SC, CB and 8 children, R (on the application of) v Secretary of State for Work and Pensions & Ors [2021] UKSC 26

Appellants challenged the 'two-child limit' on child tax credit as incompatible with the European Convention on Human Rights. The Supreme Court unanimously dismissed the appeal, holding that the limitation pursued legitimate aims of reducing public expenditure and ensuring fairness, and was proportionate despite its greater impact on women and larger families.

Facts

The appellants, two mothers (SC and CB) and their children, challenged legislation limiting entitlement to the individual element of child tax credit to a maximum amount calculated as payable in respect of two children. This ‘two-child limit’ was introduced by section 13(4) of the Welfare Reform and Work Act 2016, applying to children born on or after 6 April 2017, with certain exceptions. SC had three children and CB had five children, with each having their youngest child born after the implementation date.

The limitation was introduced following the 2015 General Election as part of measures to reduce welfare expenditure by £12 billion, addressing concerns that expenditure on tax credits had more than trebled between 1999/00 and 2010/11. Parliament was provided with extensive impact assessments and evidence during the Bill’s passage, including submissions from the Child Poverty Action Group and other organisations.

Issues

The key issues were whether the two-child limit was incompatible with:

Article 8 ECHR

Whether the limitation interfered with the right to respect for private and family life of adults and children.

Article 12 ECHR

Whether the limitation interfered with the right to found a family.

Article 14 ECHR (read with Article 8 and A1P1)

Whether the limitation constituted (a) indirect discrimination against women; (b) direct or indirect discrimination against children compared with adults; or (c) discrimination against children living in households with more than two children.

Standard of Review

Whether the ‘manifestly without reasonable foundation’ test accurately reflected the Strasbourg approach to proportionality under Article 14.

Judgment

Lord Reed, delivering the unanimous judgment, dismissed the appeal on all grounds.

Article 8

The Court rejected arguments that the limitation violated Article 8. Lord Reed noted:

Article 8 does not oblige the state to alter that situation by ensuring that parents are provided with additional income for every additional child that they may choose to have.

There was no evidence that the measure was intended to discourage recipients from having children, nor that it damaged children’s integration into their families.

Article 14 – Indirect Discrimination Against Women

The Court accepted that a presumption of discrimination arose from the measure’s disproportionate impact on women. However, Lord Reed found justification:

Once it is understood that the legitimate aims of the measure could not be achieved without a disproportionate impact on women, arising from the demographic fact that they form the majority of parents bringing up children, the only remaining question which can be asked, in relation to proportionality, is whether the inevitable impact on women outweighed the importance of achieving the aims pursued.

Standard of Review

The Court significantly clarified the approach to proportionality under Article 14. Lord Reed stated:

It is therefore important to avoid a mechanical approach to these matters, based simply on the categorisation of the ground of the difference in treatment. A more flexible approach will give appropriate respect to the assessment of democratically accountable institutions, but will also take appropriate account of such other factors as may be relevant.

The Court held that whilst a wide margin of appreciation applies to welfare benefits, very weighty reasons are still required for differences in treatment on ‘suspect grounds’ such as sex.

Unincorporated International Treaties

The Court firmly rejected the proposition that domestic courts should determine compliance with unincorporated international treaties like the UNCRC:

For a United Kingdom court to determine whether this country is in breach of its obligations under an unincorporated international treaty, and to treat that determination as affecting the existence of rights and obligations under our domestic law, contradicts a fundamental principle of our constitutional law.

Implications

This judgment has significant implications for human rights challenges to welfare legislation:

First, it clarifies that the ‘manifestly without reasonable foundation’ test is not a simple binary rule but reflects a nuanced approach where the intensity of review varies according to circumstances, including whether ‘suspect grounds’ of discrimination are engaged.

Second, it reaffirms constitutional boundaries regarding unincorporated treaties, overruling obiter dicta in earlier cases suggesting courts could assess compliance with the UNCRC.

Third, it emphasises the separation of powers, holding that questions of welfare policy involving competing social interests are matters for democratic determination rather than judicial resolution.

Fourth, it provides important guidance on the use of Parliamentary materials, confirming courts may consider whether issues were raised before Parliament but must not assess the adequacy of Parliamentary debate.

Verdict: Appeal dismissed. The two-child limit on child tax credit was held to be compatible with Convention rights, pursuing legitimate aims of reducing public expenditure and ensuring fairness in the welfare system through proportionate means.

Source: SC, CB and 8 children, R (on the application of) v Secretary of State for Work and Pensions & Ors [2021] UKSC 26