R (SC) v Secretary of State for Work and Pensions

This appeal concerned the law which limits entitlement to the individual element of child tax credit so that, in general, no account is taken of third or subsequent children born on or after 6 April 2017 (section 9(3A) and (3B) Tax Credits Act 2002 as amended by section 13(4) Welfare Reform and Work Act 2016 and the Child Tax Credit (Amendment) Regulations 2017).

The Supreme Court held that the appellants’ complaints under article 8 and article 12 of the European Convention on Human Rights could not be upheld: article 8 does not impose a positive obligation to provide unlimited financial support for family life and the facts did not show that the measure interfered with the appellants’ reproductive choices or the integration of the children in their families.

The court found that the limitation gave rise to a prima facie case of indirect discrimination on the ground of sex because it affected a substantially greater number of women, and that children in households containing more than two children were a class for the purposes of article 14. However, after detailed consideration the court concluded that the differential treatment was justified: the measure pursued legitimate aims of protecting the economic well‑being of the country and ensuring fairness in the welfare system, and Parliament’s choice to limit the individual element to two children was within the margin of appreciation and not disproportionate.

The appellants, two mothers (SC and CB) and eight children, challenged the statutory limitation on the individual element of child tax credit for third and subsequent children born on or after 6 April 2017. They argued the measure was incompatible with their Convention rights as given domestic effect by the Human Rights Act 1998, relying on article 8, article 12, and article 14 taken with article 8 or with Article 1 of Protocol No 1.

Procedural history: The claim was dismissed by Ouseley J in the Administrative Court ([2018] EWHC 864 (Admin)), the Court of Appeal dismissed an appeal ([2019] EWCA Civ 615) and the matter came to the Supreme Court, which heard argument in October 2020 and delivered judgment on 9 July 2021.

Nature of the claim and relief sought: The proceedings were a challenge to the compatibility of primary legislation and subordinate regulations with Convention rights under the Human Rights Act 1998. The appellants sought a legal ruling that the limitation was incompatible with the Convention rights relied on and associated relief arising from that incompatibility. (If any additional or particular remedies were sought, they are not specified in the judgment.)

Issues for determination:

• whether the two‑child limit on the individual element of child tax credit engaged article 8 or article 12;
• whether the limit amounted to direct or indirect discrimination contrary to article 14 taken with article 8 or A1P1, in particular whether it amounted to indirect discrimination against women or discrimination against children living in households containing more than two children;
• whether, if a presumption of discrimination arose, the Government could show an objective and reasonable justification;
• preliminary constitutional questions: the domestic courts' role in assessing compliance with unincorporated international law (eg the UNCRC); the correct standard of review in welfare cases (the place of the "manifestly without reasonable foundation" formulation); and the extent to which Parliamentary materials may be used when assessing proportionality without breaching Parliamentary privilege.

Reasoning and subsidiary findings: The court rejected article 8 and article 12 arguments because article 8 does not impose a positive obligation to provide a particular level of financial support and on the facts the measure had not in practice affected the appellants' reproductive choices or the integration of the children. The court accepted that the measure raised a presumption of indirect discrimination on the ground of sex (since it affected substantially more women) and accepted that children living in households containing more than two children were a distinguishable class for article 14 purposes. The court held that domestic courts cannot decide whether the United Kingdom has breached obligations under unincorporated treaties such as the UNCRC; international instruments remain relevant as interpretive or contextual material for Convention rights but are not directly enforceable.

The court explained that the Strasbourg case law requires a nuanced approach to proportionality: while domestic courts should generally respect Parliament's policy choices in economic and social strategy unless they are "manifestly without reasonable foundation", a narrower margin of appreciation applies where the ground is one of the so‑called "suspect" grounds and other contextual factors are present. Parliamentary debates and materials can be used as background to identify the legislative objective and whether Parliament considered relevant issues, but courts must not impeach parliamentary proceedings or treat ministerial statements as the will of Parliament.

Applying these principles, the court concluded that Parliament’s objectives in pursuing fiscal savings and in addressing the automatic increase of child‑related payments as family size increased were legitimate, that the limit rationally pursued those aims, and that the disproportionate impact on women was an inevitable consequence of women being numerically over‑represented among parents bringing up children. The court was not satisfied that there were practicable alternative means that would secure the aims without the discriminatory effect. The best interests of the child were relevant but did not outweigh Parliament’s assessment. The appeal was dismissed.

Appeal dismissed. The Supreme Court held that the two‑child limit on the individual element of child tax credit did not violate the appellants’ rights under article 8 or article 12; that a presumption of indirect discrimination on the ground of sex and a difference in treatment for children in households with more than two children were correctly identified but that the Government established an objective and reasonable justification for the measure. The court also set out important principles on (1) the domestic court’s inability to adjudicate breaches of unincorporated international treaties, (2) the appropriate nuanced approach to proportionality in welfare cases (modifying but not discarding the "manifestly without reasonable foundation" concept), and (3) the limited role of Parliamentary materials in proportionality assessment without breaching Parliamentary privilege.

First instance: Administrative Court, Ouseley J, judgment dated 20 April 2018 (reported as [2018] EWHC 864 (Admin)). Appeal: Court of Appeal (Patten, Leggatt and Nicola Davies LJJ), judgment 16 April 2019 ([2019] EWCA Civ 615). Final appeal: Supreme Court, judgment [2021] UKSC 26 (appeal dismissed).