Maternity pay following a stillbirth – a recent case

By Katie Wood, Senior Legal Officer

A woman is entitled to maternity leave and any maternity pay that she qualifies for if her baby is stillborn after the end of the 24th?week of pregnancy. However, there can be uncertainty about how to work out the end of the ‘24th?week of pregnancy’. This blog looks at a recent tribunal case, supported by Maternity Action, which provides some clarity about rights to maternity pay following a stillbirth.

Tribunal decision

In?AH v SSWP, 3/4/2023, First-tier Tribunal Brighton, the claimant appealed against the refusal of her Maternity Allowance. Her baby had not survived and was delivered on 27/6/2022. The hospital provided her with a certificate acknowledging the delivery of her baby and estimating that the pregnancy had lasted 23 weeks and 3 days.?

A medical estimate of the length of pregnancy may be based on a number of factors including scans, examination of the foetus or counting forward from the first day of the last menstrual period. If a medical professional estimates that a pregnancy lasted for a full 24 weeks a certificate of stillbirth will be issued. This will entitle a woman to maternity leave and any maternity pay that she qualifies for.

In this case the claimant was not issued with a stillbirth certificate as the estimated length of pregnancy was just short of a full 24 weeks, however, the claimant had been issued with a MATB1 maternity certificate which stated that her due date was 18/10/2022.?

Department for Work and Pensions (DWP) guidance on maternity benefits (Vol. 10, Chapter 62 ) currently states: ‘The end of the period of a full 24 weeks is therefore 16 weeks (112 days) before the expected date?of confinement.’ On this basis, counting back 16 weeks from the due date meant that the end of the 24th?week was 28/6/2022. The claimant’s baby was delivered on 27/6/2022 and by this calculation she was still one day short of qualifying for Maternity Allowance.

We argued that the correct calculation for the end of the 24th?week of pregnancy for Maternity Allowance purposes was counting back 16 weeks from the expected?week?of childbirth, not the due date, and the tribunal agreed with us. The claimant’s expected week of childbirth began on 16/10/2022. Counting back 16 weeks meant that the end of the 24th?week of pregnancy was 26/6/2022. The tribunal awarded Maternity Allowance as her baby was delivered on 27/6/2022.

How to work out the end of the 24th?week of pregnancy for entitlement to maternity leave and pay

The Social Security Contributions and Benefits Act 1992 states that for Statutory Maternity Pay (SMP) and Maternity Allowance purposes a?“week” means a period of 7 days beginning with a Sunday. The MATB1 maternity certificate (which is issued to all women after 20 weeks and is required for claiming SMP or Maternity Allowance) also states that a week is 7 days beginning on a Sunday and ending on a Saturday. The judge agreed and stated:

‘Accordingly, in my view, the correct calculation would be to count back 16 weeks from the expected week of confinement…’

All employees are entitled to maternity leave (up to 52 weeks off work) as a day one right following a stillbirth or a live birth (at any stage) including where a baby only survives for a short time. Employed women (including agency and casual workers) may be able to qualify for SMP if they have been employed by the same employer for 26 weeks by the end of the 15th?week before the expected week of childbirth (or would have been had their baby not been delivered prematurely) and they have earnings of at least ￡123 per week on average in the previous 8 weeks.?

Maternity Allowance is available to women who do not qualify for SMP and is more flexible. Employed and self-employed women can claim Maternity Allowance if they have been employed or self-employed for at least 26 weeks in the 66 weeks before their expected week of childbirth and have earnings of at least ￡30 per week on average in 13 of those weeks.

Does this case only apply to Maternity Allowance decisions?

This case concerned an application for Maternity Allowance and Maternity Action has asked DWP to review their guidance in light of the decision. First-tier Tribunal decisions are not binding on other tribunals but may be taken into account. If a claim for Maternity Allowance is refused it is important to ask for a mandatory reconsideration (DWP will look at the decision again) within a month or as soon as possible. If the decision is not changed you can appeal. See below for where to go for more help.

The same arguments may apply to calculating the end of the 24th?week of pregnancy in working out entitlement to maternity leave and SMP. The regulations state that entitlement is based on ‘labour after 24 weeks of pregnancy resulting in the issue of a child whether alive or dead’. Even if the medical evidence provided at the time of delivery is unclear, it is arguable that a woman is entitled to maternity leave and SMP (if she meets the employment and earnings conditions) if her baby is delivered in or after the 16th week before the expected week of childbirth based on the date of the MATB1 maternity certificate.

Where to go for more help

For more information about rights to maternity leave and pay following miscarriage, stillbirth or the death of your baby, see the?Maternity Action information sheet here .

If you would like advice about your situation you can call our?advice line ?or use our?contact form