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Upper Tribunal Ruling - a Child Element is not payable for a third child conceived in a stable relationship where the two older siblings were conceived in an abusive relationship.
 
The rules on the ordering of the children were challenged, but the Upper Tribunal dismissed the appeal.
 
The claimant had three daughters – the eldest, Daughter A who was conceived in an abusive relationship and was taken into local authority care; Daughter B who was also conceived in an abusive relationship; and the youngest, Daughter C who was conceived at a time when the claimant did not think that Daughter A would ever be returned to her. 
 
The claimant’s UC included 2 Child Elements for Daughter B and Daughter C. Six months after Daughter C was born, the social services department decided to return Daughter A to live with the claimant.
 
The DWP applied the two-child limit rule – so Child Elements were then included for daughters A and B but not C. This is because the UC Regulations (Reg 24B) state that the children must be considered in chronological order from oldest to youngest and the exception where the child is born as a result of a non-consensual relationship only applies to the third or subsequent child or children.
 
The decision was upheld in the First-tier Tribunal and the claimant appealed to the Upper Tribunal.
 
Judge Wikeley dismissed the appeal, referring to the decision of the Supreme Court in R (SC, CB and 8 children) v Secretary of State for Work and Pensions [2021] UKSC 26 (SC) which ruled that the two-child policy had an objective and reasonable justification.
 
He did however comment,
'A judicial review challenge, alleging irrationality in the terms of the ordering provision, might well have a more promising prospect of success. It was self-evidently in Daughter A’s best interests to be reunited with her mother, and returning her to the family home would also entail a substantial overall saving to the public purse in the form of social services expenditure. Furthermore, the distinction made in the Universal Credit Regulations 2013 between natural and non-natural children might not withstand close scrutiny on judicial review.'
 





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