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Clauses 13 to 15: External provider social loans
425. The most likely Articles to be relevant are Articles 8 and Article 1 Protocol 1 with Article 14. Article 6 might be considered if external lenders were found to be exercising public functions. It is unlikely that human rights issues would arise though there have been complaints in the context of the social fund that it is unfair or discriminatory to confine eligibility to those on certain means-tested benefits. It has not been accepted in the few cases which have arisen that the person concerned has had a status within Article 14 of the ECHR or, even if he has, that there is unjustified discrimination. It has also been the Secretary of State’s position that the payments are non-contributory and discretionary - they are not available as of right - and the payments are loans not benefits. The same would be argued in respect of the external provider social loans.
426. The same approach would be taken in respect of Article 6. The statutory provisions on review of decisions whether to award a social fund loan and the amount would not apply to decisions by lenders under the new loan scheme. They would have a complaints procedure and it is likely that borrowers could complain to the Financial Ombudsman Service. If someone were identified as having been disadvantaged by the substitution of the new loans scheme for social fund loans the Government would say that there are good reasons for making this change; that the social fund still covers certain people under the loans or community care grant scheme; and that the Government would take action to avoid a breach of Article 3 of the ECHR.
Benefit sanctions for offenders
Clause 19: Loss of benefit provisions
427. The article of most concern is Article 6 (right to a fair trial). The Government’s view is that it is very unlikely that this policy will violate Article 6. The Government only offers people a penalty or a formal caution where there is sufficient evidence to prosecute for a benefit offence. Offenders are invited to an interview before they choose to accept the caution or penalty. Persons who accept a penalty may change their minds within 28 days. Anyone who disputes the reasons why they are being offered a penalty or caution may choose to face prosecution instead. They in effect have the same rights as those being prosecuted for a more serious benefit offence.
428. Article 3 (degrading treatment) and Article 8 (right to respect for family and private life) should not be engaged with this policy. The Government intends that the provisions set out in secondary legislation (S.I. 2001/4022) for income-based jobseeker’s allowance to be payable to vulnerable persons in hardship will apply to those who accept a penalty or formal caution or are convicted of a first benefit offence as they currently apply to those convicted for a second benefit offence under the two strikes policy.
Clause 20: Jobseeker’s allowance: sanctions for violent conduct in connection with claim
429. Article 3 (inhuman or degrading treatment) and Article 8 (right to respect for family and private life) will not be engaged as hardship payments can be made where appropriate to vulnerable claimants whose benefit is sanctioned as a result of a conviction for or acceptance of a caution for an offence involving violence. Article 6 (right to a fair trial) will be engaged because the claimant has a civil right to the payment of the benefit which may be sanctioned under the policy, but the requirements of this Article are satisfied because the claimant will have a right of appeal.
430. Article 1 Protocol 1 (protection of property) will be engaged, as both contributory and non-contributory benefits are possessions for the purposes of Article 1 Protocol 1. As a result of this clause, the claimant would be deprived of some of his or her property. However member states are granted a wide margin of appreciation with regards to measures of economic or social strategy. The imposition of sanctions of a relatively brief period is a measure within a state’s margin of appreciation and can be justified. It has a legitimate aim which is in the public interest, and is a proportionate measure.
431. Article 14 (prohibition of discrimination) may be engaged taken in conjunction with Article 1 Protocol 1. It may be possible to argue that this sanction will be applied in a discriminatory manner as it will only apply to jobseeker’s allowance claimants, and not to other benefit claimants. There are a number of differences between JSA and the other benefits, such as the conditionality attached to JSA, which help explain why the benefit sanction is being applied only to JSA claimants. JSA claimants will typically come into contact with Jobcentre Plus staff at least once a fortnight, and more often at certain points of their claim. As such they are usually more frequently in face to face contact with staff than other benefit claimants. The sanction for violent behaviour is designed to be a deterrent against such behaviour that will also encourage the JSA claimant to engage with the JSA labour market conditionality regime to receive the support they need to move into a job. The sanction is designed specifically to work in tandem with the existing conditionality regime to which JSA claimants are subject, this is not the case for other benefits.
Pilot schemes
Clause 21: State pension credit: pilot schemes
432. The provisions of the ECHR which may be engaged are Article 8 (right to respect for private and family life), Article 1 of the First Protocol (protection of property), and Article 14 (prohibition of discrimination).
433. Dealing with a person’s personal financial data in this manner will fall within the exception to the general principal in Article 8 in that it is necessary in the interests of “the economic well-being of the country” in decreasing pensioner poverty. As such, it is a proportionate measure taken to achieve a legitimate aim.
434. Article 1 of the First Protocol is engaged because state pension credit, as a social security benefit, is a possession for the purposes of that article. However, no interference with this possession will occur because only persons who are currently eligible to claim benefit, but who are not in receipt of benefit, will be the subject of the pilot scheme. No-one will be disentitled to benefit by virtue of any pilot scheme, and such a safeguard is established by the boundaries of subsection (2) of the clause.
435. As persons already eligible to claim state pension credit will make up the subject group of the pilot scheme, those who fall outside the pilot in a comparable situation must also be those who would be eligible to claim state pension credit. Such a person may therefore make a claim in the ordinary way and no discrimination will have occurred. It is unlikely that in such circumstances Article 1 of the First Protocol would be engaged in respect of the non-recipient, because the claim would not have been made by that person. Even if that is not the case, it is unlikely that any automatic payment under the pilot which had given a person benefit for a period prior to that which a person outside the scheme had actually claimed would be sufficient to give rise to discrimination, especially in view of the numerous other methods currently in place by which people are encouraged to claim. Should the pilot scheme provide for payments to be made without prejudice to any claim for tax credit, social security benefit or liability to tax (as is provided by subsection (7)) it may be that a person within the pilot scheme is in a better position that one without, even when the latter is in receipt of state pension credit. In such circumstances, no breach of the Convention will have occurred because the pilot scheme would again be seeking to achieve a legitimate aim of decreasing pensioner poverty and doing so in a proportionate manner.
Clause 22: Period for which pilot schemes have effect etc.
436. The use of piloting powers in general could raise Article 14 (taken with Article 1, Protocol 1) issues on the basis that persons in a specified area or locality to whom a pilot scheme applies are being treated differently (whether better or worse) than those who live elsewhere and do not fall within the scheme. It may be questioned whether the extension of the time limits to 36 months and the minor amendment to section 29(8) relating to the purpose of the pilot scheme is proportionate and necessary. The Government considers that the time extension is justified in order to allow for effective evaluation and contracting of pilot schemes and that the amendment to section 29(8) is necessary to ensure that new regulations inserted into the Jobseeker’s Act 1995 and the Social Security Administration Act 1992 can be piloted.
Miscellaneous
Clause 24: Attendance in Connection with jobseeker’s allowance: sanctions
437. Article 6 will be engaged but will not be contravened as there will be appeal rights.
438. Articles 3 and 8 will not be engaged as the existing hardship rules for certain vulnerable people will apply to the benefit sanctions.
439. Article 1 Protocol 1 will be engaged as both contributory benefits and non-contributory benefits may, in certain circumstances, be classified as possessions for the purposes of Article 1 Protocol 1. The interference has a legitimate aim to encourage compliance with the JSA conditionality regime.
Clause 25: Social security information and employment and training information
440. Article 8 is engaged because this policy involves the sharing of personal information about benefit claimants. There is no bulk element to the sharing, it will be shared on an individual basis with skills assessment providers and training providers only in relation to a specific claimant mandated to assessment or training at that provider. So there is no question of unmatched data being provided. Only the least information necessary will be shared in order to achieve the aim of the policy. In addition, a further safeguard in section 72 of the Welfare Reform and Pensions Act 1999 requires that a Minister designate any private sector providers by Order. This will ensure that information will be shared with approved providers who the Government is satisfied have appropriate policies for storing the information the Government shares with them.
Part 2 Disabled people: Right to control provision of services
441. Any right to a direct payment created in regulations made under clause 29(1) could potentially be considered a possession under Article 1 of Protocol 1. Rights and claims to something else can be considered to be property under Article 1 of Protocol 1 if they are sufficiently certain and relate to a substantive interest protected by the Article. Legitimate expectation is also protected under Article 1 of Protocol 1 if it relates to the substantive enjoyment of a property right. It may therefore be that the right to receive payments under regulations provided for under this legislation could constitute a possession for the purposes of Article 1 of Protocol 1, if the payments themselves constitute a property right or possession. However, even if it is the case that Article 1 of Protocol 1 is engaged, it is unlikely that there will be any interference with this property. In terms of the direct payments themselves, any right to a direct payment will only arise where certain conditions arise. If those conditions do not arise, there will be no right and therefore no possession. Someone who has ceased to meet the conditions of entitlement, or never met them, cannot claim any interference with possessions.
442. There may be issues in relation to Article 14 in conjunction with Article 1 of Protocol 1 once the regulations are made using the powers in clause 29. It could be argued that there is an analogy with the social security system and that, although there is no obligation to provide a direct payment, if the State chooses to create something which falls within a substantive Article of the Convention, it should do so in a non-discriminatory manner.
443. Even if the right to a direct payment does fall within Article 1 or Protocol 1, the Government takes the view that there is no discrimination in having a payment designed only for disabled people, because they are in a relevantly different position from non-disabled people. They are much more reliant on public services and are disproportionately disadvantaged as a result of having limited control over the delivery of those services.
444. It may be argued that the “right to control” is a civil right for the purposes of Article 6. Social security benefits, to which there is an entitlement in legislation, do give rise to an Article 6 civil right. However, the right to control differs from social security rights. The Government takes the view that the right to control is of a public law nature, as it relates to the provision of public services. It would not interfere with a person’s means of subsistence. It is therefore not a right to which Article 6 applies.
Part 3 Child maintenance
Clause 40: Disqualification for holding or obtaining travel authorisation or driving licence
445. Clause 40 gives the Child Maintenance and Enforcement Commission the power to make an administrative decision to disqualify a non-resident parent from holding a travel authorisation or driving licence if he fails to pay child maintenance due under the Child Support Act 1991. The Government has considered whether this power breaches Article 6, Article 8 or Article 1 of the First Protocol (protection of property). Insofar as Article 6 is engaged, the Government is satisfied that there is no breach. There will be a full right of appeal to a magistrates, court or sheriff, and the order will be suspended until the outcome of the appeal is known. Insofar as Article 8 and Article 1 of Protocol 1 are concerned, the Government considers any interference to be justified and proportionate. The measure will only be implemented where the non-resident parent has shown wilful refusal or culpable neglect regarding the payment of child maintenance, and it is intended that other, lesser, measures to ensure compliance will be used first. In addition, the Commission must give consideration to whether exercising the power in a case will impede the ability of the non-resident parent to pay by affecting his means of making a living.
Clause 43: Child support maintenance: offences relating to information
446. Clause 43(2) provides that s.14A(3A) of the Child Support Act 1991, which creates the offence of failing to notify the Commission of a change of address, is amended so that it includes a failure to notify the Commission of ‘any other change of circumstances’. The changes of circumstances will be prescribed by regulations. This provision may give rise to issues relating to Article 6, Article 8 and Article 1 of Protocol 1. The creation of this offence complies with Article 6 because the hearing will be before an independent and impartial tribunal (the magistrates’ court) and will be carried out in accordance with the specific requirements of Article 6. The imposition of a charge will be fair, because the regulations will make clear what information is to be provided by the non-resident parent and when. This will be communicated to the liable person in correspondence from the Commission before any charge is laid. The regulations will also only require persons to provide information that they have access to. Therefore there will be no unfairness in the procedure relating to the criminal offence, and the requirements of Article 6 will be met.
447. Article 8 may be engaged because the Commission will require liable persons to notify them of personal details, for example regarding their income or employment status. However this is justified and proportionate because the provision of personal information is essential to ensure that the child maintenance scheme is effectively delivered and that the correct amount of maintenance is passed to children.
448. Article 1 of Protocol 1 may be engaged because the liable person’s child maintenance liability may increase as a result of his change of circumstances. However the liable person is not being unjustly deprived of his property: he will simply be required to pay the correct amount of maintenance, calculated under the statutory scheme. Any interference with Article 1 Protocol 1 is, therefore, justified. This proposal strikes a fair balance between the interests of the community and the requirement to protect individuals’ rights. It is reasonable and proportionate to require liable persons to notify changes in circumstances and to impose penalties when they fail to do so.
449. This provision may give rise to issues relating to Article 6, Article 8 and Article 1 of Protocol 1.
450. Article 6 confers the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. The creation of this offence complies with Article 6 because the hearing will be before an independent and impartial tribunal and will be carried out in accordance with the specific requirements of Article 6.
Part 4 Birth registration
451. It could be said that such a duty to provide information about the father engages the mother’s rights both to a private life and family life under Article 8 ECHR. By imposing such a duty on the mother, the legislation is requiring her, in effect, to disclose that she had sexual relations with the man in question. The Government accepts that Article 8 is engaged in such circumstances. Furthermore, in naming the father, there is the intended consequence that the father will become involved in the family and therefore it could be argued that this is an interference with the right to respect for the family life that the mother has with her child.
452. Whilst the Government acknowledges that these rights of the mother under Article 8 may be engaged, such interference is justified in accordance with Article 8(2). Firstly, the overarching objective of the joint birth registration proposals is to improve child welfare by encouraging both parents to have a role in their child’s upbringing. Joint registration of the unmarried father on the birth register will give that father parental responsibility for the child, allowing him to exercise certain rights in respect of his child and encouraging him to take responsibility for his child. Secondly, the joint birth registration proposals are also intended to promote the right of the child to know his parent.
453. Therefore, the Government is of the view that interference with the mother’s Article 8 rights in requiring her to provide information about the father is appropriately balanced against the child’s Article 8 right to know about his parentage and the father’s right to respect for his family life under Article 8. In addition, the Government is of the view that there are adequate safeguards in place that will allow mothers who are vulnerable not to have to provide information about the father. It could also be argued that in requiring the mother to provide information about the father, the father’s Article 8 rights to a private life and a family life are engaged. The disclosure of information about the father to the registrar may violate the father’s right to privacy. Furthermore, it could be argued that there is an interference with the father’s right to respect for a family life (for example, if he has an existing separate family). The Government considers that if Article 8 is engaged its interference is justified.
454. Respect for private life requires that everyone should be able to establish details of their identity, including the identity of their parents. Furthermore, as mentioned above, the Government is of the view that the rationale for the joint birth registration proposals is such that if Article 8 is engaged such interference is justified. The European Court of Human Rights has recognised that legislation that discriminates between unmarried fathers and married fathers can be legitimate, proportionate and justified and therefore not contrary to Article 14. The Government is of the view that the difference in treatment between married and unmarried fathers and unmarried fathers and mothers that is proposed is objectively justified.
Paragraph 20 of Schedule 6
455. The Government acknowledges that Article 8 is engaged. However, the information will only be used for statistical purposes and there are appropriate safeguards in place to ensure that individuals cannot be identified.
COMMENCEMENT DATES
456. Details of the commencement dates are provided in paragraphs 253 to 256 of these Notes.
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