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Summary

In this decision, the Court of Appeal unanimously dismissed the further appeal of the claimants against the decision in the High Court ([2025] EWHC 1849 (Admin). In the High Court, Mrs Justice Collins Rice DBE CB had rejected the arguments of the claimants, the main one of which was that in the exception to the two-child limit in universal credit (UC) regarding non-consensually conceived (NCC) children, the requirement for the NCC child to have been the claimant’s third or subsequent child was unlawful as a breach of the prohibition of discrimination in Article 14 (read with Article 1 of Protocol 1 or Article 8) of the European Convention on Human Rights.

The further appeal of the claimants to the Court of Appeal argued that:

1. their treatment by the relevant regulations (regulations 24A–24B and Schedule 12 to the Universal Credit Regulations 2013, SI No.376) was not justified and so was discrimination under Article 14;
2. the judge in the High Court erred in failing to conduct a proportionality assessment; and 
3. also erred by trespassing into family law principles on parental responsibility and treating those as relevant to the issue of justification. 

Giving the lead judgment in the Court of Appeal, Lord Justice Lewis dismissed the appeal. The court agreed that it was its role in this case to carry out its own, fresh assessment of proportionality. That included because there was ‘high importance for society’ as the issue concerned ‘the way in which a particularly vulnerable group within society, women who have suffered extreme forms of domestic and sexual abuse, are treated in terms of access to welfare benefits’ (paragraph 35).

Regarding alleged discrimination, there was no doubt that the arguments were within the scope of Article 14. There was doubt as to whether the claimants were in a materially analogous situation to their alleged comparators – ie, to adopters/non-parental carers taking responsibility for a third child (who benefit from an exception), or to parents with two consensually conceived children who then have an NCC third child (who also benefit from an exception). But the court nevertheless assumed that they were, in order to carry out its own proportionality assessment. Regarding adopters/non-parental carers, the exception for them was to avoid discouraging them to assume responsibility for children, was ‘proportionate and justifiable’ and ‘did not call for extension’ to other groups (paragraphs 44–47). Regarding parents with an NCC third child, the important fact here was ‘the state of affairs at the time’ of that conception – ie that the woman had no choice or control (paragraph 48). But for the claimants, having a consensually conceived third child involved ‘an element of choice’ and granting an exception to them ‘would run counter to the aim of fixing a limit on the number of children in respect of whom the child element of universal credit could be claimed’ (paragraph 49). Although differential treatment on grounds of sex certainly requires ‘very weighty reasons’, in these cases the different treatment instead had ‘a differential impact on different groups of women’ (paragraph 50). In conclusion, the way the regulations treated the claimants was proportionate and justified. It followed that arguments (2) and (3) of the claimants were not material. But for completeness it was held that the judge in the High Court had not erred in these ways. She did carry out a proportionality assessment. References in her judgment about the issues being ones of fairness or the social and economic merits of the two-child limit rather than legal ones were just ‘a strand in her reasoning’, and her reference to the law of parental responsibility reflected just ‘one facet of the issues that the judge was considering’ (paragraphs 54–55).

Comment from CPAG

CPAG, who brought the case for the claimants, has applied for permission to appeal to the Supreme Court. Although the two-child limit is no more, it remains relevant in the pre-5 April 2026 context.

Decision in brief

Claimant initially paid rent to a housing association under a shared ownership scheme, and was entitled to housing benefit for that rent – but when she bought the 50 per cent share owned by the housing association with her daughter and son-in-law and the Land Registry entry showed the freehold had been transferred jointly to them, she became an ‘owner’ of the property for the purposes of regulation 12 of the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006, and no longer entitled.

Summary

The claimant provided a fit note in February 2024. The DWP eventually awarded the limited capability for work-related activity (LCWRA) element on the basis that the claimant had notified his health condition with effect from 8 February. The claimant argued that he had notified that earlier, on or around 27 December 2021, in a series of meetings or phone calls with the DWP at which his health and ability to work were discussed. The First-tier Tribunal rejected that, and held that although any declaration of his health condition and limitations ‘would suffice to start the assessment process’, on the facts he had not notified the DWP that he was not fit for work on any of the earlier dates he relied upon. 

In the Upper Tribunal, Judge Ward set the decision aside and remitted the case to a fresh tribunal. The relevant rules about evidence in this context are in the Social Security (Medical Evidence) Regulations 1976. The basic requirement, made in regulation 2(1), is to provide evidence of limited capability for work by way of a ‘fit note’. But that is subject to the possibility of evidencing an initial seven days of incapacity by way of a self-certificate, and also to regulation 2(1A) which provides that where it would be ‘unreasonable’ to require a fit note, ‘such other evidence as may be sufficient’ may be submitted instead. The tribunal had erred in failing properly to consider regulation 2(1A) regarding the earlier dates argued for by the claimant. In the circumstances, the tribunal was required to consider if it was unreasonable to require the claimant to have provided a fit note earlier than he did, and if so, whether the alternative evidence provided (ie, regarding the conversations about his health) was ‘sufficient’ evidence of his limited capability for work. The tribunal had not done that, and that was best done now by a fresh tribunal. 

The judge accepted the argument of the Secretary of State that, regarding self certification under regulation 5, that had to be in writing and so the claimant’s (alleged) oral notification of his condition could not suffice for that purpose. Judge Ward also addressed the claimant’s submission of a backdated fit note, dated 20 May 2024, which stated that he was unfit for work from 6 December 2021 to 9 February 2024. The tribunal concluded that it was in contradiction of the ‘clear’ evidence regarding that period. Given that, the judge did not think the tribunal had dismissed it, as the claimant argued, solely because it was obtained later. How should the fact that it was backdated have been treated? Under section 12(8)(b) of the Social Security Act 1998, the tribunal ‘shall not take into account any circumstances not obtaining at the time when the decision appealed against was made’. Because there is a difference between circumstances and evidence of those circumstances (R(DLA) 2/1 and 3/01 were cited), the judge held that a tribunal:

‘would be entitled to treat a relevantly retrospective fit note given after the date of the DWP’s decision as relevant evidence of the state of a claimant’s health down to the date of the decision’. 

The weight to be given to that evidence would be a matter for the tribunal. But what would be precluded by section 12(8) (b) ‘would be to rely on the fact of the fit note having been issued when it post-dated the DWP’s decision’ – ie, to regard a fit note actually to have been issued at the time the decision was made (paragraph 17).

Comment from CPAG

Regarding backdated fit notes, the decision is authority that they can be evidence of the state of the claimant’s health in the past period covered by the note but, before a First tier Tribunal, cannot constitute retrospective satisfaction of regulation 2(1). But that is not necessarily fatal to the claimant’s case. The tribunal should consider whether regulation 5 or 2(1A) was satisfied instead.

Decision in brief

Claimant’s son was a non dependant that meant she was not entitled to the severe disability premium (SDP) – he moved out and shortly after became entitled to PIP, but she did not report him moving out for five years – claimant’s argument that she was nevertheless entitled to a supersession (and the SDP) effective from the point he moved out rather than when from she eventually reported the change rejected – case fell within regulation 6(2)(a) of the Social Security (Decisions and Appeals) Regulations 1999 (change of circumstances) and not, as contended for by the claimants, regulation 6(2)(e) or (ee) – CPC/2634/2015 approved – no breach (via discrimination) of European Convention of Human Rights.