Just Fair’s newest volunteer, Robyn Taylor, will be producing case summaries of recent judgments which illustrate how economic, social and cultural rights (ESCR) are considered in UK domestic courts, with particular reference to international standards. Each summary will include a short plain English overview, followed by a more detailed case summary which draws out the main points. The first case Robyn has summarised is R (on the application of SC, CB and 8 children) (Appellants) v Secretary of State for Work and Pensions and others (Respondents) – also known as the ‘2 child limit’ case.
Plain English overview
In July 2021 the UK Supreme Court handed down its judgment in a case that focused on the ‘2 child limit’ of child tax credit. The Court decided the case based on rights contained within the European Convention on Human Rights. In particular they said that:
- The 2 child limit didn’t breach Article 8 rights (right to respect for family and private life) as it wasn’t intended to impact upon women’s reproductive choices and hadn’t impacted on the choices of the women who took the case
- The court found the 2 child limit didn’t breach Article 8 rights of the children as they didn’t agree that it has a damaging effect on the integration of third and subsequent children into their families
- Article 12 of the Convention (the right to marry and the right to found a family within marriage) did not apply in the case. This was on the basis that the Court found that neither of the women who took the case intended to marry nor to found a family within the context of marriage with the father of their youngest child.
- Finally, the court dismissed the argument that Article 14 (prohibition of discrimination) had been breached because they believed that differences in treatment between men and women, as well as between households with two children or fewer and those with more than two children, was justifiable.
The Supreme Court was asked to decide whether the ‘two child limit’, as introduced by The Welfare Reform and Work Act 2016 (“the 2016 Act”) is incompatible with the Appellants’ rights under the European Convention on Human Rights (“the Convention”). The Court dismissed the appeal and found that differences in treatment between men and women, as well as between households with two children or fewer and those with more than two children, is justifiable. It remains the position that in cases concerned with social and economic policy in the field of welfare benefits and pensions, the Court will generally respect the judgment of the executive or legislature unless it is ‘manifestly without reasonable foundation’.
The two child limit restricts payment of child tax credit (and its replacement Universal Credit) to the first two children in a family where subsequent children have been born on or after 6 April 2017, save where exceptions apply.
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 on 11 July 2017, and therefore after the two child limit took effect on 6 April 2017. ‘CB’ has five children, the youngest of whom was born on 19 April 2017. The Child Poverty Action Group represented each of the Appellants, both adults and children.
The High Court dismissed the Appellants’ claims, and the Court of Appeal dismissed their appeal. The Appellants then appealed to the Supreme Court with the Equality and Human Rights Commission intervening.
HELD: Appeal unanimously dismissed.
The Appellants argued that the two child limit was intended to discourage women in receipt of child benefit from having more than two children, and therefore violates their right to respect for their private and family life, as guaranteed by Article 8 of the Convention. This was rejected. The Court found that 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 , -. The Court also rejected the Appellants’ argument that the two child limit has a damaging effect on the integration of third and subsequent children into their families, and therefore violates their Article 8 rights.
The Court also found Article 12 of the Convention, which protects the right to marry and the right to found a family (only) within marriage, did not apply in the case. This was on the basis that the Court found that neither adult Appellants intended to marry nor to found a family within the context of marriage with the father of their youngest child. Even if they had such an intention, Article 12 would not impose a positive obligation on the state to provide the material means which would enable them to found a family within marriage -.
The Appellants’ main argument was that the two child limit breaches their rights under Article 14 of the Convention, which concerns non-discrimination, read with Article 8 and/or with Article 1 of the First Protocol (“A1P1”).
In order for an issue to arise under Article 14, the Appellants needed to establish that their complaint falls within the ambit of one or more of the rights guaranteed by the Convention, and that it concerns a difference in treatment, based on a relevant characteristic or status, between persons in analogous or relevantly similar situations -.
The Court decided that the adult Appellants satisfied each of those requirements. Their 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 CTC .
The parties agreed that, although the relevant provisions of the 2002 Act are couched in neutral language, statistically 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 -, , .
The Court proceeded on the basis that the child Appellants’ complaint also falls within the ambit of article 8 of the Convention  but not A1P1, since, unlike the adult Appellants, they are not entitled to claim CTC themselves .
The Court decided that the two child limit 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 two children or fewer -, . Although not between adults and children.
The remaining question, then, was whether the relevant differences in treatment (between men and women, and between children in families with two or fewer dependent children, and children in larger families) are justified , .
In relation to that question, the Court considered three issues of general importance which arise from the parties’ submissions . First, the Court decided that it is not appropriate for domestic courts to determine whether the UK has violated its obligations under unincorporated treaties, such as the United Nations Convention on the Rights of the Child.
Secondly, the Court clarified that a low intensity of review is generally appropriate in cases concerned with judgments of social and economic policy in the field of welfare benefits and pensions. In other words, the courts will generally accept the judgment of the legislature or the executive that a difference of treatment is appropriate in that field, unless it is ‘manifestly unreasonable’. That said, the intensity of the court’s scrutiny will be influenced by a wide range of factors, depending on the circumstances of the case. In particular, “very weighty reasons” will usually be needed to justify a difference in treatment on so-called “suspect” grounds, such as sex, gender or race -.
Thirdly, the Court considered the use which can be made of parliamentary materials when considering whether primary legislation is compatible with Convention rights. The Court made clear that the will of Parliament finds expression solely in the legislation which it enacts . Ministerial statements cannot be attributed to Parliament or treated as indicative of Parliament’s intention , . Material placed before Parliament, and statements made in the course of debates, may, however, be relevant as background information in ascertaining the objective of the legislation and its likely practical impact. Material of that kind may also be relevant in demonstrating, as a matter of fact, that issues bearing on proportionality were considered by Parliament during the course of legislative proceedings. Nevertheless, the proportionality of a statutory measure is not to be judged by the quality of the reasons advanced in support of it in the course of parliamentary debate, or by the subjective state of mind of individual ministers or other members of the legislature -. Moreover, the Court observed that in practice, it is typical for organisations bringing cases such as this to have themselves campaigned during the passage of the legislation, drawing their concerns to the attention of Parliamentarians, as CPAG had in fact done in this case . In doing so, the Court referred to Lord Bingham in R (Countryside Alliance) v Attorney General(ibid) who stated: “The democratic process is liable to be subverted if, on a question of moral and political judgment, opponents of the Act achieve through the courts what they could not achieve in Parliament.” .
Applying those principles to the facts of this case, the Court concluded that 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 -. Parliament decided that the disproportionate impact of the two child limit on women was outweighed by the importance of achieving its aims.
Finally, the Court concluded that the difference in treatment between children living in households with more than two children, and children living in households with two children or fewer, is justifiable. Parliament’s objective in ensuring that the CTC scheme is fair and reasonable, by limiting the extent to which recipients of CTC are guaranteed a rise in income if they have additional children, is legitimate, and could only be realised if a limitation on entitlement based on the number of children living in a household were introduced . 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  – . Ultimately, the Court decided that, constitutionally, there was no basis upon which it could overturn Parliament’s judgment that the two child limit was an appropriate means of achieving its aims .
 Child tax credit is a non-contributory benefit intended to provide financial support to families with children. It was introduced by the Tax Credits Act 2002 (“the 2002 Act”). In order to be entitled to child tax credit, the claimant, or either or both claimants in a couple, must be responsible for one or more children or “qualifying young persons” (section 8(1)). Children are defined as persons aged under 16, and qualifying young persons are defined as young people aged 16 to 19 who are in “advanced education” or “approved training”. For the sake of simplicity, this summary will refer to “children” as encompassing both categories.
Background image by Nebojša Cvetković