Hello all

As we all know, if an employed worker can claim Statutory Maternity Pay if having a baby, and Statutory Adoption Pay if adopting.

A self-employed worker can claim Maternity Allowance if having a baby, but an adopter can't claim an equivalent Adoption Allowance because it doesn't exist (let's forget about payments from Social Services as a different matter altogether).

Now, I know that for Maternity Allowance you have to be pregnant or have recently given birth - but do the rightsnet experts think that is any mileage in a Human Rights based argument about the right to family life?

I'm thinking that in a similar(ish) situation Social Fund Maternity Grants were extended to people with a Residence Order :-

"In Francis, the Court of Appeal unanimously held that the difference in treatment between those carers who have an Adoption Order in respect of a baby and those who have a Residence Order is discriminatory, under Article 14 of the European Convention on Human Rights, and that there was no rational justification for the difference in treatment."

On the other hand, I don't want to waste my - and an adopter's - time making the claim and pursuing it through the system if the whole notion is inherently flawed...

Any comments? Merry Christmas?

1. The provision you want to attack as breaching adopter's human rights is in primary legislation (Sec 35(1) SSCBA 1992). This means that Commissioner could (even if they agreed there was a breach) do nothing about it. That would mean your remedy had to be by way of Judicial Review (as you need it to go to High Court to get the declaration of incompatibility etc- which even then won't provide a remedy for your client). Client would need a legal aid certificate to go to High Court so probably needs to be on IS- if a client is on IS may not be better off on Maternity Allowance- you would have to find a non IS claimant on very low income etc.

2. Sec of State may argue that the purpose of MA is to assist pregnant women and they not an analogous group to an adopters. May say that there is other separate provision for adopters (soc services payments you mentioned etc)etc.

Thanks a lot for this useful advice.

I think point 1 in itself will prevent any further action in the case I am thinking of...unless there's anything else to add, of course.