Two child limit challenge

R (SC and Ors) v SSWP [2021] UKSC 26
This was 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 judgment given on 9 July 2021 dismissing the appeal. Complaints were filed with the European Court of Human Rights (Dec 2021) on behalf of three different families.

Judgments

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; 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 Supreme Court upheld the decision of the Court of Appeal finding in its judgment of 9/7/21 that:

  • the two- child policy does not give rise to any difference of treatment of children compared to adults.  This is because welfare benefits designed to meet an adult’s subsistence needs are payable to individual adults on an individual basis. Children, however, have no individual entitlement to welfare benefits which are instead paid to the adults who are responsible for them and neither child tax credit nor the child element of universal credit are hypothecated to an individual child/children.  Comparing child tax credit to such adult related benefits as income support or job seekers allowance, from which no adult is excluded, is therefore a false comparison.  Furthermore, the policy does not exclude any child from the scope of the support provided by child tax credit or universal credit, it simply reduces the amount that the adult responsible for them has to spend on the care of all their children.  Nor does it exclude any child from the support provided by the benefits system as a whole since adults responsible for a third or subsequent children could still qualify for child benefit for that child, housing benefit assistance, free school meals etc.
  • as far as discrimination against women is concerned, it is inevitable that more women than men are affected by the policy because more women than men are involved in bringing up children.  This inevitable impact is outweighed by the importance of the objectives of the policy (protecting the economic well-being of the country and ensuring a benefit system that is fair and reasonable).
  • as for discrimination against larger families, there is no basis on which a court could go behind the decision made by Parliament as to where ‘the balance should be struck between the interests of children and their parents in receiving support from the state, on the one hand, and the interests of the community as a whole in placing responsibility for the care of children upon their parents, on the other’.
  • there was no direct engagement of Articles 8 or 12 because it was not the aim of the policy to discourage claimants from having more than 2 children.

The matter has now been taken to the regional level with complaints filed by three different households with the European Court of Human Rights.