Do benefit sanctions breach ECHR article 3?
.
.
.
Louise Heath
One of Public Law Project’s five strategic focus areas is benefit sanctioning. In this article, Sarah Clarke considers whether benefit sanctioning, particularly for people who are not well enough to work, could constitute inhuman or degrading treatment in breach of article 3. There is only space here to sketch out the basis of an argument and this article is not intended to give benefits advice. Readers should note there may be steps that claimants can take to mitigate their circumstances.1A fuller version of this article, exploring some of those steps, appears on PLP’s website.
In his recent book, Cruel, Inhuman or Degrading Treatment? Benefit Sanctions in the UK (Palgrave Socio-Legal Studies, 2018; series editor Dave Cowan), Michael Adler critiques the benefit sanctions regime in the UK. Adler considers the House of Lords’ decision in R (Adam, Limbuela and Tesema) v Secretary of State for the Home Department [2005] UKHL 66 (considered in more detail below) and points out that the court held ‘the failure to provide [three asylum-seekers] with support exposed them to a real risk of destitution and that this constituted a violation of article 3 of the [European Convention on Human Rights (ECHR)]’ (page 107). He continues: ‘In light of this, one might have expected that the courts would likewise have found benefit sanctions to constitute a violation of article 3 but this has not been tested in the courts’ (page 108).
How sanctioning can result in destitution and homelessness
Although the Welfare Reform Act (WRA) 2012, which provides the statutory framework for benefit sanctions in universal credit (UC), refers to a ‘Reduction of benefit’ (see heading to ss26–28), claimants subject to higher-, medium- and low-level sanctions are sanctioned at a rate equivalent to 100 per cent of their standard allowance. There is no minimum amount that claimants must be left with from their standard allowance.
There is no allowance made for the benefit cap or for other deductions already being made from the standard allowance for rent arrears or other debts. Deductions are considerably higher than under legacy benefits.2See, for instance: ‘Tony Rice, universal credit and third party deductions’, Mary-Rachel McCabe and Simon Mullings, July/August 2018 Legal Action 8. Recent statistics showed that more than half of UC claimants (53 per cent) had deductions; 13 per cent of eligible claims had deductions between 31 and 40 per cent and 0.6 per cent of eligible claims had deductions over 40 per cent.3Alok Sharma MP in answer to Written Question 218207, 20 March 2019. If a claimant with deductions is sanctioned at 100 per cent of the standard allowance, the sanction will eat into elements of UC that are intended for housing or meeting the needs of children. This could leave claimants unable to meet essential living costs for themselves and their children, including housing costs,4House of Commons Work and Pensions Committee, Benefit sanctions: nineteenth report of session 2017-19, HC 955, November 2018, pages 41–42. and at risk of destitution and homelessness.5In its response to the select committee, Benefit sanctions: government response to the committee’s nineteenth report of session 2017-19, HC 1949, 11 February 2019, the government said it will ‘explore options for capping overall deductions in relation to sanctions, in circumstances where claimants have last resort deductions’ (para 54, page 12).
Hardship payments for universal credit
Hardship payments are in principle available for those who are sanctioned under UC, at an amount based on 60 per cent of the reduction applied. In order to obtain a hardship payment, sanctioned claimants must show that they have no other source of support, for instance from friends or charities, and have made every effort not to spend money on anything that does not relate to basic and essential needs. Hardship payments are effectively a loan, and must be repaid after the sanctioning period.6The government announced in November 2018 that the recovery rate would be reduced to 30 per cent, ibid, para 91, page 19. Effectively, this more than doubles the length of time for which benefits are reduced. Claimants must make a fresh application for hardship payments in each UC assessment period (every month).
For jobseekers allowance (JSA), for which qualifying conditions were less harsh, hardship payments were awarded in over 40 per cent of sanction cases in 2015 (see DWP ad hoc statistical release, 18 November 2015; JSA and ESA hardship applications and awards: Apr 2012 to Jun 2015; Early briefing, Dr David Webster, Honorary Senior Research Fellow (Urban Studies), University of Glasgow, 18 November 2015, para 5). Dr David Webster commented: ‘If you get a hardship payment, it means that you have been completely cleaned out of resources, and exhausted all possibility of help from family and friends. The figures therefore show that the Duncan Smith regime is creating destitution on a horrifying scale’ (para 5).
In response to a recent freedom of information request from PLP, the Department for Work and Pensions (DWP) said that it did not have information to show in what percentage of UC sanction cases hardship payments are awarded. Notwithstanding hardship payments are all that stands between a sanctioned claimant and destitution, the DWP does not seem to know whether anyone is getting them.
Inhuman or degrading treatment?
The threshold for establishing a breach of article 3 in the context of state welfare support is a high one. However, in Budina v Russia App No 45603/05, 18 June 2009, the European Court of Human Rights (ECtHR) said that: ‘The court cannot exclude that state responsibility could arise for “treatment” where an applicant, in circumstances wholly dependent on state support, found herself faced with official indifference when in a situation of serious deprivation or want incompatible with human dignity’; but on the facts of that case the claimant did not meet the very high threshold for breach of article 3.
In R (‘Q’ and others) v Secretary of State for the Home Department [2003] EWCA Civ 364, the Court of Appeal held that a regime in which the state prevented asylum-seekers from working, and then prohibited the grant of support, amounted to positive action directed at asylum-seekers and not mere inaction, and was therefore ‘treatment’ for the purposes of article 3 (see para 57). In Limbuela (see above), the court considered a regime in which asylum-seekers were prohibited from working and were not entitled to state support unless they claimed asylum at the port of entry. Refusal of asylum support had the necessary consequence that some would be driven to destitution and street homelessness. In his judgment, Lord Bingham said that treatment would be ‘inhuman or degrading if, to a seriously detrimental extent, it denies the most basic needs of any human being’ (para 7).
Subsequently, in MSS v Belgium and Greece App No 30696/09, 21 January 2011, the Grand Chamber of the ECtHR held that extremely poor living conditions faced by asylum-seekers in Greece breached article 3. In considering whether the threshold for breach of article 3 had been reached, the court had regard to MSS’s ability to cater for his most basic needs, such as food, hygiene and shelter, his vulnerability to ill-treatment and the prospect of his situation improving within a reasonable time frame. The court held that treatment was ‘inhuman’ where it was ‘premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical or mental suffering’ (para 220). Treatment was ‘degrading’ where ‘it humiliates or debases an individual, showing a lack of respect for, or diminishing, his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance’ (para 220, citing Pretty v UK App No 2346/02, 29 April 2002).7See also Sufi and Elmi v UK App Nos 8319/07 and 11449/07, 28 June 2011, where deportation to Somalia was held to violate article 3 where the applicants would have no means of support and would be left destitute and living in a refugee camp where conditions were extremely poor.
Sanctions where claimants are capable of work
By contrast to the situation of the asylum-seekers considered in Limbuela and MSS, in the case of UC sanctioning, the state is not preventing claimants from working. In a case where a claimant is sanctioned and left destitute and/or homeless, but is capable of work, it could be said that they could find a job to support themselves and escape destitution. By analogy, the ECtHR held there was no breach of article 3 in a case where the claimant became street homeless ‘to the detriment of his health’ after eviction from a hostel following complaints about his behaviour, and then refused two offers of accommodation: see O’Rourke v UK App No 39022/97, 26 June 2001.
Sanctions for claimants unable to work
But what about claimants who cannot work and have no other means of support? Budina, Limbuela and MSS cited above support a view that in cases where the claimant is wholly dependent on state support, serious deprivation or want incompatible with human dignity could breach article 3, particularly where there are health consequences.
The state accepts that those recognised as having limited capability for work (LCW) for employment and support allowance (ESA) or for UC cannot work: see WRA 2007 s1(4) and WRA 2012 s37. Income-related ESA and UC are both means-tested subsistence benefits so, by definition, claimants have no other resources they can use to support themselves.
A claimant with LCW can be sanctioned if, without good cause, they fail to take part in a work-focused interview or in work-related activity. The sanction lasts indefinitely until compliance, plus a fixed period of seven, 14 or 28 days, usually at 100 per cent of their standard allowance. Claimants who move into the LCW group from the full conditionality group can be left with sanctions still running. This means that a claimant the state recognises cannot reasonably be required to work, can have their subsistence benefit reduced, sometimes to nil. In these circumstances, it is difficult to see how a claimant can be expected to find a job to support themselves and escape destitution.8A similar argument may be possible, but much more difficult, for claimants who have failed the work capability assessment, or who are waiting for a work capability assessment.
Conclusion
The application of a sanction at 100 per cent of the standard allowance of a subsistence benefit means claimants will be unable to feed themselves and meet other essential living needs including housing. They will have to choose between keeping a roof over their heads and feeding themselves and any children. There is no evidence that hardship payments are effective in preventing this. Claimants who are made homeless will be at risk of harm to their health and, if they are street homeless, ill-treatment and vulnerability to crime. While not exactly on all fours with Limbuela, the analogy is clear. As Lord Bingham observed in that case: ‘I have no doubt that the threshold may be crossed if a late applicant with no means and no alternative sources of support, unable to support himself, is, by the deliberate action of the state, denied shelter, food or the most basic necessities of life’ (para 7).
Postscript: a possible change of direction?
In its response to the Work and Pensions Select Committee report on benefit sanctions (see above), the government partially accepted the recommendation that the government immediately stop imposing conditionality and sanctions on anyone found to have LCW or who presents a valid doctor’s note and said it would ‘explore the possibility of a proof of concept9‘Proof of concept’ is not explained but it seems to mean pilot. (PoC) for a general policy’ in summer 2019 that, at the discretion of work coaches, conditionality would not be imposed on claimants before their work capability assessment and those assessed as having LCW (para 36, page 9).10By Universal Credit Regulations 2013 SI No 376 reg 99(4), claimants are exempt from work search requirements for 14 days on production of a fit note, and reg 99(5) allows the secretary of state to continue this where the claimant provides fit notes. See the ‘Chester’ example at ADM J3228. It remains to be seen if the option offered by the government is too little, too late.
 
1     A fuller version of this article, exploring some of those steps, appears on PLP’s website.  »
2     See, for instance: ‘Tony Rice, universal credit and third party deductions’, Mary-Rachel McCabe and Simon Mullings, July/August 2018 Legal Action 8.  »
3     Alok Sharma MP in answer to Written Question 218207, 20 March 2019. »
4     House of Commons Work and Pensions Committee, Benefit sanctions: nineteenth report of session 2017-19, HC 955, November 2018, pages 41–42. »
5     In its response to the select committee, Benefit sanctions: government response to the committee’s nineteenth report of session 2017-19, HC 1949, 11 February 2019, the government said it will ‘explore options for capping overall deductions in relation to sanctions, in circumstances where claimants have last resort deductions’ (para 54, page 12). »
6     The government announced in November 2018 that the recovery rate would be reduced to 30 per cent, ibid, para 91, page 19.  »
7     See also Sufi and Elmi v UK App Nos 8319/07 and 11449/07, 28 June 2011, where deportation to Somalia was held to violate article 3 where the applicants would have no means of support and would be left destitute and living in a refugee camp where conditions were extremely poor. »
8     A similar argument may be possible, but much more difficult, for claimants who have failed the work capability assessment, or who are waiting for a work capability assessment. »
9     ‘Proof of concept’ is not explained but it seems to mean pilot. »
10     By Universal Credit Regulations 2013 SI No 376 reg 99(4), claimants are exempt from work search requirements for 14 days on production of a fit note, and reg 99(5) allows the secretary of state to continue this where the claimant provides fit notes. See the ‘Chester’ example at ADM J3228. »

About the author(s)

Sarah Clarke is a solicitor at PLP.