Supreme Court holds ‘two child limit’ on child benefit is compatible with ECHR


Re: R (on the application of SC, CB and 8 children) v Secretary of State for Work and Pensions and Ors [2021] UKSC 26

The Welfare Reform and Work Act 2016 imposed a limit of two on the number of children in respect of whom child tax credit (and its replacement, universal credit) is payable. The limit applies, with a few exceptions, to all children born after 6 April 2017, when the new law came into force.

The Appellants are members of families affected by this two child limit. SC lives with her three youngest children, for whom she is solely responsible. Her youngest child was born after the two child limit took effect. CB has five children, the youngest of whom was born just after the new legislation came into force.

The High Court dismissed the Appellants’ claims, and the Court of Appeal dismissed their appeal. The Appellants appealed to the Supreme Court, with the Equality and Human Rights Commission intervening.

HELD: Appeal unanimously dismissed.

The two child limit does not violates women’s right to respect for their private and family life, as guaranteed by article 8 of the Convention. The two child limit was not intended to affect the reproductive choices of women, and did not have such an effect on either of the adult appellants in this case. Furthermore, the two child limit does not violate article 12 of the Convention. That article protects the right to marry and the right to found a family within marriage. It does not apply in the present case.

However, the Appellants’ complaint falls within the ambit of article 8 of the Convention, given that it relates to a benefit which is designed to facilitate or contribute to family life. Their complaint also falls within the ambit of A1P1, which protects certain proprietary interests, including the adult appellants’ entitlement to child tax credit. The parties agree that, although the relevant provisions of the 2002 Act are couched in neutral language, the two child limit affects more women than men. This gives rise to a presumption of discrimination on the ground of sex, contrary to article 14 of the Convention, read with article 8 and with A1P1.

While the two child limit does not give rise to direct discrimination between children and adults, it does give rise to a relevant difference in treatment between children living in households with more than two children, as compared with children living in households with that number of children or fewer, contrary to article 14 of the Convention, read together with article 8.

However, the two child limit has an objective and reasonable justification, notwithstanding its greater impact on women. The measure pursues a legitimate aim: to protect the economic wellbeing of the country by achieving savings in public expenditure and thus contributing to reducing the fiscal deficit. It was inevitable that, if that aim was to be achieved, there would be a disproportionate impact on women, since women are disproportionately represented among parents responsible for bringing up children.

In conclusion, the difference in treatment between children living in households with more than two children, and children living in households with that number of children or fewer, is justifiable. Parliament took account of the impact of the limitation on the interests of affected children, and decided that the impact was outweighed by the reasons for introducing it. The assessment of proportionality therefore ultimately resolves itself into a question as to whether Parliament made the right choice. That is a question of intense political controversy, which cannot be answered by any process of legal reasoning. There is no basis, consistent with the separation of powers under our constitution, on which the Court could overturn Parliament’s judgment that the two child limit was an appropriate means of achieving its aims.

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