Two child limit challenge | CPAG

Two child limit challenge

SC and Ors v SSWP UKSC 2019/0135

Current status:  Awaiting judgment from the Supreme Court following a remote hearing across 20-22 October 2020.

Overview

This is a challenge to the two child limit, introduced by the Welfare Reform and Work Act 2016, which restricts support for children in families claiming child tax credit or universal credit to the first two children (subject to limited exceptions). The limit applies to families where the third or subsequent child is born after 5 April 2017.  The legal challenge was partially successful in the High Court but an appeal to the Court of Appeal on the lawfulness of the overall policy was unsuccessful.  An appeal to the Supreme Court was heard remotely across 20-22 October 2020 and we are awaiting the judgment. Read the High Court judgment (20 April 2018) and our statement about the judgment, as well as the Court of Appeal judgment (16 April 2019) and our press release.

Background

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 the 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.

The legal challenge has been brought by two lone mothers and their children.  Both mothers already had more than one child born before 6 April 2017 and gave birth to an 'additional' child after that date.  One of the mothers has a range of health issues, including epilepsy, the medication for which prevents her using the pill and she has had adverse reactions to using the coil.  She left school with no qualifications and previous jobs have all been low paid e.g. cleaning public toilets. She is currently on income support and child tax credits.  Her youngest child was not planned. The second mother had been in a physically and emotionally abusive relationship with the father of her four eldest children.  She eventually managed to leave that relationship and was beginning to get herself and her children back on their feet emotionally and financially when she fell pregnant despite being on the pill.  She is self-employed and in receipt of child and working tax credits.  While neither of the mothers planned to get pregnant again, having found out they were, neither was prepared to undergo an abortion for moral reasons.

At the High Court stage, there was also a household who was caring for a child under a child arrangement order. While there is an exception from the 2 child limit for kinship care children, this only applied if the kinship care child was the third or subsequent child.  The family did not qualify for this exception because the kinship care child (the husband’s grandson) was the second child in the household, taken in before the couple went on to have their own natural child, who was the third child and did not qualify for an exception.  That family are not part of the onward appeal having been successful in their challenge to the ordering restriction in the kinship care exception.

Legal issues

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; women; and those with a religious or moral objection to the use of birth control. As such, the legal challenge has been brought primarily on the basis that the 2 child limit breaches the Article 14 ECHR rights (the right not to be discriminated against) of these groups in relation to Article 8 (the right to private and family life) and Article 1, Protocol 1 (the right to peaceful enjoyment of possessions, including welfare benefits).

It has also been argued that the policy is a direct breach of the right to private and family life (Article 8) and the right to found a family (Article 12).  This is because, while there is no general right to any particular form or amount of social security, the way that the 2 child limit has been designed means that it directly interferes with very personal and intimate choices about sexual relationships, family planning, contraceptive use and abortion.

In respect of these arguments, the Court of Appeal found in its judgment of 16 April 2019 that:

  • There was no discrimination against children compared to adults because children were not in a comparable situation to adults as the Court considered that there was no equivalent to child tax credit for adults.
  • The policy did impact more on women than on men but the disadvantage to women was not particular to the 2 child limit but was the necessary consequence of any reduction in a child-related benefit.
  • Two of the stated aims of the policy (fiscal savings and incentivising work) were not capable of justifying the decision to treat some families differently by not paying benefits for all of their children.  However, the aim of fairness and placing those who receive benefits in the same position as those who support themselves entirely through work did justify such differential treatment of larger families even though the Court held that it was clearly not in the best interests of the children of such families.
  • There was no direct engagement of Articles 8 or 12 because it was not the aim of the policy to influence the intimate behaviour of low-income families.

Each of these findings was the subject of argument in the Supreme Court.

In the earlier High Court case, the original challenge was allowed in part in a decision of 20 April 2018. The Court accepted the claimant's arguments that the ordering restriction on the kinship care exception was perverse and therefore unlawful. In November 2018, the DWP/HMRC brought in amending legislation to remove the ordering restriction from both the kinship care and adopted children exceptions.  

If the appeal is successful, as the 2 child limit is set out in primary legislation, any remedy is limited to a declaration of incompatibility under s4 Human Rights Act.