Welfare Reform – Human Rights and the Particular Circumstances of Northern Ireland

RightsNI is delighted to welcome this guest post from Gráinne McKeever.  Gráinne is a Senior Lecturer in Law at the University of Ulster, specialising in social welfare law, looking particularly at the overlaps between criminal, social and administrative justice, underpinned by theories of citizenship and participation. She can be reached at g.mckeever@ulster.ac.uk.

While many people know little, and care less, about social security benefits, the issue of welfare reform has successfully filtered through to public consciousness. The controversy over medical assessments for Employment and Support Allowance, the impact of the ‘bedroom tax’ and the creation of a ‘benefit cap’ have been standard news features for some time. More recently, the NI Assembly’s approach to the Welfare Reform Bill has highlighted the particular issues with welfare reform in Northern Ireland, where the debate focused on whether to mirror the equivalent legislation in Britain – the Welfare Reform Act 2012  – and give full respect to the principle of parity, or whether to break parity and model welfare reform around the particular circumstances of Northern Ireland.

Although outward appearances suggested this debate was split across standard party divides, in reality there is political consensus on the core issue concerning the special circumstances of Northern Ireland. The debate has not concluded but the vote for the Bill to proceed demonstrates that parity is not just a principle but a pragmatic acknowledgement that the Northern Ireland way costs money, and where money is not freely available then choices become more limited. What remains possible, however, is the prospect of some middle ground: the room for affordable operational manoeuvrability to ensure that the worst effects of the reforms are mitigated for claimants in Northern Ireland. The decision to refer the bill to a Committee to examine its human rights and equality implications is an opportunity to consider these issues.

Northern Ireland experiences much greater degrees of poverty, social exclusion and deprivation than England, Wales and Scotland. This includes a greater number of people relying on disability benefits (see NI Assembly Research Briefing Paper, An Intro to Welfare Reform, Jan 2011), higher numbers of children living in persistent poverty (see M Monteith, K Lloyd and P McKee, Persistent Child Poverty in Northern Ireland – Key Findings, 2008, Save the Children and Ark) and a greater number of people not in paid work (Monitoring poverty and social exclusion in Northern Ireland 2012. Tom MacInnes, Hannah Aldridge, Anushree Parekh and Peter Kenway. May 2012).  The current welfare reforms are designed to reduce expenditure on social security and this will be achieved, in the main, by reducing or removing benefit entitlement from many claimants. Making choices on how public expenditure is used is clearly a function of the state, but the state also retains a duty to respect, protect and fulfil socio-economic rights. The extent to which the Welfare Reform Bill is able to achieve this will depend on some consideration being given to the particular circumstances of Northern Ireland.

The Welfare Reform Bill, like many social security Acts, covers a broad range of issues, each of which create individual controversies. The ‘highlights’  include the introduction of Universal Credit and Personal Independence Payments, the expansion of claimant responsibilities and sanctions, the abolition of the discretionary Social Fund, and the creation of a ‘benefit cap’, although the detail of what is contained in the Bill extends beyond these headline items. In principle, there is much to recommend such reforms which have the potential to simplify a hugely complex system and create positive incentives to move from benefits into work. It is difficult to know to what extent the principles will be borne out in practice, however, since the main criticism of the Welfare Reform Bill is the absence of draft Regulations on which the detail of the reforms will be built.

Universal Credit provides a good example of the need for detail to determine the extent to which the legislation is human rights compatible. As it is currently drafted, the Welfare Reform Bill creates additional conditions with which claimants must comply to remain eligible for Universal Credit, accompanied by a series of sanctions that remove a claimant’s entitlement to benefit where they have failed to meet some of these conditions. The sanctions are to be imposed where there is “no good reason” for the failure to comply with conditions and these range from a disqualification from benefits for 7 days for minor failures, to 3 years for more serious failures.

In its scrutiny of the Welfare Reform Act 2012, the Joint Committee on Human Rights (see here) raised concerns that the sanctions could lead to the destitution of claimants under Article 3 ECHR if the claimant was incapable of work. It is not possible to determine if hardship provisions would alleviate this concern given that the Regulations determining hardship criteria are not yet published, although hardship provisions are generally restricted to particular categories of claimants (such as those who are pregnant). If this remains the case for Universal Credit sanctions there will remain categories of claimants unable to rely on hardship criteria to protect themselves from destitution. The sanctions regime under the Welfare Reform Bill is considerably more punitive than the current regime, and it is not clear the extent to which this more punitive approach is proportionate to the behaviour being sanctioned. This approach raises concerns about respect for a range of human rights (see the NIHRC submission on the Bill here).

In Asmundsson v Iceland  the ECtHR held that the withdrawal of benefits was disproportionate to the legitimate state aim of reducing expenditure, although a proportionate reduction would be acceptable. The Explanatory Note to the Welfare Reform Bill 2009    accepts that reducing a benefit would count as a deprivation. Any deprivation of property – which includes social security benefits – potentially invokes the right to property in Article 1, Protocol 1 ECHR. Where the state acknowledges this deprivation it should also specifically justify this as proportionate in protecting the public interest.

The deprivation of property can also result in breaches of other human rights. The right to family life under Article 8 ECHR may be breached where sanctioned claimants are unable to support family dependents, particularly where dependents are removed from families as a result. Where a particular class of claimants is disproportionately impacted – and the risk here is greatest for lone parents and those who are sick or disabled – this may be discriminatory under Article 14 ECHR. Destitution under Article 3, the JCHR’s main concern, is likely to be difficult to demonstrate given the high level of destitution required to satisfy Article 3, but there is an argument that the state should act to avoid destitution – not just to remedy it once it has been demonstrated – and should therefore monitor and investigate all levels of destitution that sanctioned claimants may experience.

The possibility of the sanctions regime – or the Welfare Reform Bill – being rejected in its entirety by the Northern Ireland Assembly seems remote, but operational changes to the sanctions arrangements could still represent a less punitive, and potentially less discriminatory outcome for claimants in Northern Ireland. Levels of mental ill health are higher in Northern Ireland than in other parts of the UK, and those with mental health problems are disproportionately represented among claimants sanctioned within other social security benefits.  Providing specific safeguards for individuals with mental and physical health problems could help ensure that the application of the sanctions regime does not result in a breach of Article 14 ECHR, and acknowledges some of the particular circumstances of Northern Ireland.

The debate on parity limits the possibilities for welfare reform but a human rights focused middle ground could enable some reconciliation within this debate: a recognition of the special circumstances of Northern Ireland protects not just parity but fundamental human rights.