Two mothers are challenging the government in court over the Universal Credit (UC) two-child benefit policy.
That two-child cap prevents parents from claiming UC or child tax credit for a third child.
The women, who cannot be identified, had two or more children non-consensually when they were teenagers, before going on to have more children consensually in later life.
A non-consensual conception exception, sometimes referred to the rape clause, allows for additional financial support to be given to a mother of two, who then has more children as a result of rape.
However, the women say the exemption does not easily apply to them because their first two children, who were born as a result of rape, came before their third or more children who were born from consensual relations.
The Child Poverty Action Group (CPAG) is providing legal representation for the women and says the policy is “discriminatory and irrational”.
Claire Hall, the charity’s head of strategic litigation, said: “They should be able to get the exemption for the non-consensually conceived children, irrespective of at what point they are born.”
One of the women – known only as LMN – taking High Court against the Department for Work and Pensions (DWP) eventually received benefits for her third child.
“She went for years without this support, amounting to thousands of pounds which will not be backdated” CPAG said.
The second woman – known as EFG – released a statement through CPAG : “If I had been raped after my first two children were born, the exceptions would be applied”.
CPAG says that both women have missed out on thousands of pounds of support because of the current policy.
A DWP spokesman said: “We cannot comment on ongoing legal cases”.
The High Court challenge is expected to take place next year.
The two-child cap came into effect in April 2017 and has been opposed by anti-poverty campaigners.
At the time a DWP spokeswoman said: “We have always been clear this will be delivered in the most effective, compassionate way, with the right exceptions and safeguards in place.”
The spokeswoman was unable to explain how claims would be verified when made by a woman who had never accessed support or told anyone about being raped.
In 2023 Sir Keir Starmer told the BBC his Labour government would not change the two-child cap and would not commit extra money to benefits without first growing the economy.
In the past campaigners brought a legal challenge to the Supreme Court against the two-child limit, arguing that it breached parents’ and children’s human rights – that case was dismissed 2021.
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