Human rights aren't conditional

Published on: 
10 December 2019
Written by: 

Lynsey Dalton

Trainee solicitor

Human Rights Day is an opportunity to reflect on our rights and what they mean to us. At CPAG we are particularly concerned with rights in the context of the changing benefits system, and ensuring that human rights are upheld when such drastic reforms are introduced.

Our Secure Futures project includes, as a core principle, having a social security system that is rights based, as this is essential in ensuring a basic level of subsistence for individuals and families that need support. This means that entitlement to social security support should be clearly set out in law, providing a transparent and accountable system where a person knows what support will be provided and in which circumstances. There should be a clear right of appeal that claimants can exercise if they think a decision is wrong.

There are significant issues with the current social security system and the introduction of universal credit (UC) that fail to meet these standards. A key area of concern is the use of conditionality: the concept that a person can only receive their benefits if they meet certain requirements, based on an agreement reached with their job centre work coach.

Increased conditionality moves the benefit system away from a clear, rights based approach, and towards a system involving a substantial amount of discretion. Claimants have the opportunity to discuss their conditionality with their work coach, and the intention is that they will develop the claimant commitment (a document which sets out their obligations) together. However, in practice, most claimants know little about what can and cannot be included in the claimant commitment, and many will sign the claimant commitment regardless of whether they agree with it, as it is the only way of getting their UC payment.

The Universal Credit Regulations 2013 make it clear that the claimant’s work search requirements can be amended to suit the claimant’s personal circumstances. For example, the number of hours that a claimant is expected to be working can be reduced if the claimant has a mental or physical disability. However, the regulations state that the number of hours should be reduced to “the amount that the Secretary of State considers is reasonable in light of the impairment”. This gives the Secretary of State, or those acting in her name (in this case, the work coaches), a very wide discretion in determining what will be expected of claimants.

The impact of this is that a person could have their expected hours reduced by one job centre on the basis that, while they are not deemed to have limited capacity for work, they are not capable of working a 35 hour week. However, the same person could move to a new area, deal with a different work coach, and a different job centre’s practices, and find that they are expected to work 35 hours a week. A rights-based approach, rather than an approach based on discretion or varying job centre practices, would avoid such uncertainty.

There is no right of appeal against the claimant commitment, leaving many people trying to meet impossible requirements, resulting in them juggling caring responsibilities or working more hours than they are able to, which could result in further deterioration of their health.

If a claimant fails to meet the requirements of their claimant commitment, they are at risk of being sanctioned. There is again a wide discretion in whether to refer a case for a sanction and different work coaches may have different approaches. A failure to comply with a work requirement that may have resulted in a discussion with one work coach could result in a sanction under a different work coach. While the claimant can appeal against a sanction, this is a lengthy process and, in many cases, the claimant will effectively be appealing against whether the work related requirement was reasonable in the first place. Due to the level of discretion built into the system, they will have little scope for predicting the success of such an appeal.

UC was intended to bring personalisation into the benefits system, but what this means in practice is that a person’s right to a benefit relies on a subjective assessment of the level of work that they are capable of, with very little accountability if this assessment turns out to be wrong.

Increasing conditionality, alongside other changes to the benefit system in recent years, demonstrate the diminishing role of rights in our current social security system. Today, on Human Rights Day, we must call on the next government to urgently reverse this trend, and ensure that the design and delivery of our social security system has human rights at its heart.