Court of Appeal rejects appeal to 2-child benefit cap exception

03/07/26

In R (LMN) v SSWP [2026] EWCA Civ 846, handed down this week, the Court of Appeal has rejected a human rights challenge brought by two women to the operation of an exception to the 2-child benefit cap.

By the 2-child benefit policy, child tax credit or Universal Credit could not be obtained in respect of more than two children. (That policy, introduced in 2017, was scrapped in April 2026 by the current Government but still affected those who were not paid the benefit before this time).

An outright challenge was brought to the 2-child benefit policy several years ago and was ultimately rejected by the Supreme Court in R (SC) v SSWP [2021] UKSC 26. But the 2-child benefit policy always contained exceptions. One of these was where the third child in a family was conceived non-consensually. The Appellants in the present case had been the victims of serious domestic violence and had conceived multiple children non-consensually but their third children had not qualified for the exception as they had been conceived consensually. The claimants argued that this rule breached their Article 8, 14 and A1P1 ECHR rights. The High Court rejected the claim in July 2025 ([2025] EWHC 1849) and the Appellants appealed.

The Court of Appeal has now dismissed the Appellants’ appeal (President of the Family Division, Andrews LJ and Lewis LJ). It found that:

Applying the guidance of the Supreme Court in Shvidler v SSFCDA [2025] UKSC 30, this was a case where the Court of Appeal ought to carry out the proportionality assessment afresh and for itself. This was because: it was a challenge to secondary legislation and its ruling was likely to have a wide significance; and, the subject-matter of the appeal was of high importance for society given its impact on a particularly vulnerable group – i.e. women who have suffered extreme forms of domestic and sexual abuse.

The measure was justified. Those in the comparator groups relied upon (non-parental carers and adoptive parents, and those whose 3rd child was conceived non-consensually) were not in a materially analogous position to the Appellants and a wide margin of discretion ought to be conferred on Government in making these sorts of decisions.

The judgment can be found here.

News articles on the case can be found on BBC News and the Guardian.