Two child limit challenge
The substantive challenge to the two child policy is now being appealed to the Court of Appeal. The hearing took place on 19 and 20 December 2018. Judgment is currently awaited.
On 18 August 2017, CPAG issued a claim for judicial review in the High Court against the Secretary of State for Work and Pensions (SSWP) to challenge the two child limit, introduced by the Welfare Reform and Work Act 2016. Permission was granted on 17 October 2017 and the case was heard across two days on 6 and 7 February 2018. Judgment was given on 20 April 2018 allowing the challenge in part. The Court accepted CPAG'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. CPAG is appealing this aspect of the case to the Court of Appeal. 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 judgment and our statement about the judgment.
The appeal before the Court of Appeal is brought 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 would be exempt from the policy but for the fact that the child being looked after under a child arrangement order 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).
Grounds of challenge are:
(i) Direct breach of Article 8 (right to private and family life) and Article 12 (right to marry and found a family) given that the policy is intended to influence intimate behaviour and bring about smaller families; and
(ii) Discrimination of children in respect of Article 8 and Article 1, Protocol 1 given that, under the policy, children are uniquely no longer being treated as deserving of individual consideration for entitlement to subsistence benefits compared to adults. Alternatively, discrimination against children with multiple siblings as a child with no siblings or only one sibling has their subsistence needs met through the social security system, while a child with 2 or more siblings does not.
In the two claimant households, one of the lone parents is on income support and suffers from various disabilities while the other single mother is on working tax-credit. Neither of the lone 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.
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. In CTC, this limit only applies to a third or subsequent child born on or after 6 April 2017; in UC the limit applies from 6 April 2017 (irrespective of when the child was born) though transitional protection currently applies to third or subsequent children born before 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.
See right hand panel for a template to adapt and use in any mandatory reconsideration of a decision imposing the two child limit.