Judge says government’s rules on exemptions ‘in conflict with the purposes of the legislation’

The government’s policy of denying financial support to carers who fall foul of the two-child limit on benefit entitlements is perverse and unlawful, a high court judge has ruled.

Growing numbers of young carers who voluntarily agree to look after younger relatives, in order to prevent them being taken into care, have been denied thousands of pounds in benefit support when they decide to have a child of their own.

Although ministers had promised that kinship carers would not be hit by the two-child limit, in practice the exemption was only available to carers who had children first and then become guardian to a third child, not the other way around.

Mr Justice Ouseley said this defeated the purpose of the exemption, which was “to encourage, or at least avoid discouraging, a family from looking after a child who would otherwise be in local authority care”.

Making the exemption available only if the cared-for child was not the first or second child was, he said, “not rationally connected with the purposes of the legislation, and indeed it is in conflict with them”.

The ruling means that all children under the guardianship of family members claiming tax credits or universal credit should not be taken into account for the purposes of the two-child limit.

A wider challenge to the lawfulness of the two-child rule, as breaching fundamental human rights to private and family life and to non-discrimination, was not accepted by the court. Campaigners intend to appeal.

A government spokesman said: “We welcome that the court agrees overall that this policy is lawful. We value and recognise the important role of people who look after children who would otherwise be in care. That’s why we will be fully reviewing the judgment and considering our next steps with regards to non-parental carers.”

Last year the Guardian highlighted the case of Alyssa Vessey, then 22, of Grimsby, who was 18 when she gave up college to formally care for her three younger siblings after the sudden death of their mother.

Vessey’s application for child tax credits and a £500 Sure Start maternity grant before the birth of her own baby was refused because of the way the two-child rule exemptions were applied by ministers at the Department for Work and Pensions.

She told the Guardian at the time: “It’s unfair. They are saying if you take on children we won’t give you any money if you have a family of your own. People who save the government thousands by caring for children should get money and support when they have a family of their own.”

Carla Clarke, solicitor for the Child Poverty Action Group, which brought the judicial review, said: “The irrationality of limiting the exception for children cared for in kinship arrangements to third or subsequent children has been raised on numerous occasions by various bodies, yet rather than accepting such legitimate criticisms and removing the restriction, it has required taking the Department for Work and Pensions to court for the unlawfulness to be properly recognised.”

Cathy Ashley, chief executive of the Family Rights Group and spokesperson for the Kinship Care Alliance, said: “This was a pernicious and unjust approach that was criticised by ourselves, some MPs and peers. The high court has rightly found it to be perverse and unlawful.”

Melanie Onn, Labour MP for Great Grimsby, said: “Kinship carers should never have been impacted by the two-child limit for child benefit. Keeping families together is so important, and those who care for children in their families – often after unexpected tragedy – give up so much to help others.

“That they were ever impacted by this limit, and that government ministers did not change this even after I alerted it to them through debates and numerous letters, shows grave misjudgment.”

The two-child limit for child tax credit and universal credit came into force a year ago. Families that claim tax credits or universal credit and have a third or subsequent child born after 6 April 2017 are no longer able to claim a child element for this child or any future children.

The policy has come under widespread criticism, including for its controversial “rape clause”, which provides an exemption from the two-child limit for women who can prove a third child was conceived as a result of rape.

This article was published by The Guardian newspaper on 20 April 2018. You can view the article on The Guardian website here.