Lone parents aim for Supreme Court in ongoing legal challenge against the ‘two-child limit’ in tax credits and universal credit | CPAG

Lone parents aim for Supreme Court in ongoing legal challenge against the ‘two-child limit’ in tax credits and universal credit

Published on: 
16 April 2019

Child Poverty Action Group (CPAG) is seeking leave to appeal to the Supreme Court on behalf of two lone mothers with children affected by the two-child limit. The move follows a Court of Appeal decision today which recognised that children in families with more than two children were prejudicially affected by the policy, but considered that the court was not a suitable institution for deciding on the balance between the interests of children and the interests of the community as a whole in ensuring parental responsibility.

The case was brought on behalf of two lone mothers who each had more than one child before the policy started in April 2017 and who then gave birth to another child after that date. The policy denies tax credits and universal credit to third and subsequent children born after 6 April 2017 save for very limited exceptions. Neither of the mothers in the case intended to conceive the child born after 6 April 2017 – and one was using the contraceptive pill – but, for moral reasons, neither was willing to consider a termination of their pregnancy. One claims Working Tax Credit, the other Income Support in addition to child tax credit.

The Court of Appeal had to decide whether the differential treatment of children in families with more than two children could be justified by the rationale for the policy put forward by the government. The government put forward three aims: 

  • reducing the fiscal deficit by reducing public expenditure on welfare benefits
  • incentivising people to support themselves and their families through work
  • ensuring that the social security system is fair to taxpayers and making families in receipt of benefits face the same choices in deciding how many children to have as those who support themselves solely through work.

Two of these aims – reducing public expenditure and incentivising work – were found not to be “rationally capable of providing a justification for limiting entitlement to tax credits on the grounds of the number of children in a family”. This was because reducing expenditure could not justify placing the burden on one particular group and because incentivising work is a generic aim applying equally to all people being supported through benefits and, therefore, could not justify cutting benefits payable to families with more than two children as opposed to families with two or fewer children.

The Court considered that the third aim of fairness and parental choice, when looked at in terms of interests of the children affected, could not be a valid basis for the differential treatment since the children have no choice over the size of family they are born into. However, the Court went on to consider that parental choice and responsibility had to be taken into account also. Since Parliament had considered the issues and passed the legislation, the Court concluded that it should be very slow to displace the balance struck by Parliament on a contentious issue of social and economic policy.

Child Poverty Action Group’s solicitor Carla Clarke said:

“We are disappointed to have lost the appeal overall, but are heartened by the court’s recognition of the interests of children and the need to take account of the UN Convention on the Rights of the Child.

Today’s judgment should not be seen as supportive of the government’s position as it found that two of the three stated aims of the two child policy were incapable of justifying its prejudicial impact on families with more than two children.

The government’s third aim of ensuring fairness to the taxpayer and that all face the same parental choices was found to have no justification from the perspective of the children affected. In relation to parents, we maintain that this is clearly undermined by the fact that two thirds of tax credit recipients with three or more children are in work and that the policy will also affect people who have their children at a time when they are able to support themselves solely through work, but at some time in the future may have a need for support from the social security system.

In its first two years of operation, the two-child policy has led to an estimated 150,000 families being denied support for an additional child through tax credits or universal credit – so far its impact has been solely on babies and toddlers. By the time universal credit is fully rolled out in 2023-24, 300,000 more children will be in poverty as a result of the policy(1). We are seeking permission to take the case to the Supreme Court because we believe that all children are equally deserving of support regardless of their birth order.”


Notes to Editors:

The mothers and their children in the case are protected by anonymity orders.

More background on the case can be read here.

The child element of child tax credits and universal credit is worth £2,780 per year and, until April 2017, was payable for all children in low-income families to protect them against poverty. The largest group affected by the policy once fully rolled out will be working families with three children.

Third or subsequent children born before the policy was introduced in April 2017 are exempted from it as are those in kinship care, adopted children and third or subsequent children conceived as a result of non-consensual sex and the ‘additional’ child in any multiple pregnancy.

(1) In March 2019 the Institute for Public Policy Research modelled the impact of the two-child policy on child poverty rates, using the IPPR tax-benefit model and data from the 2016/17 family resources survey.

Two thirds (66%) of tax credit recipients with three or more children are in work and we would expect a similar proportion for universal credit recipients. The two-child limit will also affect families who had more than two children at a time when they were able to live solely on earnings, but at some point in the future may need support from benefits in the event of redundancy, separation, illness or disability.

The latest annual poverty statistics are here

Poverty figures quoted in this release are for relative child poverty, measured as children living in households below 60% of median income, adjusted for family size, after housing costs.

CPAG media contact: Louisa McGeehan on 0207 812 5216 or 07816 909302