Child Tax Credit two child rule deemed compatible with ECHR


Re: SC & Ors v SSWP & Ors [2018] EWHC 864 (Admin)

This case concerns the introduction of a limit to the number of children in respect of whom child tax credit and its replacement, universal credit, is payable.  That limit, subject to a few exceptions, is two; hence the change is dubbed the “two child rule” or the “Policy”. The claimants “comprise of families in different circumstances, all in receipt of child tax credit, each with a third or subsequent child born on or after 6 Apr 2017, for whom no child tax credit is now payable.  They sought a declaration under the Human Rights Act 1998, s 4 that the Welfare Reform and Work Act 2016, ss 13 and 14 are incompatible with the ECHR, arts 8, 12 and 14.

The Court dismissed the application and held that the two child provision was compatible with the ECHR. On the issue of ECHR, art 14 where it was said that the policy indirectly discriminated against women and the discrimination against “children with multiple siblings” the Court considered that “if there were discrimination” it was “justified”. As per arguments in relation to the UK’s obligations under the United Nations Conventions on the Rights of the Child (UNCRC), the Court stressed that this was not incorporated into UK domestic law and could only be considered in relation to the ECHR, art 14 issues. Ouseley J did not approach this by considering whether any article of the UNCRC had itself been breached because it was not considered to be “a question vouchsafed to a domestic court by binding authority from the Supreme Court, and it would run counter to well established authority on the interpretation of international treaties”. There was “plenty of scope” to argue whether “the legislation is indeed in the best interests of the child. But that is not the question. The question is whether it was a primary consideration. It plainly was. I think it clear that the judgment made by Government was that the proposals were in the best interests of children generally, but even if they were not, they were justified because of the objectives which the two child provision sought to meet”.

Raj Desai and Helen Mountfield QC were involved in this case.