Court of Appeal hears two-child limit challenge | CPAG

Court of Appeal hears two-child limit challenge

Published on: 
19 December 2018

Child Poverty Action Group (CPAG) is continuing its legal challenge to the two-child limit for universal credit and tax credit payments in the Court of Appeal on Wednesday 19th and Thursday 20th December. (1) The case is 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 the child element of tax credits and universal credit to third and subsequent children.

Neither of the mothers in the case intended to conceive the children born after 6 April 2017 – indeed one was using the contraceptive pill - but, for moral reasons, neither was willing to consider a termination of their pregnancy.

The child element of child tax credits and universal credit is worth up to £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.

Child Poverty Action Group says the policy breaches the UN Convention on the Rights of the Child and unlawfully discriminates against children as, uniquely, it no longer treats them as worthy of individual consideration for entitlement to subsistence benefits.

This week’s hearing follows a High Court decision in April which allowed in part an earlier challenge to the policy brought by CPAG. (2) In this case, the court accepted CPAG’s argument that all kinship care children should be exempt from the two child limit, rather than only third or subsequent kinship care children. The then Secretary of State for Work and Pensions subsequently removed the same ordering restriction to the exemption for adopted children.

This week’s hearing comes ahead of an extension of the policy from February 2019 which will mean families with three or more children who make a new claim for universal credit will not receive the child element for third or subsequent children, even if those children were born before the policy came into effect in April 2017.

Child Poverty Action Group’s solicitor Carla Clarke said:

“The two-child policy singles out some children and denies them support on the arbitrary basis of their birth order. But children have no control over their birth order. Their needs are no less because of where they happen to be in a sibling line-up. If children’s best interests are the primary consideration, this policy fails at the first hurdle. We say it is unlawful and should be abolished on the grounds that all children have equal entitlements to subsistence support .”

Forty two per cent of children in families with three or more children are poor, compared to a 30% child poverty rate overall. (3) Analysis by CPAG and IPPR found that once universal credit is fully rolled out, the two- child limit will result in up to 200,000 additional children in poverty. (4) Given such a severe impact on child poverty, CPAG says, the policy is in breach of the UK’s obligation under the UN Convention on the Rights of the Child to give primary consideration to the best interests of the child.


Notes to Editors:

  • In tax credits third or subsequent children born on or after 6th April 2017 will not be eligible for the child element.
  • Families on universal credit (UC) who were already receiving the child element for three (or more) children at 6th April 2017 will continue to receive those child elements.
  • Families already on UC who had a third (or subsequent) child on or after 6 April 2017 are not entitled to the child element for that child, or any further children born during their claim.
  • Families with three or more children are not currently able to make a new claim for UC until February 2019 (they must instead claim tax credits). From February 2019, families making a new claim for benefits will only be able to claim UC and will not be eligible for child elements for any third or subsequent children irrespective of when they were born.
  • Transitional arrangements mean that families claiming UC will receive a child element for a third or subsequent child if that child has previously received a child element in either tax credit or UC within the last 6 months, meaning that families moving from tax credits on to universal credit will not lose out overnight through the two-child limit.

Multiple births, kinship care and adopted children and third or subsequent children likely to have been conceived as a result of rape or a coercive or controlling relationship are also exempt from the policy.

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

The DWP has argued that the two-child policy ensures tax credit and universal credit recipients face the same financial choices about family size as those supporting themselves solely through work, but this argument is wholly undermined by the fact that sixty six per cent of families with three or more children claiming tax credits are already working (5) (a proportion which is likely to be mirrored in universal credit when it is fully rolled out) and by the fact that the policy will also affect families who had more than two children at a time when they were able to live on earnings only but were subsequently obliged to claim a benefit after a redundancy, separation, illness or disability.

(1) More information on this week’s case is here

(2) More information on CPAG’s earlier case and the April 2018 Court finding is here

(3) Households Below Average Income, Statistics on the number and percentage of people living in low income households for financial years 1994/95 to 2016/17, Table 4.5db. Department for Work and Pensions, 2018.

(4) CPAG’s analysis with IPPR is here

(5) Child and Working Tax Credits statistics: finalised annual awards - 2016 to 2017 datatables, ‘Main aggregates’ table (for the overall stat) or Table 2.2

CPAG media contact: Jane Ahrends 0207 812 5216 or 07816 909302