SC & Ors v Secretary of State for Work And Pensions & Ors

Primary legislation limiting child tax credit and universal credit to two children does not, merely because it may affect family income or family-size decisions, directly engage articles 8, 9 or 12 ECHR. Nor does a prospective benefit entitlement necessarily fall within the ambit of article 1 of the First Protocol.

Article 14 requires a sufficient link with a substantive Convention right and a separately identifiable status. A status cannot be defined by the alleged discriminatory treatment itself. In the social-security context, discrimination is justified where the measure pursues legitimate economic and social objectives, is rationally connected to them, and is not manifestly without reasonable foundation.

The claimants were three families receiving, or seeking, child tax credit. Each had a third or subsequent child born on or after 6 April 2017, for whom the individual child element was generally unavailable under the two-child provision in sections 13 and 14 of the Welfare Reform and Work Act 2016.

They challenged the primary legislation under articles 8, 9, 12 and 14 ECHR, read with article 1 of the First Protocol, and relied on the United Nations Convention on the Rights of the Child. They also challenged the sequencing rule in regulation 12 of the amended child tax credit regulations, which determined whether a child in a non-parental caring arrangement counted as the third child by reference to the order in which children became part of the household.

1. Direct Convention rights. The two-child provision did not directly interfere with article 8 or article 12. Existing authority did not establish that the absence or reduction of a welfare benefit, without more, interfered with family life or the right to found a family. Article 9 likewise did not require the state to provide welfare support for the consequences of religious or ethical choices about contraception or abortion.
2. Ambit and possessions. The provision did not fall within the ambit of article 1 of the First Protocol. A prospective expectation of receiving child tax credit for a future third child was not a pecuniary right or possession. No existing entitlement had been withdrawn. The cases concerning an existing benefit being removed, or its removal having a direct and real effect on family life, did not extend to this legislation.
3. Article 14. Article 14 required a sufficient connection with a substantive Convention right and a distinct status. The proposed status of a child with multiple siblings was not a personal characteristic and, insofar as it was defined by the two-child provision, impermissibly used the alleged discrimination to define the status. The order of birth did not constitute birth discrimination within article 14.
4. Justification. Applying the manifestly without reasonable foundation standard applicable to welfare and socio-economic legislation, the objectives of reducing welfare expenditure and the deficit, changing the balance between taxpayers and benefit recipients, and encouraging work and progression were legitimate. The two-child limit was rationally connected to those objectives. A less intrusive measure would not have achieved all of them. The indirect effect on women, particularly through lone-parent households, was justified. The asserted discrimination against children with multiple siblings was also justified.
5. UNCRC. The United Nations Convention on the Rights of the Child could illuminate the interpretation of the ECHR, including article 14, but it was not incorporated into domestic law and did not impose a directly enforceable obligation to provide benefits at a particular level. The Government and Parliament had treated children’s best interests as a primary consideration. The Convention did not alter the conclusion on justification.
6. Non-parental caring exception. The sequencing rule in regulation 12 was irrational. The purpose of the exception was to encourage or avoid discouraging family care for children who might otherwise enter local-authority care. Whether a carer decided to have a child of their own before or after assuming responsibility for the cared-for child had no rational connection with that purpose and could produce perverse results. The exception itself was lawful, but its ordering provision was unlawful. The application was otherwise dismissed.

First-instance judicial review in the Administrative Court. The judgment records no prior appellate decision in this litigation.