Two child limit challenge

Last updated: October 17, 2017

Update - 17 October 2017 - permission has been granted for CPAG to apply for judicial review of the two child limit and the case will now go forward to a full hearing.

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.

The case is brought on behalf of two lone mothers who each already have more than one child and had an 'additional' child born after 6 April 2017.

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;

(ii) Discrimination of children with multiple siblings in respect of Article 8 and Article 1, Protocol 1 given that 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.

The two current claimant households are both headed up by lone parents. One is on income support, the other on WTC. Neither of the mothers intended to get pregnant with the ‘additional child’, indeed one of them on the pill at the time, but equally for moral reasons neither of them was prepared to consider terminating the pregnancy.

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. 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 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 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.

Test case referrals

Do you have a client who has been affected by the two child limit because they have adopted children or taken on children as a kinship carer before having a child of their own?

We are looking for a client in that position for our judicial review challenge to demonstrate the arbitrary effect of the ordering which means that someone in the above position is affected by the limit but someone who has their own children and then takes on another child through adoption or kinship care is exempt.

Make a test case referral.