The applicant is a charity which campaigns for the rights of women and mothers.  They brought judicial review proceedings against the respondent in relation to the Self Employment Income Support Scheme (SEISS).  SEISS was brought in to provide support for those who were self-employed and had been adversely affected by the coronavirus pandemic. The claim was that the scheme had breached Article 14 (the prohibition on discrimination) of the European Convention on Human Rights when taken in conjunction with Article 1, Protocol 1 which was the free enjoyment of possessions.  This was based on the grounds of sex with the argument being that those who had taken maternity in the years preceding SEISS were disadvantaged.  They were disadvantaged on the basis that those previous years were used to calculate the support that should be given and where maternity had been taken in a previous year then it would be lower as a result.  

The Court of Appeal found that the High Court was wrong to find that the use of previous earnings did not constitute prima facie indirect discrimination.  The idea that it was not the scheme but rather the reduced earnings which led to the disadvantage was misidentifying why the disadvantage had arisen.  This meant that prima facie indirect discrimination had been found.  However, the issue was whether this could be justified.  On this point, the Court of Appeal found that there was justification in the scheme and how it operates considering that it fell within the field of social and economic policy and that it was a political decision.  There were also legitimate aims in terms of SEISS in that it had to be delivered at speed, it had to be effective and there had to be ease in the verification process to ensure that those in the situation where their earnings had dissipated could avail of the protection.  

The Court of Appeal also acknowledged that the scheme was created in a time of unique and extreme circumstances caused by the pandemic.  Requiring additional information from those in the position detailed by the applicant would have significantly delayed its implementation.  As a result, the scheme was justified and the claim was dismissed. 

Practical Lessons

This case demonstrates the approach that the courts will take when they are met with matters arising out of the early stages of the pandemic.  The court makes clear that they were ‘unique’ and ‘extreme’ circumstances.  This has to be considered when there are claims that are brought relating to them.  In this case it was a claim based upon indirect discrimination and it fell to determining whether the action was justified.  As a result, the court will take into account the extreme and unique circumstances in determining whether such action was justified.  It is not unlikely that there will be various claims brought relating to the Government’s action during the pandemic and it seems clear that there will be weight given to the unique circumstances faced at the time.  
https://www.bailii.org/ew/cases/EWHC/Admin/2021/309.html