United Kingdom

A MEANINGFUL RIGHT TO SOCIAL SECURITY IN THE UNITED-KINGDOM: beyond the policies and politics of austerity?

Ellie Palmer

This article explores the parameters of a meaningful right to social security in the unwritten constitution of the United Kingdom; that has potential to be used as an instrument of social protection against the rolling back of the welfare state. It contrasts the approach by the ECtHR to the development of positive socio-economic obligations (through Articles 6, 14, Article I Protocol I (AI PI) and Article 3 of the European Convention of Human Rights (ECHR)), with that of UK courts to reviewing the fairness of executive discretion, in accordance with non-discrimination and equalities legislation; and under the ECHR and under Article 34 of the EU Fundamental Charter. It argues that, in light of the humanitarian approach of the ECtHR in MSS v Belgium and Greece,  Article 3 of the European Convention on Human Rights (ECHR) affords an avenue of protection for vulnerable individuals living at the margins of human existence for indeterminate periods; without realistic expectations of shelter, access to basic living needs, or the wherewithal to acquire them. Furthermore, it suggests that, despite entrenched resistance by UK courts to adopting a more intensive style of justificatory review of socio-economic policies, the constitutional significance of evidence-based strategic litigation to challenge the fairness and rationality of draconian austerity measures should not be entirely overlooked.

“The Welfare Reform Act 2012, the bedroom tax, restriction of entitlement to housing benefit for EEA nationals, an unfettered sanctions regime and tougher functional tests for sickness-related benefits have combined to reduce household income for the vulnerable and households reliant on benefits to supplement poverty wages. At the same time, the Legal Aid Sentencing and Punishment of Offenders Act (LASPO) 2012 has restricted both the ability to secure individual remedies and the ability of practitioners to challenge welfare legislation to secure less aggressive case-law.”   

Introduction 

“Welfare systems have the core aims of reducing destitution, providing for social contingencies and promoting greater income and consumption equality.” 
Irrespective of the model designed to deliver welfare goals,   since World War II, in Europe and beyond, it has been widely accepted that states have obligations to provide a normative and administrative legal framework, whereby basic necessities of social organization, personal welfare and development can effectively be met within the constraints of available resources.   Welfare law therefore, has not only served as a framework for the delineation of government obligations, guaranteeing access to individual entitlements when prescribed conditions are met. It also legitimates the bureaucratic decision-making tasks involved in the administration and fair distribution of socio-economic benefits.

Notably however, in the United Kingdom, since the early eighties, broader economic and social goals of collective economic progress and personal social responsibility have challenged traditional understandings about the extent of states’ responsibilities to provide a universal safety net of socio-economic provision, in accordance with individual needs.  Moreover, the contracting out of diverse areas of welfare and increased involvement of private actors in the delivery of services, have not only altered the relationships between state, providers and citizens,  but added further layers of complexity and uncertainty to the law.   Indeed, it is now recognized that the complexity of the UK welfare system has become one of its defining features; most clearly reflected in the law relating to social security - a labyrinthine web of benefit schemes and administrative processes that determine access to individual entitlements.  

Moreover, it is also notable that, in the United Kingdom, maintenance of citizens’ welfare through provision of financial support has become the largest single area of government expenditure,  ‘making it highly sensitive to national economic pressures, as well as to ideological forces directed at limiting the role of the state’.  Therefore, for the past three decades, successive government reforms of social security have been strongly influenced, if not wholly driven, by the desire to contain and where possible reduce such escalating burdens on the public purse.  Furthermore, whether by design or merely as ‘an unintended consequence of a reduction of a benefit’s sensitivity to individual circumstances’,  efforts at structural simplification have often resulted in a shift of resources from vulnerable claimant groups, to those with the potential to exercise greater political pressure.  

Against this background, it is not surprising that wholesale reform of the social security system under the Welfare Reform Act 2012, and other punitive reforms such as the bedroom tax, introduced by the Coalition government in the midst of the economic downturn, with the purported aims of structural simplification and ‘getting people back to work’, had until recently enjoyed broad cross party support.  However, from the outset, social policy experts had argued that the reforms reflected a more constrained and qualitatively different deal for citizens than envisaged by the architects of the post World War II welfare state.   Concerns had therefore been raised about the degree of conditionality inherent in the system,  the prevailing characterization of vulnerable claimants as inappropriately benefit dependent; and a lack of realistic opportunities for young people and other vulnerable individuals to engage in labour markets; especially in a recessionary climate.  Moreover, critics identified weaknesses in the design and operation of universal credit that could cause short term fluctuations in household incomes; with potential to push vulnerable claimants and their families into destitution. 

Thus, as the system of universal credit has gradually been rolled out, it is clear that the Welfare Reform Act 2012 and cost-cutting measures such as the bedroom tax, restriction of entitlement to housing benefit for EEA nationals,  an unfettered sanctions regime and tougher functional tests for sickness-related benefits, have combined to reduce income for vulnerable individuals and households reliant on benefits to supplement poverty wages. Moreover, problematically, during the same period, The Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO) has restricted both the ability to secure individual remedies and the ability of practitioners to challenge government policy in order to secure less aggressive case law.  Nevertheless, having failed to persuade the UK Coalition government of the normative importance of a rational evidence-based approach to evaluating the impact of draconian cost-cutting measures on the living standards of socially marginalized and vulnerable individuals, during their five year tenure a number of challenges have been mounted in the administrative courts. 

In the unwritten constitution of the United Kingdom, sensitive policy issues concerning fairness in the distribution and administration of public resources have long been regarded as the preserves of the elected organs of government and not of courts. Moreover, it is also clear, that in determining the scope of government welfare duties, difficulties in the interpretation of malleable concepts such as “human need” or “poverty” have been compounded by a complex legal framework of broad statutory discretions and mandatory rules, that have been criticized in equal measure, for undermining the potential to hold government to account on one hand, and the realization of social justice in individual cases on the other.  However, since statutory welfare duties have most usually been framed in terms of overriding administrative discretion, judicial review challenges against government for failure to provide have generally been regarded as non- justiciable.  It is also well established however, that since the enactment of the Human Rights Act (HRA) 1998, in the unwritten constitution of the United Kingdom, there has been increased potential for a more intensive justificatory review of the fairness of government welfare policies than traditionally provided by the principles and procedures of administrative law.  

Moreover, during the past two decades, incremental development by the ECtHR of positive socio -economic duties in the ECHR rights, has at times resonated with the notion of entitlement embedded in the European Social Charter,  the EU charter of Fundamental Rights  and in key UN and ILO instruments to which the UK is signatory.   Furthermore, the judgment of the ECtHR in the case of M.S.S. v Belgium and Greece   has recently confirmed  that even beyond the prison gates, the State’s responsibility to provide an appropriate level of financial support for vulnerable claimants may be engaged under Article 3 ECHR, when an applicant, who is wholly dependent on State support, finds herself faced with official indifference in a situation of serious deprivation or want that is incompatible with human dignity.

Against this background, this article turns to explore the parameters of a meaningful constitutional right to social security in the unwritten constitution of the United Kingdom; one that has the potential, to be used as a legal instrument of social protection against the hazards of destitution and the rolling back of the welfare state.  Therefore, without underplaying the important symbiosis between non-judicial and judicial mechanisms of accountability, or the primary importance of timely advice and assistance, without the need for recourse to adjudication,  emphasis in this chapter has been has been placed on the role of courts.
Thus, adjudication of common European wide issues such as the legality of caps on pension cuts, differences in levels of pension provision for men and women as in Stec and Others v the United Kingdom   the rights of asylum seekers, refugees and other vulnerable people to receive a level of support that is consistent with the human right to be treated with dignity will be addressed.  Furthermore, UK specific issues, including the detrimental impact of work capability assessments (WCA’s) on benefits of vulnerable claimants, and the legality of punitive policies, such as the so called ‘bedroom tax’ introduced at the height of the recession, will also be considered. Moreover, although we have focused on questions about the willingness of the ECtHR and EU institutions to promote greater income and financial equality,   and the development of common standards across the European region;  we are also mindful of the significant role that has been played by the UN treaty bodies in this regard.  

The chapter is in three main parts. Part I examines the scope of the duty to provide financial support (as opposed to benefits in kind) through the development of positive socio-economic obligations in the ECHR; focusing in particular on the approach of the ECtHR to the interpretation of Articles 6, 14, Article 1 Protocol 1, and the duty to provide financial support under Article 3 ECHR; mention having been made of Article 34 of the EU Fundamental Charter where relevant. Part II turns to evaluate the approach of administrative courts, in key challenges that, during the past decade or more, have tested the scope of government duties to provide appropriate levels of financial support consistent with the dictates of UK non-discrimination and equalities legislation on one hand, and obligations under the ECHR and the Fundamental Charter on the other. Part III focuses on developments in UK courts in key test cases concerning the detrimental impact of social security reforms and other national cost cutting measures such as the ‘bedroom tax’ on vulnerable individuals and households.

In conclusion, it is argued that the robustly humanitarian approach of the ECtHR in MSS v Belgium and Greece,  suggests that in European states, where vulnerable individuals are required to live for indeterminate periods at the margins of human existence; without expectations of shelter, access to basic living needs, or the wherewithal to acquire them, there may be an avenue of redress under Article 3 ECHR. Furthermore it is suggested, that despite well-known resistance by UK courts to adopting a more intensive style of justificatory review, the constitutional significance of evidence-based strategic litigation to challenge the fairness or rationality of specific austerity measures should not be overlooked.

Part I
Material and Financial Social Security Rights: the European Region

By contrast with other European states , substantive socio-economic rights of the kind delineated in Articles 9 -14 of the International Covenant on Economic Social and Cultural Rights) ICESCR or in Article 34 of the European Charter of Fundamental Rights do not have formal protection in the United Kingdom constitution.  Thus, despite continuing appeals by academic commentators, that, in resolving welfare needs disputes, UK courts should have regard to relevant provisions in UN treaties to which the UK is signatory, human rights advocates have primarily had recourse to the ECtHR or, where relevant to the EU Fundamental Charter of Rights, which is binding on UK courts.

Thus, for the past three decades, the ECtHR has increasingly been faced with questions from UK courts (as from other jurisdictions) concerning the boundaries of state responsibilities for meeting basic human needs, such as life-prolonging treatment for terminally-ill patients, facilities to increase the ability of people with disabilities to live a fulfilling life in the community, or for making basic provision including shelter, for those who have suffered extreme deprivations or psychological injury as a result of conduct by the state, its agents, or third parties.  Moreover, during the past decade or more, there has also been a notable rise in the number of complaints concerning the fairness of financial benefits (as opposed to benefits in kind)  of the kind protected by Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) or by Article 12 of the Revised European Social Charter (ESC) 1996  even where the vulnerability or social deprivation of individual claimants has not been at issue. The following section considers the significance of this trend; in the context of leading complaints before the ECtHR, grounded on Article 6, Article 14 and 1 Protocol 1, standing alone or in conjunction with Article 14 ECHR.  It is argued that, despite willingness by the ECtHR to interpret the ECHR in accordance with state obligations which give rise to legally enforceable possessory claims, the degree of deference afforded to national courts, militates against the success of such claims in UK courts.

Article 6 ECHR: procedural rights: access to socio-economic entitlements. The right to free legal assistance as a ‘social’ dimension of the right to a fair trial was first emphasized by the ECtHR in Airey v Ireland.  Moreover, since then, the ECtHR has continued to recognize, that specific guarantees protected by Article 6, such as the right to an oral hearing or legal aid, can be crucial in assisting disadvantaged individuals to gain access to assistance that might otherwise be denied in criminal proceedings.However, Article 6 does not apply to all proceedings – only to those concerning the ‘determination of civil rights and obligations’ or ‘a criminal charge’ – and, that in interpreting these concepts the ECtHR has given them ‘autonomous meanings’ that in many cases depart from their meanings in domestic law. Thus, gradually, the scope of the concept of ‘civil rights and obligations’ in Article 6, has been widened to encompass a right of access to courts or tribunals in public law disputes over most discretionary socio-economic benefits. For example, early in the Court’s jurisprudence, even though the right to health insurance benefits under social security schemes was treated as a public law right in the Netherlands, in Feldbrugge v. the Netherlands,  it was held to constitute a civil right within the autonomous meaning of Article 6(1).
 
Moreover, the ECtHR has held that the formal principle of equality of treatment dictates that Article 6 should apply, even in cases where a socio-economic benefit is derived from a discretionary, non-contributory form of public assistance granted unilaterally by the state and where the cost is fully borne by the public purse, without any link to a private contract of employment.  Thus, in Salesi v. Italy,  the definition of a civil right was said to cover social security or welfare benefits regarded as ‘sufficiently well defined to be analogous to rights in private law’ and to be of ‘economic significance to the claimant’.  Since the features of private law claims predominated, the right to social security benefits was a civil right within the meaning of Article 6.

However, the Court’s ‘dynamic’ albeit formalistic approach to remedying the Convention’s failure to include rights of due process in public law disputes has been problematic.  In many jurisdictions, including the United Kingdom, the requirement of a ‘full hearing’ under Article 6 disturbs existing models of administrative dispute resolution and the public private jurisdictional divide. Thus, seeking a flexible accommodation in the case of Bryan v. UK,  the ECtHR concluded that ‘full jurisdiction’ in public law disputes means jurisdiction to deal with the case as the nature of the decision requires, in accordance with the dictates of ‘democratic accountability, efficient administration and the sovereignty of Parliament’. Problematically, however, there is no clear guidance as to how the criteria enunciated in Bryan are to be applied in national jurisdictions. Thus, in the United Kingdom, following Bryan there was intense litigation concerning the limits of the right to a ‘full hearing’ in administrative disputes over discretionary socio-economic benefits relating to housing,  that culminated before the ECtHR in the case of Tfsayo v. United Kingdom. 

Tfsayo’s case concerned the application of Article 6 ECHR to a decision by a housing benefits review tribunal to refuse payment of housing benefit to a non-English-speaking asylum seeker, because she had failed to show ‘good cause’ why she had not submitted her renewal claim on time. On her complaint to Strasbourg, the ECtHR decided that the tribunal had been in breach of Article 6, irrespective of whether the claimant had had access to a traditional judicial review hearing on appeal. In Ms Tsfayo’s case, the ECtHR insisted that intricately linked to the tribunal’s manifest lack of independence was the ‘limited control’ that could be exercised by the reviewing court:  It did not have jurisdiction to rehear the evidence or to substitute its own views as to the applicant’s credibility. Nor indeed did it have the power to order the decision to be taken by a different body. This meant ‘that there was never a possibility that the central issue of the applicant’s credibility would be determined by a tribunal that was independent of one of the parties to the dispute. Accordingly, there had been a violation of Article 6(1)’.

In seeking to give effect to rights that were ‘real and not illusory’, in the circumstances of the case, the ECtHR concluded that there had been an infringement of the claimant’s right to a fair and impartial hearing. However, if the ECtHR’s approach to the interpretation of Article 6 in that case had been given general application in the United Kingdom, it would mean that disputes of fact could no longer be determined internally at first instance: the existing supervisory administrative structure is inadequate to guarantee an impartial determination of all aspects of the dispute. The decision therefore threatened to disrupt established internal administrative procedures and court hearings for the allocation of housing benefits that have long been regarded by courts in the United Kingdom as uniformly hedged by sufficient safeguards to satisfy the guarantees in Article 6.

Therefore, in the later case of Tomlinson v Birmingham City Council,  the UK Supreme Court sought to row back from the pragmatic, albeit technically generous interpretation of “civil rights” in the leading case of Runa Begum , where, although rejecting the applicant’s claim to be housed, the House of Lords had decided (in order to avoid over judicialisation of the issue) that a review of homelessness appeals by a local authority housing officer under section 193 (5) of the Housing Act 1996 constituted a determination of the applicant’s “civil rights” within the meaning of article 6(1) of the ECHR.  Thus, in Tomlinson reviewing a small number of ECtHR authorities since Runa Begum, (including Stec v UK)  the Supreme Court unanimously concluded that:

…cases where the award of services or benefits in kind is not an individual right of which the applicant can consider himself the holder, but is dependent on a series of evaluative judgments by the provider as to whether the statutory criteria are satisfied and how the need for it ought to be met…….do not give rise to “civil rights” within the autonomous meaning that is given to that expression for the purposes of …article 6(1) 

Despite its fundamental constitutional importance the right to administrative due process is one of the most amorphous and malleable rights in the unwritten constitution of the United Kingdom.  Thus, despite the rising numbers of destitute and socially disadvantaged claimants seeking access to a wholly depleted stock of public housing and other socio-economic benefits, in cases such as Tfsayo v UK,  we see very clearly the disadvantages of a jurisprudence that has not developed according to abstract principles and standards but, in accordance with a formal notion of equality and by analogy with private law dispute resolution, Here very different principles, procedures and remedial standards apply.
 
Article 14 ECHR:  equality in the fair distribution of social security benefits. By contrast with more general provisions in many written constitutions and human rights instruments, most notably the 14th amendment of the US Constitution,  it is well known that Article 14 has been restricted in two ways. First the substantive arena in which discrimination or prejudice is forbidden has been restricted to the ‘enjoyment of the rights and freedoms set forth in [the] Convention’. Secondly, the grounds upon which discrimination is forbidden have been restricted to ‘any ground such as [the specified grounds] or other status’. 

Nevertheless, the Strasbourg organs have adopted an expansive approach to the interpretation of both types of restriction,   gradually bringing allegations of discriminatory treatment in the allocation of economic social security benefits within the ambit of article 14.  Indeed, more than three decades ago in Muller v Austria   the Commission had already decided that by analogy with the proprietary right of a contributor to a private pension fund, a claim to contributory benefits in the Austrian municipal system was a ‘possession’, thereby grounding the complaint within the ambit of article 14, taken together with the right to enjoyment of property protected by Article 1 of the First Protocol (article 1P1).

However, the nexus between private economic property interests and social security entitlements  which has been developed since Muller v Austria, has been particularly problematic in countries such as the UK, where as noted by Lord Hoffman in R (on the application of Carson) v Secretary of State for Work and Pensions (Carson) contributions to the social security fund are hardly distinguishable from general taxation’.   Nevertheless, this deficit has been addressed in Strasbourg by the technical argument, that a claim to a discretionary social security benefit can have the characteristics of a possessory right, thereby falling within the ambit of article 1 Protocol 1, without entitling the claimant to ‘anything in particular’.  Moreover, this artificial line of reasoning developed a new twist following the case of Koua Poirrez v France  where paradoxically the ECtHR emphasised disparities between contributory and non- contributory benefits, as justification for further expanding the ambit of Article 14 in the socio economic sphere.  Therefore, against this background, it is not surprising that in the United Kingdom, following the HRA, article 14 taken together with article 1P1, was relied on by claimants to challenge the substantive fairness of government policies concerning the distribution of different types of social security payments.

In Carson   the UK House of Lords heard two conjoined discrimination cases of which the first, Carson’s case, concerned alleged discrimination in the level of state retirement pension paid to some UK citizens living abroad, by contrast with those living in the UK and elsewhere. The complainant argued that government policy of refusing to allow a British pensioner, (resident in South Africa at the time of her retirement with a full record of social security payments) the annual cost of living increase available to UK pensioners and expatriates in countries with relevant treaty arrangements, constituted a breach of article 14, taken together with article 1P1.  Therefore, the applicant questioned whether the payment of different rates to some pensioners could be justified as a proportionate response to the requirement that states must balance the rights of individual claimants against those of other claimants in analogous situations under article 14, in order to afford consistency of treatment. Moreover, raising similar article 14 issues, albeit in a very different welfare context, the twenty five year old applicant in Reynolds  questioned, whether a lower rate of contributions-based job-seekers allowance paid to a claimant less than 25 years old, as a result of which she suffered financial hardship, constituted a breach of article 14 taken together with article 1P1. 

Before the House of Lords, it had been common ground that the pension and benefit entitlements of the respective claimants were possessions within the meaning of article 1P1.  Further, in Carson’s case, consistent with Kjeldsen v Denmark  it was agreed that foreign residence was a personal characteristic which fell within the scope of the ECHR rights, so that article 14 was engaged. Thus, the question to be addressed was whether Social Security Benefits Uprating Regulations 2001 were ultra vires in so far as they interfered with her right not to be discriminated against in the enjoyment of her possessions, in accordance with article 14 taken together with A1P1. In Reynolds case, the substantive question was whether payment to the applicant of lower rates than paid to a person aged 25 or more, in accordance with Regulation 17(1) and Schedule 2 of the Income Support (General) Regulations 1987, violated her rights under articles 14 and article 1P1.

The majority in the House of Lords rejected both contentions, holding that social security benefits were part of an interlocking system of domestic social welfare according to which a decision to pay different rates to persons living abroad was rationally justifiable, as indeed was the decision to enter into reciprocal treaties with some countries, without having to pay the same rates to all expatriates. Further, in the case of Reynolds it was held, that to limit the payment of jobseekers allowance according to the prescribed age was also justifiable, since it was within the bounds of rationality to conclude that persons under 25 could, as a group, be regarded as having lower earnings and lower living costs.  Moreover, in light of the very wide interpretation given by the ECtHR to Article 14, it was considered necessary to distinguish between those grounds of discrimination which appeared to offend against notions of respect due to the individual (race colour etc) and those which merely required some rational justification. Furthermore it was argued that, despite the treatment by the ECtHR in Stec v UK of all manner of social security benefits as possessory entitlements, the scope of the duty to provide was ‘national in character, by contrast with obligations recognized, ‘in treaties such as the ILO Social Security (Minimum Standards) Convention 1952 (article 69) and the European Code of Social Security 1964.’  Thus, although agreeing that the words ‘insurance’ and ‘contributions’ deceptively conjure up notions of a private pension scheme, the majority was clear that in the UK, ‘from the point of view of the citizens who contribute, national insurance contributions are little different from general taxation which disappears into the communal pot of the consolidated fund’. 

In short, Ms Carson’s argument that she had been discriminated against by comparison with other UK pensioners, failed to take account of the broad interlocking nature of the UK social security system: National Insurance contributions provide only part ‘of the revenue which pays for all social security benefits and the National Health Service (the rest comes from ordinary taxation)’.  Crucially, none of these interlocking features were applicable to non-residents such as Ms Carson: ‘on the contrary, her pension would go to reduce the social security benefits (if any) to which she is entitled in her new country’. 
Following the decision by the House of Lords, before the ECtHR, thirteen British nationals complained under Articles 8 taken in conjunction with Article 14 of the Convention and under Article 1 of Protocol No. 1 taken alone and in conjunction with Article 14, about the refusal of the United Kingdom authorities to uprate their pensions in line with inflation.   However, setting aside the issues raised under Article 14 taken in conjunction with Article 8, (in agreement with the UK House of Lords) the Grand Chamber concluded as follows: (i) it did not suffice for the applicants to have paid National Insurance contributions in the United Kingdom to place them in a relevantly similar position to all other pensioners, regardless of their country of residence; (ii) unlike private pension schemes, National Insurance contributions had no exclusive link to retirement pensions and formed a part of the revenue which paid for a whole range of social security benefits, including incapacity benefits, maternity allowances, widow’s benefits, bereavement benefits and the National Health Service; (iii) the pension system was primarily designed to serve the needs of and ensure certain minimum standards for those resident in the United Kingdom.  

Nor were applicants in a relevantly similar position to pensioners living in countries with which the United Kingdom had concluded a beneficial bilateral agreement providing for up-rating. States clearly had a right under international law to conclude bilateral social security treaties and indeed this was the preferred method used by the Member States of the Council of Europe to secure reciprocity of welfare benefits.

Article 1 Protocol 1 (AI PI ECHR). For a long time, social security issues hardly appeared in the case law concerning A1 P1, since, in general a successful property claim should be ‘sufficiently established’ as well as ‘adequately definable’. According to the ECtHR’s case law, only those social security systems that created definable individual shares in specific funds, often by payment of directly related contributions could be viewed as property-creating systems. It therefore followed that only claims to benefits derived from such schemes could have the status of ‘possessions’ according to the meaning of ECHR jurisprudence. However, in many collective social security systems based on the principle of solidarity, benefits can rarely be linked to contributions that can be individualised in any way, and for that reason the notion of a definable proprietary interest has generally been rejected.  Nevertheless, from the time of the admissibility decision in Stec and others v the United Kingdom to the recent case of Valkov,  the ECtHR has afforded the prima facie protection of an individualised possessory entitlement under A1P1.  Problematically however, although in the majority of cases the ECtHR has engaged in complicated comparative socio-political analysis of the nature and origins of the social security scheme in question, those issues have ultimately been dealt with in a deferential manner, that can be of little practical benefit to claimants whether they are challenging the refusal of benefits or the level of provision.

The facts of Stec were that the complainant, a UK citizen who had severely injured her back at work  was unable to continue working and was therefore awarded a reduced earnings allowance (REA). Significantly however, her income-related additional benefit was a non- contributory one; that is, it was not conditional on any direct contributions to an insurer. Furthermore, since this was a work related benefit, it fell under legislative measures that had been adopted to remove or reduce its availability to claimants who were no longer of working age at the relevant time. Thus, when Mrs Stec reached the age of 60 years, her award was replaced by a less valuable retirement allowance (RA).  However, since at that date the pensionable age in the UK was not the same for men and women, Mrs Stec would have received the more valuable REA until the age of 65 years if she had been a man. Thus, before the ECtHR Mrs Stec argued that UK government policy breached the non-discrimination principle in Article 14 in conjunction with the right to property in A1 P1. Questions were therefore raised as to whether the non-contributory benefit to which she was entitled amounted to a possession under A1P1 and, if so, whether legislative measures adopted by the UK government amounted to discrimination under Article 14.

In the UK, as in many other European countries (particularly new accession countries) contributions to the social security fund are hardly distinguishable from general taxation. However, as noted above, that difficulty had been surmounted in Stec by means of a technical argument that, although a claim to a social security benefit is a possessory right falling within the ambit of Article 1 of Protocol 1, it differs from a purely private law right, to the extent that it does not entitle the claimant to “anything in particular”. Nevertheless on the issue of discrimination, the ECtHR held that there had been no violation of Article 14 taken together with Article 1 of Protocol 1 in respect of the cessation of Reduced Earnings Allowance at different ages for men and women. Indeed the ECtHR opined that a difference of treatment that is prima facie discrimination under Article 14 could generally be justified in cases where it is intended to correct “factual inequalities”.  It is also notable, that in A 14 social security cases which immediately followed Stec, the ECtHR appeared to have further restricted the ambit of the Stec judgment in that regard.

Minimum standards and the right to be treated with dignity: towards a humanitarian approach to destitution?
It is often conceded that due to the variation in welfare benefits systems and the political sensitivities of national socio-economic policies, the ECtHR can do little to determine the level at which benefits should be set in national jurisdictions. However, where circumstances of severe destitution sustained poverty, and other vulnerabilities result from ill-considered or ostensibly punitive government policies, as in the recent case of MSS , a more individualized approach to determining the scope of government duties to provide an appropriate level of support has been found under Article 3 ECHR.

The extent to which Article 3 ECHR requires states to provide a minimum level of welfare to the destitute had already been the subject of a complex and controversial series of cases concerning the scope of section 55(5) of the Nationality Immigration and Asylum Act (NIAA) 2002; a measure that can only properly be understood against the background of a complex web of legislative provisions that from the middle of the 1990’s had been directed at denying welfare support to asylum seekers awaiting the hearing of their claims. Thus,  in a series of cases which culminated in the House of Lords decision in R v Secretary of State for the Home Department ex parte Limbuela (hereafter Limbuela )  administrative courts had been required to determine whether the Secretary of State could refuse support to destitute asylum seekers, struggling to exist from day to day, without any certainty of food or shelter, without thereby subjecting them to inhuman and degrading treatment; and whether, if there were such circumstances, how to define them, and, ‘what procedures must be used to ensure that [the Secretary of State does not stray outside them?’

The House of Lords unanimously decided that section 55 NIAA 2002 had placed an unqualified duty on the Secretary of State to take positive measures to ensure that elementary needs of asylum seekers with no other means of support are met, since a decision to withdraw support under section 55(1) was an intentionally inflicted act for which the Secretary of State was directly responsible so as to engage article 3. Thus, as Lord Bingham put it:  ‘Where (and to the extent) that exercise of the power [under s.95] is necessary, the Secretary of State is subject to a duty, and has no choice, since it is unlawful for him under section 6 of the [HRA] to act incompatibly with a Convention right. Where (and to the extent) that exercise of the power is not necessary, the Secretary of State is subject to a statutory prohibition, and again has no choice. Thus, the Secretary of State (in practice, of course, officials acting on his behalf) must make a judgment on the situation of the individual applicant matched against what the Convention requires or proscribes, but he has in the strict sense, no discretion.’ 

Moreover, it was unanimously agreed that the obligation under article 3 in relation to such acts was absolute, so that in determining whether the treatment in a particular case had reached the minimum level of severity, the court should not apply a more exacting test where treatment or punishment which would otherwise be found to be degrading was the result of legitimate government policy.  

Thus, Lord Hope who gave the most comprehensive speech, specifically rejected the suggestion, that ‘a decision made in the exercise of lawful policy, which may expose the individual to a marked degree of suffering, not caused by violence, but by the circumstances in which he finds himself in consequence of the decision’, is lawful unless the degree of suffering which it inflicts (albeit indirectly) reaches so high a degree of severity that the court is bound to limit the state's right to implement the policy on article 3 grounds." Not only was it impossible to find any foundation for this analysis in the Strasbourg jurisprudence, it was also difficult to ‘find a sound basis for it in the language of article 3’.  

Lord Hope therefore concluded that, irrespective of whether inhuman or degrading treatment or punishment results from deliberate infliction of harm, ‘Where it results from acts or omissions for which the state is directly responsible, (emphasis added) there is no escape from the negative obligation on states to refrain from such conduct, which is absolute.’ Although there was no reference by the Grand Chamber in MSS to the landmark decision in Limbuela, that decision clearly resonates with the humanitarian thrust of the UK House of Lords decision in which some members of the House of Lords came close to identifying a core minimum standard of provision.

MSS concerned the story of an Afghan asylum seeker who fled Kabul in 2008, entered the European Union through Greece, and travelled on to Belgium where he applied for asylum. According to the Dublin rules, Greece was held to be the responsible Member State for the examination of his asylum application. The Belgian authorities therefore transferred the applicant there in June 2009, where he faced detention in insalubrious conditions before living on the streets without any material support. At issue in the judgment was the risk of violating Article 2 (the right to life) Article 3 (prohibition of inhuman or degrading treatment or punishment) and/or Article 13 (the right to an effective remedy). Thus, focusing on the conditions of the applicant’s detention, the ECtHR noted that the situation for States, which form the external borders of the European Union, is exacerbated by the transfer of asylum seekers by other Member States in the application of the Dublin Regulation.  However, given the absolute character of Article 3, the ECtHR was clear that the difficulties faced by Greece should not be taken into account when examining the applicant’s complaints under Article 3.

Following the examination of Article 3 issues relating to the applicant’s detention in the holding centre, the ECtHR then turned to consider whether a situation of extreme poverty of the severity experienced by the applicant, could raise an issue under Article 3 beyond those constraints. Thus, reiterating its opinion in Budina v Russia,   that the State’s responsibility may be engaged under Article 3 in circumstances where an applicant, who is wholly dependent on State support, finds herself faced with official indifference in a situation of serious deprivation or want, incompatible with human dignity.  Notably however, while extending the notion of degrading and inhuman treatment to the living conditions of asylum seekers, the Court stressed that this did not per se constitute an obligation to give financial assistance.    
Thus, the ECtHR took into account a wide range of factors that pointed to a breach of Article 3, including obligations on the Greek authorities as set out in the Reception Directive: the authorities’ lack of positive action to resolve the situation for the applicant; the prolonged uncertainty and the humiliating living conditions the applicant experienced (p.263). Moreover, recognizing that conditions faced by the applicant outside the detention Centre in this present case were particularly serious - the applicant had been living for months in extreme poverty and unable to cater for basic needs: food, hygiene, place to live (p.254)-  the ECtHR found a violation of Article 3. 

It is also notable that for the first time in MSS, the ECtHR identified asylum seekers themselves as a vulnerable group, in respect of whom states may have heightened positive obligations to protect (including against detention or living conditions in breach of Article 3).   Moreover, in finding a violation of Article 3 against Belgium the ECtHR found the general country situation rather than the individual circumstances of the asylum seeker, as most significant in assessing whether the Belgian authorities “knew or ought to have known” of the risk of ill-treatment in Greece. 

Part II

Equality, vulnerability and economic policy: the intensity of scrutiny in hardship cases

Contrasting approaches in hardship disputes: Reynolds and Refugee Action
Reynolds case   decided by the House of Lords in 2002 is consistent with well established resistance to the use of a justificatory human rights approach to welfare needs challenges in UK courts,  a formalistic approach which can be readily contrasted with the reasoning of Popplewell J in the Refugee Action Case considered below.
The discrimination case in Reynolds which had been brought by the Child Poverty Action Group and founded on Article 14 ECHR was one of hardship (in contrast to Carson’s case discussed above).  The facts were that the applicant was under 25 and before the birth of her son, in accordance with Regulation 17(1) and Schedule 2 to the Income Support (General) Regulations 1987, section 4 of the Jobseekers Act 1995, and regulation 79 of the Jobseeker's Allowance Regulations 1996, she had received jobseeker's allowance and income support at the weekly rate of £41.35, whereas, had she reached the age of 25, she would have received £52.20. Accordingly, she claimed (facts which the Secretary of State did not accept in their entirety) that during a period of about eight months to which her claim related, despite receiving other benefits, such as housing and council tax benefit, and also maternity benefit during the last three months of her pregnancy, she suffered severe hardship, partly because of high expenditure on gas and electricity for the flat, and partly because she had to spend £10 a week in repaying a loan which she had obtained to furnish the flat.

The argument in Reynolds’ case, that she had been the victim of a difference in treatment on grounds of her age under article 14, had been fully aired in Carson’s case. It was therefore regarded as unnecessary to cover issues of principle relating to discrimination on ‘other grounds’, or to discuss the limits of judicial intervention in social policy disputes in ‘non-suspect’ categories. Instead, Ms Reynold’s case was viewed like that of Ms Carson, as one in which it was a matter for Parliament ‘to choose’, (in this case, whether different levels of benefit should be obtained according to age, and where that age differential should be set).
Accepting that claimants on either side of the age divide were in ‘analogous’ situations, it was regarded as enough for the House of Lords to ensure that there was an objective justification for a difference in the treatment of claimants in the under 25 age group. Further, it was considered unnecessary for the House of Lords to consider whether the appropriate intensity of scrutiny had been applied in the Court of Appeal when considering the Secretary of State’s justifications for enactment of the disputed provisions.

In seeking to explain the policy choice which had been taken, an official in the DWP had enumerated some of the considerations taken into account in the decision-making process. For example, these had included the fact that 18-24 age-group in general earn less than those 25 or over, and may legitimately be regarded as having lower earnings expectations; that the majority of those 18-24 do not live independently and may legitimately be regarded as having lower living costs than the group of claimants aged 25 or over; the payment of lower rates of JSA and IS to those between 18-24 may be expected to have the effect of discouraging them from living independently, and encouraging them to live together with others, notably parents or other family members, which may be seen to have wider social benefits; Other aspects of the social security system serve to prevent any resultant hardship to the minority of persons in the position which was that of the claimant who are aged between 18-24 and do live independently and that it had been considered important from the point of view of good administration for the social security system to be based upon clear, easily applicable rules, rather than attempting to cater for the individual situation of every claimant.

Finally, counsel for the Secretary of State had elaborated on the fifth justification, by explaining that structural reforms of social security benefits in the late 1980's, had drawn a distinction between ‘householders’ and ‘non-householders’, with a view to recognising that some persons entitled to income support would have responsibilities for housing costs (such as rent and rates) which did not fall on other claimants. However, as subsequently pointed out, in the White Paper Reform of Social Security (1985)  "the increase of shared housing arrangements had made the existing rules, (with their connotation of a clearly identifiable head of the household) increasingly difficult to administer’; ultimately leading to ‘disputes which reached the social security appeal system and, in some cases, the court’.  Accordingly, it was argued by the Secretary of State that however apparently arbitrary or disadvantageous to individual claimants under 25, ‘there were sound reasons, in the interests of good administration, for providing for housing costs by other, more selective benefits (principally housing benefit and council tax benefit, both of which Ms Reynolds received.’

Moreover in considering the appropriate degree of scrutiny in article 14 disputes of this kind, Lord Walker who gave the most extensive review of the policy background and facts in Reynolds case, agreed with the view of Wilson J at first instance, who had observed: "In light of the above guidance I regard it as unnecessary, indeed inappropriate, for me to address the arguments presented by the [Secretary of State] by way of justification for the demarcation with a degree of detail into which, drawing upon a statement of an eminent statistician as well as a host of other material, Mr Gill would have me descend. Indeed, as his enthusiastic argument proceeded, I increasingly sensed the incongruity that such a debate was proceeding (emphasis added) in court instead of in Parliament. The [Secretary of State] accepts that the appropriateness of the demarcation is a subject on which views may reasonably differ but articulates five considerations of policy which allegedly justify it."

Refugee Action v Secretary of State for the Home Department, (Refugee Action)

The Charity Refugee Action was established in 1981 to facilitate the successful resettlement in the UK of refugees and asylum seekers, of whom there were estimated to be 23,000 living in the United Kingdom at the time of the judgment. Moreover, for many years, along with other groups, Refugee Action had attempted, through political channels, to persuade the Secretary of State for the Home Department (SSHD), that rates of asylum support cash payments were insufficient; by undertaking research projects, meeting with Home Office officials and participating in various Parliamentary enquiries on the issues. However, despite growing evidence of deteriorating living standards, Refugee Action had never succeeded in establishing a fruitful dialogue with the Secretary of State.

As noted above  UK asylum seekers have been excluded by section 55 NIAA from most forms of social security benefits. However, before the claim for asylum can finally be determined, they are provided with “asylum support” in accordance with a twofold statutory duty on the Secretary of State: to ensure that support consists of “adequate accommodation” and support to meet asylum seekers’ “essential living needs”.   The second category of support is provided by a combination of services such as NHS healthcare and free education for children and weekly cash payments which had been set for 2013 as follows: single adult £36; qualifying couple £72.52; lone parent aged eighteen or over £43.94; 16 and 17 year olds £39.80; children under 16, £52.96.  In addition pregnant women are granted a maternity payment (for each pregnancy) of £300 payable in the period from 8 weeks before the estimated delivery date to six weeks after the birth.   Problematically however, the rate of asylum support had not been increased since April 2011. Moreover, although when first introduced in 2000 the payments had been fixed at 70% of the rate of basic income support for adults and 100% of the level of income support for dependent children, over time, they had continued to fall in proportion to the rate of such payments.  

Therefore, in July 2013, having exhausted other channels, Refugee Action commenced judicial review proceedings against the Secretary of State’s decision not to raise the level of asylum support in June of that year, arguing in accordance with basic public law principles that the she had:
(i) acted irrationally in concluding that the level of asylum support was sufficient to meet the asylum seekers’ essential living needs, in light of her obligation to provide minimum standards of support under the EU Receptive Directive (in particular by taking account of irrelevant and erroneous considerations and in failing to have regard to relevant factors and;
(ii) breached her duty to have regard to the need to safeguard and promote  the welfare of children in coming to that decision. 
Moreover, notably, applying an unusual degree of forensic scrutiny to the financial evidence and other material, Popplewell J concluded that the Secretary of State’s decision to freeze the level of asylum support in 2013-2014 had been Wednesbury unreasonable. In setting the level of cash support, not only had she overlooked certain categories of essential living needs: basic household goods such as washing powder, cleaning products and disinfectant; nappies, formula milk and other necessities for new mothers, babies and very young children; non-prescription medication; and the opportunity to maintain interpersonal relationships and a minimum level of participation in social, cultural, and religious life. The Secretary of State had also wrongly failed to consider whether travel by public transport to attend appointments with legal advisors, (where not covered by legal aid) and telephone calls to maintain contact with families and legal representatives concerning the progress of their asylum claims were essential living needs.
Furthermore, in assessing the sums necessary to meet those needs, the Secretary of State had erred by relying on the proposition that the level of cash support for adults and children had increased by 11.5% since 2007 when in fact, for most adults it had decreased in absolute terms by 11%.  Thus, since the Secretary of State for the DWP had overlooked the extent of the erosion of rates in real terms over several years (due to inflationary price pressures) Popplewell J decided that the decision must be taken again in accordance with detailed guidance contained in the judgment.
In so far as it requires the Secretary of State to review the evidence in order to reach a decision that is ‘fair and respects the right to dignity of one of the most vulnerable groups in our society”, there can be little doubt that Refugee Action, a challenge founded on the basic principles of public law can be viewed as a landmark victory.  However, despite Popplewell J’s injunction that the SSHD must review the evidence in order to reach a decision that is ‘fair and respects the right to dignity of one of the most vulnerable groups in our society”, at the time of writing the status quo remains.

Part III
Universalism, a double edged sword? Challenging government policy in an age of austerity
 
As noted above,  whether by design, or merely as ‘an unintended consequence of a reduction of a benefit’s sensitivity to individual circumstances’ purported efforts at uniformity or structural simplification have frequently resulted in a shift of resources from vulnerable claimant groups, to those with the potential to exercise greater political pressure.  It is not therefore surprising to discover on one hand that the process of standardization which has driven the Coalition welfare reforms, has had little effect on the levels at which state pensions have been set; or on the other hand, that some of the most vulnerable disabled claimants in greatest need of support, have fallen into acute poverty since the introduction of universal credit and other standardizing measures such as the bedroom tax.

Universal Credit 
In 2010, the UK Coalition government introduced the system of universal credit, gradually to be rolled out from 2013 – 2017, with the multiple aims of ’simplifying the system of working age benefits; making work pay; increasing take-up; and reducing fraud and error’.  Building on earlier pathfinder projects and pilot schemes, the system was designed to replace six existing payments for people of working age: income support, income- based job seekers allowance, income-related employment support allowance, housing benefit, child tax credit and working tax credit. 

Nevertheless, from the outset, it had been recognised that universal credit would involve inappropriate expectations of disabled people ; and that for poorer households, including those with poor literary and numeracy skills, who are likely to budget on a weekly or fortnightly basis, monthly payments would undermine their habitual money management strategies.  Moreover as the system was gradually implemented it had become clear that it would cause a dramatic increase in hardship and poverty to vulnerable groups, (including 600,000 children entering absolute poverty. 

Specific concerns about universal credit have focused on the design and application of Work Capability Assessments (WCA);  a process masterminded by two private sector organizations engaged by the DWP to ‘design, deliver or manage the WCA process’ under contracts worth hundreds of millions.  However, far from the idealized welcoming and listening approach depicted in government policy documents , it soon became clear that the assessment process was intolerably distressing and humiliating for many of the poorest and severely disabled people in the country, often exacerbating their conditions.  Thus, in light of mounting evidence of widespread hardship, and in face of government intransigence, in the landmark case of MM and DM v Secretary of State for Work and Pensions   two disabled complainants challenged the fairness of WCA’s on grounds that they failed to comply with the fundamental principle of rationality in English administrative law.

In MM and DM, the challenge focused specifically on the problem, that the system uniformly places the burden of acquiring evidentiary reports of incapacity from medical professionals (GP’s or other clinicians) rather than on officials charged with performing assessments; with the result that some of the most vulnerable claimants (particularly those with MHP’s) have frequently been assessed without crucial evidence being heard.  Thus, with the support of a consortium of Charity Interveners, (Mind, the National Autistic Society Rethink Mental Illness and the Equality and Human Rights Commission) two anonymous MHPs in receipt of sickness benefits, challenged the lawfulness of the WCA process, on grounds that it discriminates against people with MHPs, by reason of the failure of the SSWP to make ‘reasonable adjustments’ in their cases, as required by s20 (3) the Equality Act 2010. 

Furthermore, it was argued that, the ‘reasonable adjustment’ required of the SSWP is to ensure that further medical evidence is always sought in the case of a claimant for ESA with MHP. It was also argued in the alternative, the decision maker must at least consider obtaining further medical evidence in the case of MHP claimants and that in cases of failure to do so, there should be an explanation as to why it had not been considered necessary. Thus, in light of the fact- sensitive nature of the complaint, the case was transferred from the High Court to the Upper Tribunal (Administrative Appeals Chamber (AAT) (hereafter the Tribunal) on grounds of their specialist membership and experience of the complex state benefits system.

Having reviewed the evidence, the Tribunal was clear, that the current process for assessing eligibility for ESA had placed MHP’s at a substantial disadvantage when compared with other claimants, making a formal declaration to that effect.  However, when considering the reasonableness of the complainants’ proposal, that evidence should be sought in the case of every MHP, the Tribunal concluded that such an adjustment would be too onerous; without addressing the more nuanced proposal, that in cases of failure to seek medical evidence on behalf of an individual claimant, the decision maker should give reasons for her decision.  Instead, arguing that it would be impossible to reach a final determination, or make an order on the reasonable steps that the SSWP might take ‘to avoid substantial disadvantages found to exist’ the Tribunal concluded that the SSWP should be required to undertake an investigation/assessment within a defined time, as to how the Evidence Seeking Recommendation could best be implemented.   Moreover, the Tribunal then gave a ‘remedies decision’ in which it spelt out in some detail, evidence that would be required from the SSWP and the form it should take.

In SSWP & Ors v MM & DM,  the DWP appealed against the Tribunal decision, inter alia, on a technical argument that:  ‘Although at first sight placing them at a disadvantage, adverse circumstances of the kind experienced by the claimants, did not necessarily amount to a substantive disadvantage in law’.  Furthermore, it was argued, that in giving directions to the SWPP, the Tribunal had inadvertently acted beyond its powers. Thus, on appeal from the tribunal decision, the Court of Appeal was not only required to consider the scope of the SSWP duty to make reasonable adjustments in the case of WCA’s for mental health patients, but also to consider fundamental constitutional questions as to whether the Upper Tribunal had overstepped its powers by issuing detailed directions to the SSWP. 

Although noting the respectful tenor of the report, and the tribunal’s acknowledgement that the SS is the ‘ultimate statutory decision maker under the Equality Act 2010,’   Elias J who gave the only judgment of the Court, concluded that the Tribunal had exceeded its jurisdiction by issuing such directions. Nevertheless, despite this caution, the Court of Appeal unanimously agreed with the tribunal finding, that the process used to decide whether hundreds of thousands of people are eligible for ESA, discriminates against people with mental health problems, learning disabilities and autism. Accordingly, the Court of Appeal unequivocally concluded, that the SSWP had failed to make “reasonable adjustments” that would ensure fairness in the process for all those vulnerable individuals who may lack the capacity to navigate the system themselves.

The ‘bedroom tax’

Encouraged by the victory in the Upper Tribunal decision in SWWP, (above) it was not surprising that the first test case concerning the ‘bedroom tax’ to reach the Court of Appeal was similarly mounted on behalf of two disabled clients.

Like universal credit, the so-called bedroom tax had been introduced as a purported simplification strategy in selected localities in 2008. It had been claimed, that by limiting housing benefit in the private rented sector to the median level for regional private rents in that locality (regardless of the rate that tenants had actually been paying) it would no longer be necessary to assess the amounts paid according to appropriate rents for each individual property’.   Subsequently however, in 2013, it was decided that the scheme would be rolled out nationally, at an estimated saving of £65 million per annum. Caps would now uniformly be set on the level of rent that would be covered by housing benefit, based on an amount for properties of different sizes such as £340 for any three bedroom property, irrespective of locality.    

Accordingly, from 1 April 2013, people in the social housing rented sector deemed to have 1 spare bedroom had their housing benefit reduced by 14% and people deemed to have 2, or more, spare bedrooms had their housing benefit reduced by 25%.  Moreover, this rule has uniformly been applied, even in the case of disabled applicants, whose disability means they cannot move to smaller accommodation because they need the extra space. Thus, as local authorities began to run out of emergency funds set aside to rescue those worst affected,   it was estimated that thousands of people were being driven into destitution.  Ministers had always maintained that those forced into hardship by the tax could apply to their council for ‘discretionary housing payments’ (DHPs) to help cover the rent.  However, not only was there clear evidence that many local authorities had exceeded their budget for DHPs, many weeks before the end of the financial year.  Demand for DHP’s across the country had soared by more than 300% across the country within months of the introduction of the bedroom tax.    Thus, test cases were mounted to challenge the implications of ‘universalism’ for vulnerable individuals caught up in the system.

MA and Others v Secretary of State for Work and Pensions

Before a differently constituted Court of Appeal, five disabled applicants challenged the basis on which rent is charged under ……on the following grounds: In July 2013, 10 claimants represented by 3 law firms, all argued that these new Housing Benefit rules discriminate against people with disabilities
 First, it was claimed that the reduction in eligible rent, had discriminated against disabled persons like the claimants, without justification, thereby violating their rights under article 14 ECHR when read in conjunction with A1P1. Secondly, it was argued that the Secretary of State had introduced the new measures in breach of his public sector equality duty (“PSED”) under section 149 of the Equality Act 2010 (“EA”) to have “due regard” to the need to eliminate discrimination and advance equality of opportunity between persons who are disabled and those who are not.  Thus it was common ground that housing benefit falls within the ambit of A1P1 as a “possession” and disability falls within the concluding words of article 14 as “other status”.

Nevertheless, although Lord Dyson (MR) and Longmore LJ (Ryder LJ concurring) found that the new housing benefit regulations discriminate against people with disabilities because of their needs for accommodation larger than the rules allow, the Court of Appeal had no difficulty in reaching the conclusion that the Secretary of State for Work and Pension had justified the discriminatory effect of the policy.

Thus, using a wholly formalistic approach, the Court of Appeal was satisfied that the needs of disabled people who are subject to the bedroom tax were being met by means of Discretionary Housing Payments; and that for Appellants and other disabled persons in a similar situation their needs for assistance with payment of their rent were in fact better dealt with by Discretionary Housing Payments rather than Housing Benefit.  Nevertheless, widespread incredulity at the apparent inhumanity of the Court of Appeal decision in MA and others prompted renewed disability litigation in ‘bedroom’ tax cases founded on Article 14 across the United Kingdom. Sadly however, in September 2014 with 100 disability discrimination cases waiting in the wings, an Upper Tribunal (whose decisions are binding on all British Courts at the same level or below) ruled that first tier tribunals must in future follow ‘MA and others’ in bedroom tax cases. 

Conclusion

It is true that the design of British social security provision has traditionally reflected notions of personal responsibility and behaviour;  embodied in Marshall’s idea that productive citizens would contribute to a universal safety net, which would in turn afford comprehensive rights to financial entitlements for citizens in times of need.  However, a new form of contractual conditionality had become apparent during the tenure of the New Labour governments,  based on ‘the principle that aspects of state support, usually financial or practical, are dependent on citizens meeting certain conditions which are invariably behavioural’.  Moreover, the UK Coalition government had been clear from the outset that intensified principles and mechanisms of conditionality would be central elements in its social security reforms; and that they would be applied comprehensively to groups ( including those in work and partners of claimants). It also soon became clear however, that the original principle of universality embedded in the UK welfare state would be distorted to justify the indiscriminate application of an intensified form of work-related conditionality to vulnerable groups and households, including ill or disabled people and lone parents. 

Against this background,  the aim of this chapter has been to explore the parameters of a meaningful right to social security in the unwritten constitution of the United Kingdom; one that has potential to be used as an instrument of social protection against the rolling back of the welfare state. In so doing, we have recognised the enhanced potential for judicial protection in socio-economic disputes under the HRA 1998; focusing in particular on Article 14 in conjunction with A1.P1 as in the cases of Stec v UK and Valkov v Bulgaria.  However, not only have we demonstrated the limits of the formalistic approach applied by the ECtHR in Article 14 disputes such as Carson and Reynolds. We have also suggested that, despite willingness by the ECtHR to afford the prima facie protection of an individualised possessory entitlement under A1P1, questions of entitlement have ultimately been dealt with by the ECtHR in a deferential manner, which has militated against the development of this avenue of protection by UK courts.  By contrast however, in our discussion of the cases of Limbuela and MSS v Belgium and Greece we have suggested that Article 3 affords an avenue of protection before UK court’s against government’s indifference to the socio economic needs of vulnerable individuals living at the margins of human existence for indeterminate periods; without realistic expectations of shelter, access to basic living necessities, or the wherewithal to acquire them.

Finally in our review of cases we have also recognised the indirect impact of the HRA on the willingness of domestic courts to engage in a more open textured justificatory form of review. Thus, we have suggested in our discussion of Refugee Action, that, despite entrenched resistance by UK courts to reviewing government socio-economic policy, the constitutional significance of evidence-based strategic litigation to challenge the fairness and rationality of draconian austerity measures should not be overlooked.