The Welfare Reform and Work Bill, if passed into law, will have a significant impact on claimants (for an overview, see Bulletin 247). Mike Spencer and Sophie Earnshaw consider whether its more controversial measures would comply with human rights law.
Welfare, work…and human rights
In this article we look at three of the most controversial proposals in the Bill:
- the reduction in the benefit cap;
- the ‘two-child limit’ for tax credits and universal credit (UC) ; and
- the increase in conditionality for carers of pre-school children.
These are likely to engage (and possibly, breach):
- Article 8 (respect for private and family life), Article 9 (freedom of conscience and religion), Article 14 (prohibition on discrimination) and Article 1 Protocol 1 (peaceful enjoyment of possessions) of the European Convention on Human Rights (ECHR); and
- Article 3 (best interests), Article 18 (parental responsibility) and Article 27 (adequate standard of living) of the UN Convention on the Rights of the Child (UNCRC).
The finalised provisions of the Bill, and the force of any challenge, remain to be seen. Note also that while the ECHR is fully incorporated into UK law through the Human Rights Act 1998, the UNCRC is not and is only relevant in certain cases when considering whether discrimination is justified.1
Reduction in the benefit cap
The Bill proposes reducing the cap in Greater London to £23,000 per year (or £15,410 for single claimants) and elsewhere to £20,000 (or £13,400 for single claimants).
Article 14 ECHR/Article 3 UNCRC breach?
In R (SG and Others) v Secretary of State for Work and Pensions  UKSC 16 (Bulletin 245, p12), a divided Supreme Court came close to finding that the current cap breaches Article 14 ECHR, which prohibits discrimination against women.2 The Court accepted that the benefit cap disproportionately affects lone parents, who are overwhelmingly women. While the majority found that this discrimination was justified given the broad margin of appreciation accorded to the government in matters of social welfare, a separate majority decided that the government had failed to comply the best interests of the child principle under Article 3 UNCRC.
Reducing the cap will intensify its effects and increase the numbers affected, while removing one of the government’s main justifications for the cap – the link with average earnings. Families will have fewer options to avoid the cap by moving to a cheaper rental area. These effects would shift the proportionality assessment and make it harder for the government to justify its discriminatory effects.
Article 8 ECHR breach?
In SG and Others, the Court of Appeal found that as the circumstances of the families in volved ‘did not approach the level of destitution’ required to breach Article 8 ECHR. However, under a reduced cap some larger families could fall well below this minimum level.
The two-child limit
This will limit entitlement to child tax credit or the child element of UC to the first two children in a household. The government has said there will be exemptions in regulations for multiple births and children born as a result of rape. Unless other more extensive exemptions are introduced, arguably the measure may impinge on women’s basic reproductive rights, family integrity and religious freedom.
Article 14 ECHR breach?
As with the benefit cap, the two-child limit will disproportionately affect women, who are most likely to be responsible for the care of children. Arguably, it also discriminates directly against larger families and religious groups who have a conscientious objection to the use of contraception or abortion, such as Orthodox Jews, Catholics or Muslims (potentially breaching Article 9 ECHR too).
Article 8 ECHR breach?
The two-child limit involves an attempt by the state to discourage poor families from having more than two children, while impinging on the ability of larger families to support their children. It is therefore likely to engage Article 8 ECHR, subject to justification.
The government has justified the two child rule as encouraging ‘families supported by benefits to consider whether they can afford to support additional children’ and because the current system is ‘not fair to families who are not eligible for state support or to the taxpayer.’ This assumes that, rape aside, women always have a free choice over whether or not to have a child and ignores, for example, women in abusive relationships who feel pressured into having a third child or women who object to the use of birth control. More fundamentally, it punishes the child. Once a third child is born, unlike with the benefit cap, parents cannot avoid the policy by moving house or moving into work and there is no mitigating fund equivalent to discretionary housing payments to cover the shortfall.
Article 3 UNCRC breach?
It is hard to see how it can be in the ‘best interests’ of third and subsequent children to grow up in a state of destitution.
Full conditionality for carers of pre-school children
This measure would subject ‘responsible carers’ who are claiming UC to full work-related conditionality (if they are caring for a child aged three or four), a work-preparation requirement (children aged two); or a work-focused interview requirement (children aged one). A ‘responsible carer’ is a claimant who is either a lone parent or a member of a couple who has been designated as responsible for a child. Full work-related conditionality will include requirements to be actively available for and seeking full time work, to conduct up to 35 hours of work search per week and to attend unpaid work placements or training, with sanctions for failing to comply.
Article 14 ECHR breach?
Women make up the overwhelming majority of responsible carers: 92 per cent of lone parents and 84 per cent of partners who stay at home to care for children are women. A responsible carer may have to choose between caring for her young child and searching for a job, attending an unpaid work placement or taking up work that conflicts with her childcare responsibilities. Whether this discriminatory effect can be justified depends on whether the childcare offer for children aged under five is adequate and accessible and whether the regulations allow responsible carers to adjust their work search and work availability requirements accordingly. Responsible carers with children under 13 can currently restrict hours of job search and availability for work during school hours.3 This protection obviously cannot apply to responsible carers with children under five, who normally are not in school.
Article 27/Article 18 UNCRC breach?
Requiring responsible carers to enter full-time work at an early stage and sanctioning them for failing to do so is likely to impact on the child’s right to an adequate standard of living under Article 27 of the UNCRC. Further, Article 18 provides that ‘parents… have the primary responsibility for the upbringing and development of the child’ and that the state must ‘render appropriate assistance to parents and legal guardians in the performance of child- rearing responsibilities’.
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