LAUSR

When will legislation targeting children for welfare reductions be deemed incompatible with Convention rights, and what difference does it make where there ‘was no consideration at all’ of the best interests of the child? On the basis of the Court of Appeal judgment in SC and Ors v SSWP and Ors [2019] EWCA Civ 615, the answers appear to be ‘almost never’ and ‘almost none’. The case concerns a challenge to the two-child rule, introduced in the Welfare Reform and Work Act 2016 (ss. 13–14), limiting the maximum number of children for which a family can claim subsistence benefits (child tax credit or universal credit) to two. The judgment is striking, because while disagreeing with the preceding High Court judgment by finding that the ECHR and the UNCRC apply, it still ends up in the same place because when it comes to justification, the court considers itself bound to (almost always) grant the benefit of the doubt to the government. This comment focuses on three problematic issues in the court’s approach to justification: (1) the finding that disproportionate disadvantages for women when cutting family benefits are justified because they are inevitable; (2) the finding that the rule makes the situations of those who are and are not in receipt of benefits ‘more alike’; and (3) the conclusion that the government and Parliament can ‘be taken’ to have made the best interests of the child a primary (but outweighed) consideration just by virtue of enacting legislation. Throughout the judgment, the court endorses a series of arguments that when unpicked, are little more than arguments against the existence of social security. Leggatt LJ gave the lead judgment with which the other two judges agreed. Unlike Ouseley J in the High Court, he found that the rule did fall within the ambit of Article 8 (and of Article 1, Protocol 1) for a possible Article 14 claim of discriminatory treatment, and that there were two groups who could claim to have a status under Article 14, and to have suffered a disadvantage – women, and members of a family with more than two children. He then moved on to the question of justification. He found all the government’s stated aims to be legitimate, (para. 122) and then examined whether the rule was a proportionate means to achieve those aims. The discussion about the sexually discriminatory impacts of the rule is troubling, as have been similar discussions in SG