Two child limit challenge | CPAG

Two child limit challenge

25 November 2019

SC and Ors v SSWP [2019] EWCA Civ 615

This is a challenge to the two child limit, introduced by the Welfare Reform and Work Act 2016. CPAG's challenge was unsuccessful in the Court of Appeal and permission has been granted to appeal to the Supreme Court. The case will be heard in the Supreme Court on 20-22 October 2020. Read the Court of Appeal judgment and our press release

In the earlier High Court case, the original challenge was allowed in part in a judgment given on 20 April 2018. The Court accepted the claimant's arguments that the ordering restriction on the kinship care exception was perverse and therefore unlawful.  The wider challenge to the policy as a whole was dismissed and this is the issue that CPAG is continuing to challenge in the upcoming Supreme Court hearing. Meanwhile, in November 2018, the DWP/HMRC brought in amending legislation to remove the ordering restriction from both the kinship care and adopted children exceptions. Read the High Court judgment and our statement about the judgment 

Background to this case:

On 6 April 2017, new rules came into force limiting the child element of child tax credit (CTC) and universal credit (UC) awards to two children. This limit only applies to a third or subsequent child born on or after 6 April 2017. There are a limited number of exceptions to this 2 child limit meaning that it does not apply to a third or subsequent child in the following circumstances: multiple births, adoption from local authority care, kinship care and children likely to have been conceived as a result of rape or a coercive or controlling relationship.

CPAG considers that the 2 child limit unlawfully discriminates against a number of different groups including, but not limited to, children, children with multiple siblings, large families and those with a religious or moral objection to the use of birth control. Further, the principal policy justification for the limit is logically flawed. In its impact assessment, DWP referred to the 2 child limit as ‘ensur[ing] that the benefits system is fair to those who pay for it, as well as those who benefit from it, ensuring those on benefits face the same financial choices around the number of children they can afford as those supporting themselves through work.’ However, 70% of those claiming tax credits are already working severely undermining such a fairness objective.

It is estimated that more than 250 000 children will be pushed into poverty as a result of this measure by the end of the decade, representing a 10% increase in child poverty. A similar number of children already living in poverty will fall deeper into poverty. Given such a severe impact on child poverty, 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. In these circumstances, the discriminatory treatment cannot be justified.

The appeal that will be brought before the Supreme Court, if permission is granted, will be on behalf of two lone mothers and their eight children.  Each mother already had more than one child born before 6 April 2017 and gave birth to an 'additional' child after that date.  (At High Court stage, there was also a household who were caring for a child under a child arrangement order. They would have been exempt from the policy but for the fact that the looked after child was taken in as the family's second child before the couple went on to have a natural child of their own (the family's third child). That family are not part of appeal having been successful in their challenge to the ordering restriction).

Of the two claimant households that will be part of the Supreme Court case, one of the lone parents is on income support and suffers from various disabilities while the other is receiving working tax-credit.  Neither of the mothers intended to get pregnant with the ‘additional child’, indeed one of them was on the pill at the time, but equally for moral reasons neither of them was prepared to consider terminating the pregnancy.