Pregnant students and means-tested benefits
David Simmons examines the barriers to accessing means-tested benefits for full-time students who have to interrupt their studies because of pregnancy.
This article considers whether full-time students who interrupt their studies because of pregnancy can claim income support (IS), income-based jobseeker's allowance (JSA), housing benefit (HB) and council tax benefit (CTB).
It does not cover students aged 19 or under in 'relevant' (i.e. non-advanced) education, who are excluded from claiming JSA and can only claim IS in prescribed circumstances. Note also, that part-time students can claim means-tested benefits if they satisfy the normal conditions of entitlement. For details of what counts as relevant education and who counts as a full or part-time student, see Chapter 25 of CPAG's Welfare Benefits and Tax Credits Handbook.
Full-time students and benefits
Full-time students (which for HB and CTB includes those in 'relevant education') can only claim IS, JSA, HB and CTB in prescribed circumstances, the most significant of which are where the claimant:1
- is a lone parent with a child under 16 (under 19 for HB/CTB) (this does not apply to JSA); or
- qualifies for a disability or severe disability premium, or has been incapable of work for 28 weeks (this does not apply to JSA); or
- is waiting (for up to a year) to resume a course having taken approved time out because of illness or caring responsibilities which have now ceased (this does not apply to IS).
There is no provision for full-time students to claim IS, JSA, HB and CTB on the basis of pregnancy. Further, the rules treat a person as a full-time student until the last day of his or her course, or until s/he finally abandons her/his course or is dismissed from it.2 This means that a full-time student who temporarily interrupts a course because of pregnancy, still counts as a full-time student until the last day of the course and is excluded from benefit unless she falls within one of the prescribed circumstances referred to above (note, however, that the exclusion should not apply if the student is returning to a different course). In the case of a prospective lone parent, she will only be able to claim benefit once her baby is born.
The rules mean that many pregnant students have to abandon their course in order to access means-tested benefits. At first blush, they appear to clearly discriminate against pregnant women. Mounting a successful legal challenge on the basis of discrimination, however, is fraught with difficulty.
Challenging the rules
The argument that the refusal of JSA to a student who interrupted her full-time degree course because of pregnancy was direct sex discrimination in contravention of Article 4 of EC Council Directive 79/7 (the 'equal treatment' Directive) was accepted by a Commissioner in case CJSA/1920/1999. That decision was overturned by the Court of Appeal, however, in the case of Walter (reported as R(JSA)3/02). The Court held that the claimant was excluded from JSA because she was a student and not because she was pregnant (the exclusion applied before and after she became pregnant and applied equally to women and men), so there was no breach of Directive 79/7. The Court did, however, leave open the question of whether the regulations are indirectly discriminatory against women because they have a disproportionate effect on them. It is arguable that a higher proportion of women than men are likely to be affected by the rules because all the reasons for interrupting a course are 'gender neutral' apart from pregnancy (and possibly caring responsibilities, which may be more likely to affect women).
This question of whether or not the refusal of JSA to a pregnant student constituted indirect discrimination under Directive 79/7 was considered in CJSA/825/2004. The Commissioner held that to establish indirect discrimination, it is necessary to produce evidence (presumably statistical evidence) which proves that women are disproportionately affected by the regulations. This would presumably include statistics on the number of intercalating students, the proportion of men and women, and the proportions claiming and refused benefit. The appeal failed because there was no such statistical evidence. If there was indirect discrimination, the question would have arisen as to whether such discrimination was 'objectively justified' (if it was, there would have been no breach of Directive 79/7).
IS, HB and CTB are not covered by the scope of Directive 79/7. Discrimination, however, is also prohibited under Article 14 of the European Convention on Human Rights, where it occurs in relation to one of the other Convention rights. Article 1 of Protocol 1 of the Convention prohibits the deprivation of possessions. It is arguable that the refusal of IS, HB and CTB to a pregnant student constitutes the discriminatory deprivation of a possession.
The argument is yet to be fully tested in terms of case law, but there are a number of formidable obstacles to a successful outcome.
- Firstly, although the recent case of Stec and others v UK in the European Court of Human Rights strongly supports the contention that non-contributory benefits can constitute possessions for the purposes of Article 1 of Protocol 1, the opposite conclusion was reached by the Court of Appeal in Reynolds (see Welfare Rights Bulletin 188 for a discussion on this conflict - the recent case of Kay and others v Lambeth  UKHL 10 also confirmed that in the case of such a conflict, the domestic case law should be followed, save in exceptional circumstances).
- Secondly, following Walter, it is not possible to assert direct discrimination, and following CJSA/825/2004, arguments relating to indirect discrimination may founder through the lack of statistical data (it appears that neither the DWP nor the Higher Education Statistics Agency can provide any relevant data). Although the case of Bobezes confirmed that statistical evidence was not always required where a provision was 'intrinsically liable' to be discriminatory, this was in the context of discrimination based on nationality and the Court stated that the position would be different in the case of sex discrimination which was not obvious.
- Thirdly, even if discrimination is established, the question of whether or not it is objectively justified would have to be addressed.
CPAG is currently advising on an appeal before the Commissioner by a pregnant student who is arguing that the refusal of IS breaches her human rights (CIS/1132/2006). We will report the outcome in the Welfare Rights Bulletin.
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