Challenging the ‘two-child limit’ rule
R (on the application of SC and CB and their children) v Secretary of State for Work and Pensions
The Welfare Reform and Work Act 2016 provides that child tax credit and its replacement universal credit will not be payable to any 3rd or subsequent children in a family born after 6th April 2017 (subject to some exceptions). This is known as the ‘two child rule’.
SC and CB each had a baby after 6th April 2017 and do not receive any tax credits for those children.
The Supreme Court was asked to decide whether the two child rule breached the human rights of SC and CB to family life, discriminated against them as women (because women are generally the main carers of children) and discriminated against third and subsequent children because they would not receive money to pay for their basic needs.
Almost one million children are affected by the two child rule. It is estimated that as a direct result of the rule 300,000 children will be pushed into poverty and that by 2021/2 more than half of households with three or more children will be living in poverty.
Why we were involved
We are concerned about the disproportionate impact of this policy on children and women.
In our report to the United Nations Committee on the Rights of the Child in 2020, we recommended that the UK Government scrap the two child rule.
What we did
We used our power to intervene in this case, which is when we provide specialist advice or evidence to the court. We previously intervened in lower courts and intervened again in the Supreme Court. We made submissions about how the law applies to the complex issues in the case.
The Court held that the “two child rule” was justified and dismissed the appeals.
It held that the policy raised a presumption of discrimination against women and against children in households with more than two children that the Government was required to justify. However, in this case Parliament had decided 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 on the other.
The policy was made be a democratically elected Government to fulfil an election promise, following debate in Parliament. The Court held there was no basis, consistent with the separation of powers under our constitution, on which the courts could properly overturn Parliament’s judgment that the measure was an appropriate means of achieving its aims.
Who will benefit and how
Although this case was unsuccessful, it raised important issues. We continue to have concerns about the impact of the policy on the affected women and children. The Claimants are considering taking the matter to the European Court of Human Rights.