Disproportionate impact'

However, Joeli Brearley of Pregnant Then Screwed (PTS) countered to the Court of Appeal that giving birth was not comparable to taking a holiday or other planned work breaks.

Presiding last month, three judges agreed that in devising the SEISS, the government did indirectly discriminate against freelancers who took maternity leave between 2016 and 2019.

But souring the verdict, the judges said the ‘disproportionate impact’ on new mothers was justified by the exceptional circumstances in which HMT was operating during the pandemic.

'Limited timeframe'

Law firm Doughty Street Chambers added: “The CoA speculated that it would perhaps have been possible to devise a modification to the scheme which accommodated recent mothers.

“But [the judges said] this was not possible in the limited timeframe without compromising the government’s essential requirements of speed, simplicity, and verifiability.”

Unlike Doughty Street Chambers, which assisted PTS, legal advisory Egos was not involved in the Court of Appeal case.

'We were in a hurry'

But that doesn’t make the advisory’s founder Roger Sinclair any less unimpressed at Her Majesty's Treasury.

“The government’s answer was to say, in effect, ‘we were in a hurry’, and it was too difficult to incorporate adequate [fraud] safeguards…and therefore the discrimination was justified.

“Now, it seems to me all very well to say that there was a rush to get something in place that would address the needs of the majority [during ‘unique circumstances’].

“However, it also seems to me that, if you get something wrong, you should try to put it right as soon as you can,” Mr Sinclair told FreelanceUK last night.

'Astonishing'

The legal adviser added: “[And] 70,000 seems to me to be a very large number of injustices, and I find it astonishing that, once the discrimination had been exposed, the government seems to have made no attempt to put it right.”

In line with his comments, Owen Thompson MP says the Treasury is now “dragging its heels and refusing to reimburse the women affected.”

Thanking the SNP for questioning Treasury minister Lucy Frazer on the issue, PTS confirmed online: "[Although] we proved in the court of appeal that the SEISS scheme discriminated against new mothers in the way it was calculated, instead of putting this right, the government are hiding behind the word ‘unlawful.’”

'SEISS did not unlawfully discriminate'

Ms Frazer, in reply to the SNP’s Mr Thompson said on behalf of the government: “The Court of Appeal has confirmed that the SEISS did not unlawfully discriminate against self-employed women who had taken time away from work related to pregnancy or caring for a new baby.”

Saying that the government “welcomes” the CoA’s ruling, the minister added: “Under SEISS, the government has been able to support millions of self-employed people, at scale and pace, making it one of the most generous self-employment income covid support schemes in the world.

“The SEISS grant was based on data HMRC already held and could quickly and easily calculate at scale. Without this mechanism, the schemes might have run into unacceptable delay, created unmanageable manual demand, or risked exposing our support to unacceptably high levels of error and fraud.”

Last night, Labour MP John McDonnell tweeted: “Given the rapid spread of Omicron, if we are to keep people safe, Sunak mustn’t delay in introducing a new furlough scheme, a support for business package and an increase in sick pay. Plus this time round, we can’t have the huge number of freelancers and self-employed excluded.”