Appeal court to hear two-child limit challenge

By agency reporter
December 19, 2018

Child Poverty Action Group (CPAG) is continuing its legal challenge to the two-child limit for universal credit and tax credit payments in the Court of Appeal on Wednesday 19 and Thursday 20 December 2018.  The case is brought on behalf of two lone mothers who each had more than one child before the policy started in April 2017 and who then gave birth to another child after that date.   The policy denies the child element of tax credits and universal credit to third and subsequent children.

Neither of the mothers in the case intended to conceive the children born after 6 April 2017 – indeed one was using the contraceptive pill - but, for moral reasons, neither was willing to consider a termination of their pregnancy. 

The child element of child tax credits and universal credit is worth up to £2,780 per year and until April 2017 was payable for all children in low-income families to protect them against poverty.  The largest group affected by the policy once fully rolled out will be working families with three children.

Child Poverty Action Group says the policy breaches the UN Convention on the Rights of the Child and unlawfully discriminates against children as, uniquely, it no longer treats them as worthy of individual consideration for entitlement to subsistence benefits.

This week’s hearing follows a High Court decision in April which allowed in part an earlier challenge to the policy brought by CPAG. In this case, the court accepted CPAG’s argument that all kinship care children should be exempt from the two child limit, rather than only third or subsequent kinship care children. The then Secretary of State for Work and Pensions subsequently removed the same ordering restriction to the exemption for adopted children.  

This week’s hearing comes ahead of an extension of the policy from February 2019 which will mean families with three or more children who make a new claim for universal credit will not receive the child element for third or subsequent children, even if those children were born before the policy came into effect in April 2017.

Child Poverty Action Group’s solicitor Carla Clarke said: “The two-child policy singles out some children and denies them support on the arbitrary basis of their birth order. But children have no control over their birth order.  Their needs are no less because of where they happen to be in a sibling line-up.  If children’s best interests are the primary consideration, this policy fails at the first hurdle.  We say it is unlawful and should be abolished on the grounds that all children have equal entitlements to subsistence support .”

Forty two per cent of children in families with three or more children are poor, compared to a 30 per cent child poverty rate overall.  Analysis by CPAG and IPPR found that once universal credit is fully rolled out, the two- child limit will result in up to 200,000 additional children in poverty. Given such a severe impact on child poverty, CPAG says, 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.

The mothers and their children bringing the case are protected by anonymity orders.

The DWP has argued that the two-child policy ensures tax credit and universal credit recipients face the same financial choices about family size as those supporting themselves solely  through work, but this argument is wholly undermined by the fact that sixty six per cent of families with three or more children claiming tax credits are already working (a proportion which is likely to be mirrored in universal credit when it is fully rolled out) and by the fact that the policy will also affect families who had more than two children at a time when they were able to live on earnings only but were subsequently obliged to claim a benefit after a redundancy, separation, illness or disability.

* Child Povery Action Group


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