Following unsuccessful judicial challenges on human rights grounds to the household benefit cap and to mandatory work placements, Mark Simpson of Ulster University considers whether the fundamental right to human dignity is respected by a third pillar of the UK’s ‘welfare-to-work’ regime – Jobseeker’s Allowance sanctions
Human dignity is a fundamental concept in human rights law, whose protection is arguably the objective of all human rights. Although a precise definition can be elusive, Christopher McCrudden (writing in the European Journal of International Law) proposes that dignity demands: protection from inhuman and degrading treatment, ability to meet one’s essential needs, individual autonomy and protection of cultural identity.
In conditional social protection regimes, access to an income sufficient to meet one’s essential needs and to participate in cultural activities may be restricted, claimants’ autonomy may be curbed and severe hardship may be experienced if benefits can be suspended for a prolonged period. Questions about the ability of a highly disciplinary welfare state to protect citizens’ dignity are particularly relevant in the UK, where the sanction for non-compliance with conditions associated with a benefit can be a total loss of income, after housing costs, for up to three years.
Particular concern may be raised about the ability of claimants subject to sanctions to meet their essential needs. This raises issues of compliance with article 8 of the European Convention on Human Rights, which protects children (but not adults) from destitution, and article 1 of the first protocol to the Convention (P1-1), which protects the peaceful enjoyment of possessions, including social security entitlements.
Do the children of claimants who are subject to sanctions experience destitution? A lone parent of two children whose Jobseeker’s Allowance is stopped would receive £148.40 per week in child tax credits and child benefit (2013-14 rates). By way of comparison, the High Court has held that an income of £149.96 per week would leave an asylum seeking lone parent destitute because its level did not take into account all essential needs and had not been uprated with inflation for two years. A permanent resident lone parent would have additional costs – energy and, normally, a contribution to council tax – therefore the income required to meet her essential needs would be higher still.
If a hardship payment were awarded, the lone parent would receive a total of £191.82 per week, comfortably above the destitution threshold, but, at just 41% of median income, almost £90 below the relative poverty line. While there may be compliance with article 8, whether the state respects its obligation under the Convention on the Rights of the Child to make the best interests of the child a “primary consideration” in decisions affecting his or her welfare may be more questionable.
P1-1 does not oblige the state to provide social security benefits, but when it does so citizens’ enjoyment of their benefits must not be subject to disproportionate or arbitrary interference. David Webster argues that there is a ‘grotesque disproportion’ between the severity of sanction available and the failures for which they are imposed. Submissions to the Oakley review of Jobseeker’s Allowance sanctions reinforce Webster’s point through numerous examples of sanctions imposed for falling marginally short of jobseeking obligations or missing appointments due to simple error, family emergencies, communication failure or even a clash with a job interview.
The European Committee on Social Rights has further held (in response to a complaint against deductions from family benefit in France) that sanctions may be disproportionate if unlikely to achieve their intended purpose and, separately, that children should not be exposed to ‘unfit living conditions’ because of the actions of their parents. With social researchers far from agreed that sanctions are an effective tool of welfare-to-work policy, in particular that effectiveness increases as severity increases, and children inevitably affected by significant reduction of household income, these judgments further call into question the proportionality of sanctions, although the European Social Charter (on which ECSR provides oversight) cannot be relied on in the UK courts.
Arbitrary interference with the citizen’s right under P1-1 may occur if benefits are stopped without adversarial proceedings or access to a meaningful appeal process. This is precisely what may occur with Jobseeker’s Allowance sanctions – benefit payments may be suspended while a sanction is being considered, before any decision maker has determined that a breach of conditionality actually occurred. Thereafter, Webster argues that the appeal process is out of many claimants’ reach because they may not be informed of the reason for their sanction or their right to appeal. Michael Adler suggests the recently-introduced requirement to request reconsideration of the sanction by DWP staff before an appeal may be lodged places further hurdles in claimants’ path.
Two key elements of the post-2007 ‘welfare reform’ agenda – mandatory work placements and the household benefit cap – have survived legal challenges on the basis of their human rights compliance. Question marks hang over the compatibility of the Jobseeker’s Allowance sanction regime with key human rights provisions, and therefore with the ability of the system to protect human dignity. Judicial clarification of these important matters is urgently needed.
Mark Simpson is a PhD candidate at Ulster University (School of Law). This post draws on an article published in the European Human Rights Law Review (issue 1, 2015). Research completed under the supervision of Gráinne McKeever and Ann Marie Gray and with the aid of a fieldwork grant from the Socio-Legal Studies Association.
- Read the Welfare Conditionality Project’s own submission to the ‘Benefit sanctions beyond Oakley’ select committee inquiry