SC and 3 Children v The Secretary of State for Work and Pensions

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Leggatt,Lady Justice Nicola Davies,Lord Justice Patten
Judgment Date16 April 2019
Neutral Citation[2019] EWCA Civ 615
Docket NumberCase No: C1/2018/1323
Date16 April 2019

[2019] EWCA Civ 615




OUSELEY J: [2018] EWHC 864 (ADMIN)

Royal Courts of Justice

Strand, London, WC2A 2LL


Lord Justice Patten

Lord Justice Leggatt


Lady Justice Nicola Davies

Case No: C1/2018/1323

The Queen on the application of

(1) SC and 3 Children
(2) CB and 5 Children
(1) The Secretary of State for Work and Pensions
(2) The Lords Commissioners of HM Treasury
(3) The Commissioners for HM Revenue and Customs


Equality and Human Rights Commission Intervention

Richard Drabble QC and Tom Royston (instructed by the Child Poverty Action Group) for the Appellants

James Eadie QC and Galina Ward (instructed by the Government Legal Department) for the Respondents

Helen Mountfield QC and Raj Desai (instructed by the Equality and Human Rights Commission) for the Intervener

Hearing dates: 19 and 20 December 2018

Approved Judgment

Lord Justice Leggatt



The Welfare Reform and Work Act 2016, among other changes to the law, 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.


In this action the claimants, who are members of families affected by this two child limit, seek a declaration under section 4 of the Human Rights Act 1998 that the primary legislation which introduced the measure is incompatible with rights guaranteed by the European Convention on Human Rights (the “Convention”). More particularly, they claim that the relevant legislative provisions are incompatible with: (1) their rights under article 8 of the Convention to respect for private and family life and under article 12 to marry and to found a family; and/or (2) article 14, which prohibits discrimination in the enjoyment of Convention rights. The claimants' case in relation to article 14 is supported by the Equality and Human Rights Commission (the “Commission”), which appears as an intervener.


The judge, Ouseley J, dismissed the claims for reasons given in a judgment dated 20 April 2018: see [2018] EWHC 864 (Admin); [2018] 1 WLR 5425. He refused an application under section 12 of the Administration of Justice Act 1969 for a ‘leapfrog’ certificate to enable an appeal to proceed directly to the Supreme Court, but granted the claimants permission to appeal to this court.


In this judgment I will first outline the relevant background – by describing the system of child tax credit, the legislation which introduced the two child limit, the policy reasons given for introducing the measure and the facts of the two claims which are the subject of this appeal – before considering the grounds on which the claimants contend that the legislation is incompatible with their Convention rights.

Child tax credit


Although the claim applies to universal credit as well as child tax credit, it is sufficient to focus – as the parties and the judge have done – on child tax credit, as it is common ground that the relevant considerations are the same in each case and that, as Ouseley J put it, what goes for one, goes for the other.


Child tax credit, along with working tax credit, was introduced by the Tax Credits Act 2002. It replaced the financial support for families with children previously available through tax relief and separately through social security benefits. As explained by Baroness Hale of Richmond in Humphreys v Revenue and Customs Commissioners [2012] UKSC 18; [2012] 1 WLR 1545, para 4:

“Previously, people in work (or otherwise liable to pay income tax) might claim the children's tax credit to set off against their income. This was administered by tax authorities. People out of work (or otherwise claiming means-tested benefits) might claim additions to their income support or income-based jobseeker's allowance to meet their children's needs. This was administered by the benefits authorities. Under the new system, a single tax credit is payable in respect of each child, irrespective of whether the claimant is in or out of work, and is administered by Her Majesty's Revenue and Customs. Child tax credit is like income support and jobseeker's allowance, in that it is a benefit rather than a disregard and it is means-tested, so that the higher one's income the less the benefit, until eventually it tapers out altogether. But in several other respects … it is like a tax allowance.”


To be eligible for child tax credit, a person or couple must be responsible for one or more children or “qualifying young persons”. The latter category comprises young persons aged 16 to 19 who are in “advanced education” or “approved training”. Like the parties and the judge, I will for simplicity use the terms “child” and “children” in this judgment to include qualifying young persons as well as persons aged under 16 who are children as defined in the legislation.


Child tax credit has three elements: a single “family” element which does not depend upon family size; an “individual” element, originally payable in respect of each child for whom the person claiming the benefit is responsible; and a “disability” element, payable in respect of any disabled child. The maximum amount of the family element is currently £545 a year, and the maximum amount of the individual element is currently £2,780 a year. A lone parent or couple with no income from work or whose income is below a threshold level (currently £16,105 a year) is entitled to the maximum amount of child tax credit. If the lone parent or couple is earning income above that level, the amount of their child tax credit reduces by a proportion (currently 41%) of their income in excess of the threshold. Accordingly, the level of income at which child tax credit ceases to be payable depends upon the maximum amount of child tax credit which the individual or couple would be entitled to claim. The calculation is further complicated by the fact that parents who are working may also qualify for working tax credit (which is itself made up of a variety of elements) and the tapering which occurs when income rises reduces working tax credit first and then child tax credit.

The relevant legislative provisions


The two child limit on child tax credit was introduced by section 13 of the 2016 Act. This provision amended section 9(2)(a) of the 2002 Act so as to abolish the family element of child tax credit for claimants who were not already entitled to it before 6 April 2017 and to limit the individual element by inserting into section 9 of the 2002 Act new subsections (3A) and (3B) as follows:

“(3A) Subsection (3B) applies in the case of a person or persons entitled to child tax credit where the person is, or either or both of them is or are, responsible for a child or qualifying young person born on or after 6 April 2017.

(3B) The prescribed manner of determination in relation to the person or persons must not include an individual element of child tax credit in respect of the child or qualifying young person unless –

(a) he is (or they are) claiming the individual element of child tax credit for no more than one other child or qualifying young person, or

(b) a prescribed exception applies.”


The effect of these provisions is that, subject to prescribed exceptions, no individual element of child tax credit is payable in respect of any child born on or after 6 April 2017 who is the third or subsequent child for whom the claimant is responsible. (The “disability” element, payable in respect of any disabled child, is unaffected.)


The prescribed exceptions are contained in the Child Tax Credit (Amendment) Regulations 2017/387. These allow a person (or couple) to claim an additional individual element of child tax credit for a third or subsequent child for whom they are responsible in the following cases:

(i) Multiple births (apart from one child in that birth) – regulation 10;

(ii) Adoption (where the adopted child was, or would otherwise be, in local authority care) – regulation 11;

(iii) Non-parental caring arrangements (where the claimant is a friend or family carer responsible for a child or where a child is born to a child aged under 16 for whom the claimant is responsible) – regulation 12; and

(iv) Non-consensual conception (including where the child was conceived in the context of a controlling or coercive relationship) – regulation 13.


In these proceedings the defendants (whom I will refer to as “the government”) have emphasised that other child-related benefits to which people with more than two children may be entitled are unaffected by the two child limit. Such benefits include housing benefit (in so far as a larger family may need a larger property), child benefit (a non-means tested benefit payable at a flat rate of £20.70 a week for the first child and £13.70 a week for each further child) and assistance with child care costs. For their part, the claimants emphasise that child tax credit is the only benefit which is designed to meet the subsistence needs (other than housing) of children living in families which have no income from work to support them.

The individual claimants


The individual circumstances of the first two adult claimants and appellants, referred to as SC and CB to preserve their anonymity, are summarised at paras 15 and 16 of the judgment of Ouseley J. In short, SC lives with her three youngest children, for whom she is solely responsible. She has various long-term health conditions and is not currently working. Her youngest child was born on 11 July 2017 (and therefore after the two child limit took effect). Before that, SC's income consisted of £69.05 a week in income support, £115.19 weekly in child tax credit and £34.40...

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