Legislative Scrutiny: Welfare Reform Bill - Human Rights Joint Committee

Legislative Scrutiny: Welfare Reform Bill - Human Rights Joint Committee Contents

1 Welfare Reform Bill

Date introduced to first House

Date introduced to second House

Current Bill Number

Previous Reports

16 February 2011

16 June 2011

HL Bill 114

None

Background

1.1 The Welfare Reform Bill was introduced in the House of Commons on 16 February 2011 and was brought from the House of Commons to the House of Lords on 16 June 2011. The Parliamentary Under-Secretary of State and Minister for Welfare Reform, Lord Freud, has certified that, in his view, the Bill is compatible with Convention rights. The Bill completed its Committee stage in the House of Lords on 28 November and its Report stage is scheduled for 12 December.

1.2 The Committee wrote to the Secretary of State on 20 July 2011 asking for further information on a number of specific issues raised by the Bill.[1] The Secretary of State replied by letter dated 26 September 2011.[2] We publish this exchange of correspondence with this Report. We also received submissions about the human rights compatibility of the Bill from Carers UK, Scope and Mr. A. Fisher. All submissions received are published on our website,[3] and where relevant to the issues we consider to be significant, we refer to them below.

The purposes and effect of the Bill

1.3 The purpose of the Bill is to implement the Government's proposals for fundamental reform of the welfare system. The Government's aims, broadly speaking, are to improve work incentives, to simplify the benefits system, and to make it less costly to administer. The most relevant parts of the Bill, from a human rights perspective, are summarised below.

1.4 In short, Part 1 of the Bill introduces a new benefit, "Universal Credit", which will be payable to people who are unemployed and to people in low-paid work, and will replace Income Support, income-based Job Seeker's Allowance, income-related Employment Support Allowance (ESA), Housing Benefit, Child Tax Credit and Working Tax Credit. A feature of Universal Credit is the proposed "taper" approach to the withdrawal of benefits for those in work: it aims to smooth the transition into work by reducing the support a person receives at a consistent rate as their earnings increase. Claimants may be required to meet certain responsibilities, with the potential for the reduction of benefits if they fail to meet those requirements and, ultimately, the withdrawal of benefits for periods of up to three years.

1.5 Part 2 of the Bill makes changes to the provision of ESA more broadly, including the introduction of a "time-limit" on the contributory element of ESA payments. Part 3 transfers responsibility for Social Fund Crisis Loans and Community Care Grants to local authorities and devolved administrations in England and Wales. It also introduces limits on housing benefits, including limiting access to over-occupied housing for social housing tenants.

1.6 Part 4 of the Bill replaces Disability Living Allowance (DLA) with a Personal Independence Payment (PIP). This Part of the Bill sets out the framework for the new benefit. The detailed design is to be provided for in secondary legislation. The Government has also stated that it intends to reduce the budget for DLA by 20% overall. Part 5 of the Bill introduces a cap on the amount of benefits a person or a couple are allowed to claim.

1.7 Part 6 amends the Child Poverty Act 2010 by removing the Secretary of State's obligation to report annually to Parliament on progress towards the statutory targets and replacing it with a duty on the new Social Mobility and Child Poverty Commission to make such annual reports.

1.8 The Government's principal objective in this Bill is to support people to move into and progress in work, while still supporting those in greatest need.[4] We commend the Government's aim to support more people, and in particular people who might otherwise be disadvantaged in the employment market, into work as the most effective route out of poverty. This aim is consistent with many international human rights instruments which recognise the right to work[5] and the right to an adequate standard of living.[6] We therefore welcome the Bill as a potentially human rights enhancing measure. It is our task, however, to scrutinise the means by which the Government proposes to achieve these goals for compatibility with human rights law, including the UK's obligations under various international human rights treaties to which the UK is a party, and that is what this Report seeks to do. The most relevant human rights standards are identified below.

Information provided by the Government

EXPLANATORY NOTES/HUMAN RIGHTS MEMORANDA

1.9 In a number of legislative scrutiny Reports this session, we have commended the practice of departments which have provided us with a detailed human rights memorandum either on or shortly after a Bill's publication, setting out a detailed analysis of the Bill's human rights implications and a very full explanation of the Government's view that the Bill is compatible with human rights law.[7] Such human rights memoranda facilitate proper scrutiny for human rights compatibility by this Committee and help to ensure that parliamentary debate about the human rights implications of Government Bills is properly informed. As such, they represent important steps by the Government to strengthen the principle of subsidiarity, by encouraging a greater role for Parliament in the scrutiny of laws for human rights compatibility, as increasingly recommended by international bodies and agreements, including the Interlaken Declaration and Action Plan agreed by the 47 members of the Council of Europe in February 2010.

1.10 The Department of Work and Pensions did not provide us with such a human rights memorandum in relation to this Bill. It was encouraged to do so, but declined. The Explanatory Notes contain a section on the European Convention on Human Rights,[8] but the analysis contained therein is disappointingly lacking in detail. It analyses the human rights implications of the Bill as a whole according to the ECHR rights affected, rather than clause by clause. This means that the analysis is at a much higher level of generality than in the ECHR memoranda based upon clause-by-clause analysis which is undertaken for the Government's Parliamentary Business and Legislation Committee, on which other human rights memoranda we have received have been based. The Explanatory Notes are replete with assertions that a particular measure which interferes with a right is "proportionate" due to "safeguards", often without specifying what those safeguards are or, where they will be provided in regulations, precisely what those safeguards are intended to be. There is little reference to evidence to substantiate the Government's views assertions about justification and proportionality, and there is hardly any consideration of or reference to relevant case-law.

1.11 We remind departments of the examples of best practice by those departments which have provided us with detailed human rights memoranda accompanying Government Bills. This is not merely a matter of preference by this Committee. The principle of subsidiarity, which the Government rightly seeks to strengthen during its Chairmanship of the Council of Europe, requires the Government and Parliament to fulfil their responsibility for implementing human rights in the national legal system. The provision of detailed human rights memoranda to Parliament is an important means of demonstrating the Government's fulfilment of that responsibility. It also facilitates Parliament in fulfilling its responsibility in that regard. We also remind the Government that, as the case-law of the European Court of Human Rights clearly shows,[9] laws which are passed following detailed and informed parliamentary scrutiny of their human rights compatibility are more likely to withstand subsequent judicial scrutiny.

1.12 In the absence of a detailed human rights memorandum, we asked the Secretary of State a number of detailed questions in correspondence.

ADEQUACY OF THE IMPACT ASSESSMENTS

1.13 The quality of the impact assessments conducted within Government becomes increasingly important for the purposes of analysing potential discriminatory impacts when little wider detail is available. Concern has been expressed about the thoroughness and coverage of the impact assessments carried out by the Government. Carers UK, for example, have pointed out that the impact assessments make no mention of the impact of some of the changes on carers, even where this impact will be very significant, in particular in the case of the proposed reforms to DLA. Equality Impact Assessments were not published by the Government until the Bill was in Committee in the Commons, and, while equality impact assessments have now been published for distinct parts of the Bill, these do not attempt to assess the cumulative impacts of multiple provisions in the Bill on particular groups with protected characteristics. This is of concern, since individuals will experience these changes cumulatively, and their impact needs to be understood in this way. For example, a disabled person may find that they lose their lower rate DLA, and therefore become subject to a cap on their housing benefit such that they cannot afford to remain in their home. Moving may disrupt informal patterns of care and support at the same time as they have increased reliance on these supports.

1.14 Whilst accepting that such assessments of cumulative impact would be analytically complex and challenging, they nevertheless should be feasible. For example, a recent report by the Institute of Fiscal Studies assessed the impact on child poverty of the Government's changes to personal taxes and state benefits.[10] It concludes that, while considered in isolation, Universal Credit should reduce relative poverty significantly (by 450,000 children), this reduction is more than offset by other changes, with a predicted increase in absolute child poverty by 200,000 in 2015-16 and 300,000 in 2020-21.

1.15 We call on the Government to improve its capacity to conduct equality impact assessments, in particular to go beyond piecemeal analysis of each measure by assessing the proposed provisions as a whole, including their cumulative impact on individuals and groups, from an equality perspective.

THE LACK OF DRAFT REGULATIONS

1.16 The degree of risk to human rights standards posed by the operation of changes to the welfare systems will depend to a considerable extent upon the detail of how a particular scheme is administered. The traditional approach to welfare reform—which focuses on a framework in primary legislation accompanied by multiple regulation-making powers—can undermine parliamentary scrutiny. The Welfare Reform Bill follows this traditional pattern. Human rights scrutiny is made more difficult if the Bill is not accompanied by draft regulations, clear statements on the policy intention of the Government, and high quality impact assessments.[11] While certain regulations will be subject to affirmative resolution on their first introduction, even this procedure presents only a limited opportunity for Parliamentary scrutiny. Moreover, it is only in relation to regulations which are subject to the affirmative resolution procedure that a statement on their compatibility with the ECHR will be included in the Explanatory Memorandum.

1.17 For the reasons we set out below we have concerns that the proposals may be implemented in a way which could lead to a risk of incompatibility with Convention rights. We reiterate our previous recommendation that, where the Government's view on compatibility relies on safeguards to be provided in secondary legislation, we recommend that draft Regulations are published together with the Bill. At the very least, the Government should describe in the explanatory material accompanying the Bill the nature of the safeguards it proposes to provide.

THE NEED FOR MONITORING MECHANISMS

1.18 The limitations on the scope of the impact assessments and the framework nature of much of the Bill increase the importance of monitoring mechanisms to assess the measures' impact on individual rights once the measures are in force. There are some safeguards in this respect in the Bill, but these are relatively few and limited to distinct aspects of the Bill. For example, the Bill proposes that the Government should report to Parliament on the operation of the assessment process for the Personal Independence Payment.

1.19 The Government says that detailed evaluation plans for post-implementation are still being developed. Administrative datasets will be used to monitor trends in the benefit caseloads for the protected groups and in the level and distribution of benefit entitlements. However, this data will provide robust material only for age and gender not, as a rule, for other protected groups. This will impede the ability to effectively monitor whether there are adverse consequences for the human rights of particular vulnerable groups. We call upon the Government better to monitor the post-legislative impact of the measures in the Bill, and of legislative provisions of this kind generally, with particular attention to the risks of destitution, discrimination and retrogression highlighted below.

Relevant human rights standards

OUR APPROACH

1.20 Our remit is to consider "matters relating to human rights in the UK." Since its inception in 2000 this Committee has always interpreted "human rights" to include all the human rights treaties to which the UK is a party. The UK has agreed to be bound by a number of international human rights treaties containing provisions which are relevant to the design and operation of its system of welfare benefits. In addition to the European Convention on Human Rights, these include the International Covenant on Economic, Social and Cultural Rights, the UN Convention on the Rights of the Child and the UN Convention on the Rights of Persons with Disabilities. Nothing in any of these treaties prescribes a particular welfare system. Individual states retain a wide "margin of appreciation" in respect of the establishment of domestic welfare systems: that is to say, they have some considerable leeway in deciding how they should be designed. Nevertheless, the treaties which bind the UK in international law do contain a number of provisions relevant to Parliament's scrutiny of this Bill for human rights compatibility.

THE LEGAL STATUS OF THE RELEVANT STANDARDS

1.21 Before considering the specific provisions of those treaties which are relevant, we think it is important to point out the different nature of the legal obligations imposed on the State by the European Convention on Human Rights on the one hand, and by human rights treaties such as the ICESCR[12] and the UNCRC on the other.

1.22 All human rights treaties impose legal obligations, but the precise nature of those obligations differs. ECHR rights are the archetypal legally enforceable rights, fully justiciable by courts and capable of protection by legal remedies. Rights such as the right to social security and the right to an adequate standard of living, on the other hand, are subject to progressive realisation and, as such, are less susceptible of judicial enforcement. In our view, in any parliamentary democracy it is the democratic branches of the State, that is, the Government and Parliament, which should have primary responsibility for economic and social policy, in which the courts lack expertise and have limited institutional competence or authority.

1.23 It follows, from this difference in the nature of the legal obligations imposed by the ECHR and by other human rights treaties, that political accountability for compliance with the UK's human rights commitments under the UN human rights treaties is in practice even more important than legal accountability. Parliament therefore has a key role to play in scrutinising legislation to secure compliance with the positive obligations and minimum standards to which the UK has committed itself in those treaties.

THE EUROPEAN CONVENTION ON HUMAN RIGHTS

1.24 The European Convention on Human Rights (ECHR) sets out a series of individual rights, a number of which may be directly affected by statutory welfare systems. Article 1, Protocol 1 ECHR provides that any interference with or deprivation of established rights to property must strike a "fair balance" between the right of the individual to peaceful enjoyment of their possessions and the public interest. As the Government accepts,[13] welfare benefits are considered "possessions" for the purpose of this Article,[14] and any interference or deprivation must therefore be in "in accordance with law", and be for a legitimate aim and proportionate to that aim.[15]

1.25 The Government also correctly acknowledges that questions as to social security entitlement will be "within the ambit" of Article 1 Protocol 1 ECHR,[16] and therefore the ECHR guarantee (in Article 14) that Convention rights must be enjoyed "without discrimination" is also relevant.[17]

1.26 Two additional ECHR rights are of potential relevance in the context of this Bill as discussed below: the positive obligation on the state to ensure that individuals are not exposed to destitution and hardship at a level which will amount to inhuman or degrading treatment (Article 3 ECHR) or endanger their right to respect for private or family life (Article 8 ECHR).[18]

THE UN HUMAN RIGHTS TREATIES: ICESCR, THE UNCRC AND THE UNCRPD

1.27 The right to social security and the right to an adequate standard of living are both widely recognised in international human rights standards to which the UK has bound itself by international treaty. These are derived from the recognition in the Universal Declaration of Human Rights of the right to "security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control."[19] That Declaration was itself inspired by President Roosevelt's "Four Freedoms" in his 1941 State of the Union address to Congress, including "freedom from want" and "freedom from fear".

1.28 The UK is a party to the International Covenant on Economic Social and Cultural Rights (ICESCR), which guarantees amongst other things the right to an adequate standard of living and to social security. Article 11 ICESCR makes clear that circumstances where an individual is permitted to become destitute would be in breach of the right to an adequate standard of living, which includes 'adequate food, clothing and housing […] and the continuous improvement of living conditions".[20] The UN Convention on the Rights of the Child similarly provides, in Article 27, for recognition by States of the right of every child to an adequate standard of living.

1.29 The right to social security has been subsequently incorporated in a range of international human rights treaties by which the UK has agreed to be bound, including the International Convention on the Elimination of All Forms of Racial Discrimination (Article 5(e)); the Convention on the Elimination of All Forms of Discrimination against Women (Articles 11 and 14); the UN Convention on the Rights of Persons with Disabilities (Article 28); and the UN Convention on the Rights of the Child (Article 26). The UN Convention on the Rights of Persons with Disabilities also requires the State to take progressive measures to promote the right of disabled people to live independently in the community and to refrain from retrogressive measures which undermine this right (Articles 4, 19 UNCRPD).

1.30 In its recent General Comment on the scope of the right to social security, the UN Committee on Economic and Social Rights explained:

The right to social security is of central importance in guaranteeing human dignity for all persons when they are faced with circumstances that deprive them of their capacity to fully realise their Covenant rights.[21]

To demonstrate compliance with their general and specific obligations, States parties must show that they have taken the necessary steps towards the realisation of the right to social security within their maximum resources, and have guaranteed that the right is enjoyed without discrimination and equally by men and women[…]

Violations include, for example, the adoption of deliberately retrogressive measures incompatible with the core obligations […] the formal repeal or suspension of legislation necessary for the continued enjoyment of the right to social security; [...] active denial of the rights of women or particular individuals or groups.

Violations through acts of omission can occur when the State party fails to take sufficient and appropriate action to realise the right to social security. In the context of social security, examples of such violations include the failure to take appropriate steps towards the full realisation of everyone's right to social security; the failure to enforce relevant laws or put into effect policies designed to implement the right to social security [...] The Covenant is clear that, although States are free to secure its minimum obligations through a variety of means, any failure to meet the minimum standards envisaged will be in violation of the international standards which the United Kingdom has accepted. The Government has recently stressed that it considers that the principle means of securing these rights in domestic law should be through legislation enacted by a democratically accountable Parliament.[22] In our view, in ratifying the Covenant, the UK has made a commitment, binding in international law, to abide by the terms of the Covenant. This requires government, Parliament and the courts to make efforts to ensure the fullest possible compliance with the terms of the ICESCR.[23]

1.31 The rights to social security and an adequate standard of living which are recognised in these treaties are subject to the principle of progressive realisation within available resources: States must take deliberate, concrete and targeted steps towards their realisation "to the maximum extent of their available resources."

1.32 The availability of resources is therefore of central relevance to the extent of the UK's obligations under the UN human rights treaties However, the duty of progressive realisation entails a strong presumption against retrogressive measures. In its General Comment on the scope of the ICESCR right to an adequate standard of living and to social security, the UN Committee on Economic Social and Cultural Rights explained:

There is a strong presumption that retrogressive measures taken in relation to the right to social security are prohibited under the Covenant. If any deliberately retrogressive measures are taken, the State party has the burden of proving that they have been introduced after the most careful consideration of all alternatives and that they are duly justified by reference to the totality of the rights provided for in the Covenant, in the context of the full use of the maximum available resources of the State party. The Committee will look carefully at whether: (a) there was reasonable justification for the action; (b) alternatives were comprehensively examined; (c) there was genuine participation of affected groups in examining the proposed measures and alternatives; (d) the measures were directly or indirectly discriminatory; (e) the measures will have a sustained impact on the realization of the right to social security, an unreasonable impact on acquired social security rights or whether an individual or group is deprived of access to the minimum essential level of social security; and (f) whether there was an independent review of the measures at the national level.[24]

1.33 These same principles apply to the other international rights treaties to which the UK is a signatory.

THE SCOPE OF THE GOVERNMENT'S HUMAN RIGHTS ANALYSIS

1.34 One of the questions we asked the Secretary of State in correspondence was whether the Government has conducted any analysis of the proposals in the Bill for their compatibility with the UK's obligations under other internationally binding human rights treaties. As this Report explains below, a number of such treaties contain obligations which are clearly relevant to scrutiny of this Bill, including the UN Convention on the Rights of the Child, the International Covenant on Economic, Social and Cultural Rights, and the UN Convention on the Rights of Persons with Disabilities. The Government's response to the Committee's letter says "The Government does not consider that the proposals raise any particular issues in respect of these wider obligations such as to merit a detailed analysis." No such analysis has therefore been provided.

1.35 We are disappointed by the Government's failure to carry out any detailed analysis of the compatibility of the proposals in the Bill with the UK's obligations under the UNCRC, the ICESCR and the UNCRDP. The legal effect of these human rights obligations in the UK is different in kind from the legal effect of Convention rights, which are given effect in our national legal system under the Human Rights Act, but they are nevertheless binding obligations in international law and the Government should be able to demonstrate that they have considered the compatibility of legislative proposals with those obligations. We have commended a number of human rights memoranda from departments in the past which have done precisely that.[25] We remind departments of this Committee's expectation in this respect, which is explicitly referred to in the Cabinet Office Guide to Legislative Procedure.

1.36 We also remind the Government of the "clear commitment" given by the Minister of State for Education, Sarah Teather, to the House of Commons on 6 December 2010, "that the Government will give due consideration to the UNCRC articles when making new policy and legislation", and, in so doing, will always consider the recommendations of the UN Committee on the Rights of the Child.[26]

Significant human rights issues

(1) DESTITUTION

1.37 Article 3 ECHR, which prohibits "inhuman or degrading treatment", places States under a positive obligation to ensure that individuals are not exposed to destitution and hardship at a level which amounts to inhuman or degrading treatment. The provisions of the Bill which may give particular rise to concerns in this respect are those which allow for sanctions reducing benefits for failure to comply with work-related requirements. We do not consider that making benefits conditional on compliance with work-related requirements is in breach of the prohibition on servitude and forced labour in Article 4 of the ECHR.[27]

1.38 There are two issues in identifying a risk of breaching Article 3. Firstly, whether an individual's situation is of the necessary gravity to constitute inhuman or degrading treatment; and, secondly, whether the state, through a positive act (such as introducing a provision which restricts the availability of benefits) or omission can be held responsible for that situation.

1.39 The leading domestic judgement on this issue, Limbuela, relates to asylum seekers barred from claiming benefit or working. We are not aware of any European Court of Human Rights cases in relation to conditionality of welfare benefits.[28]

1.40 In the context of the exclusion of a person from welfare support, the standard of 'inhuman and degrading' is a very high threshold. It is a complex test which must take all relevant factors into account—including the entire package of restrictions and deprivations, and the vulnerability of the individual, for example whether they are elderly or in ill health.[29] The issue is judged by the standards of modern British society: therefore, for example, the suffering of a homeless woman, defenceless against the risks of the streets at night, might "very soon reach the minimum degree of severity required."[30]

1.41 The Government considers that there is no incompatibility with Article 3 because the reduction of a universal credit award where a claimant has failed to comply with mandatory work-related requirements does not amount to "treatment," since claimants or potential claimants have the opportunity to avoid severe consequence by working, thus breaking the chain of State responsibility for the consequences.

1.42 Conditionality itself is clearly not a breach of Article 3 ECHR. However, where there is no ban on working but someone is "obviously unemployable" this situation may give rise to a claim of 'treatment' by the State such as to constitute a breach of Article 3.[31] There is a risk, for example, that some disabled people who are adjudged to be capable of work may in practice not be able to do so. For example, whilst the Bill states that people will not face sanctions for not complying with their action plan to ready them for work if they have good reason not to do so, and they alert the authorities to their circumstances within five working days, such a deadline may be unrealistic for people who are unwell. The Bill also states that any activity a claimant will be asked to undertake must be reasonable, taking into account the person's circumstances. There are concerns that in practice those administering the benefit will not have the tools necessary to assess effectively enough an individual's circumstances to know when a particular activity is appropriate or not. Further concerns have been raised that sanctions for leaving a job voluntarily may unfairly penalise some people who leave work because they judge it to be damaging to their mental health. If work-related requirements place an onerous burden on individuals who are not able to meet them as a result of their mental or physical disabilities, or which may exacerbate their health difficulties, they may lead to an increased risk of a breach of that individual's right to respect for their Article 3 rights.

1.43 In addition, the Government cites the hardship regime which will be introduced to protect vulnerable claimants and their families. However, these safeguards are largely to be provided in secondary legislation, which makes it difficult to assess whether they will be adequate to prevent claimants and their families falling into destitution.

1.44 For particular groups other means of support will be available where necessary to ensure compliance with Article 3. For example, section 95 of the Immigration and Asylum Act 1999 makes provision in some circumstances for asylum seekers. However, alternative welfare provision will not always be available.

1.45 The ECHR does not preclude individual member states from setting conditionality requirements in respect of work. However, there is a risk that the conditionality and sanction provisions in the Bill might in some circumstances lead to destitution, such as would amount to inhuman or degrading treatment contrary to Article 3 ECHR if the individual concerned was genuinely incapable of work. The absence of more detail about the proposed system of hardship payments, and the lack of publicly available statistics on the number of applications for hardship support under existing regimes, means that we are not in a position to assess the degree of risk. We urge the Government to give careful consideration to this risk, to take steps to establish an appropriate hardship regime, train staff to ensure sensitivity to this issue and carefully monitor the impact of the sanctions regime on people with particular characteristics.

(2) DISCRIMINATION

1.46 Article 14 of the ECHR will be violated where there is discrimination in the enjoyment of a right which falls within the ambit of another Convention Article. This Bill's provisions fall within the ambit of a number of Convention Articles: Article 1, Protocol 1 ECHR, Article 3 and Article 8.[32]Discrimination in this context goes beyond unjustified disparate treatment. We are not in a position to assess the degree of that risk in the absence of publicly available statistics on the number of applications for hardship support under existing regimes, and more detail about the proposed system of hardship payments.

1.47 The equality impact assessments of the Bill's provisions are limited in some respects because of lack of detail on some provisions. However, they do make plain that some provisions will have a disproportionate impact on protected classes, including women, disabled people, certain ethnic minority groups and children in larger families or single parent families.[33] In respect of each instance of disproportionate impact, a justification is provided. We wrote to the Minister questioning the possibility of the risk of discrimination in respect of changes to Employment Support Allowance (ESA); the introduction of a Household Benefit Cap and housing benefit restrictions.

1.48 For the reasons set out below, we remain concerned that these proposals may be implemented in a way which could lead to a discriminatory impact and may not demonstrate a reasonable relationship of proportionality between the means employed and the legitimate aim that is sought to be realised. We consider that changes to welfare support designed to meet the right to social security and the right to an adequate standard of living should be supported by evidence. We recommend that the changes should be closely monitored to understand the implications of the proposals for individual rights, including the right to respect for an adequate standard of living, and the right to enjoyment of those rights without discrimination.

Employment Support Allowance

1.49 There are two forms of Employment and Support Allowance (ESA): contributory ESA, for those with a sufficient National Insurance contribution record; and income-related ESA, which is means-tested. Claimants who satisfy the Work Capability Assessment for ESA may be placed in either the "Support Group", if they are deemed to have a "limited capability for work-related activity", or in the "Work Related Activity Group".

1.50 Currently, contributory ESA can be paid until State Pension age. The Bill would reduce this to 12 months. Some claimants will be able to claim income-related ESA, but this will be reduced if they have a working partner or capital over £16,000. Only 60% of people losing their contributory ESA will be wholly or partially compensated for this loss by income-related ESA.[34] The rationale for the change is to produce a simpler and fairer benefits system, targeting support at those who are most in need.

1.51 This provision will particularly affect disabled people because ESA is directly targeted at people with health conditions that limit their ability to work. This provision is said to be justified on the basis that time-limiting is only being introduced for people who it is anticipated will be able to return to work in the future with help and support. There is also predicted a higher average loss in household net income for women than for men, and it is thought probable that older people may be more likely to be affected, especially those who may find it difficult to get back into work due to their age. These impacts are said to be mitigated by increased support for these groups in accessing work.

1.52 The Minister has acknowledged that the decision to introduce a time limit has not been taken on the basis of any evidence which shows that twelve months is a reasonable time frame in which to expect people with a health condition or disability to have recovered, where appropriate, or found employment.[35] Moreover, there are considerable concerns about the operation of the tests assigning claimants to the work related group. This may call into question the objective justification for the disparate impact, and at the very least suggests the need for close scrutiny to ensure that Article 14 is not breached.

Household Benefit Cap

1.53 A cap will be introduced on the total amount of benefit that working-age people can receive so that households on out of work benefits will no longer receive more in benefit than the average weekly wage earned by working households. On average households affected by the cap will lose around £93 a week. Around 35% will lose more than £100 per week.[36]

1.54 The Minister states that the reason for having a cap is to balance the interests of benefit claimants with the interests of taxpayers, and that the effect of the cap is proportionate, taking into account: (1) the amount of the cap and the fact it will be based on average household earnings; (2) the fact that claimants will be notified of the cap and given time to adjust their spending to accommodate their new levels of benefit; and (3) the fact the cap will affect relatively few households and that those affected will already have a substantial income from benefits.

1.55 At the same time, the Government acknowledges that it is difficult to predict accurately what will happen to the affected households, as it depends on households' behavioural responses and on the availability of accommodation.[37] We believe that close monitoring of the impact of this change is essential, in order to ensure that it is proportionate, and to take mitigating action if necessary.

1.56 The cap will particularly affect large families with several children, who might also live in larger family homes and so be entitled to high levels of Housing Benefit, or households in high rent areas receiving large Housing Benefit payments.[38] Over 80% of households who are likely to be affected by the cap will consist of 3 or more children, while fewer than 10% of households likely to be affected by the cap will consist of no children at all.

1.57 Because a large proportion of those affected by the benefit cap are likely to be large families, households from cultural backgrounds with a high prevalence of large families will be affected most. It is estimated that approximately 30% of the households that are likely to be affected by the cap will contain somebody who is from an ethnic minority. (Ethnic minorities form less than 20% of the overall benefit population.)

1.58 It is anticipated that 60% of those who have their benefit reduced by the cap will be single females, who comprise around 40% of the overall benefit population. Most of the single women affected are likely to be lone parents. The Children's Society has conducted an analysis which suggests that children will be disproportionately affected by the benefits cap.[39] The potential impact in terms of increased poverty for children is considered below.

1.59 The disproportionate impact on larger households is said to be justified because it promotes fairness with similar-sized households which are just outside entitlement to benefit.[40] This is undoubtedly a legitimate aim. There is no Strasbourg case law on this specific issue. An alternative approach to increasing fairness is to compare like with like—that is to calculate the level of the cap based on earnings of families with children, rather than all households. We ask the Government whether they have carried out an assessment of these approaches with a view to comparing their proportionality.

1.60 We have particular concerns about the potential impact on disabled people. Approximately half of the households that are likely to be capped contain somebody who is disabled, reflecting their proportion in the overall benefit population. All households which include a member entitled to DLA will be exempt from the cap.

1.61 The Government assert that not everyone defined as disabled has additional financial needs, and that where disabled claimants are adversely affected by the change (because they are not in receipt of DLA, and hence not exempt from the cap) they can avoid the impact of the cap if they start working sufficient hours to receive Working Tax Credit. However, we are concerned that some disabled people who do not get DLA (especially with the tightened criteria of the new PIP regime) may be forced to move, and will face disparate impact in terms of extensive disruption regarding adaptations and caring/support networks. We recommend allowing some additional discretion to exempt disabled people facing exceptional hardship from the cap.

Under occupation of social housing

1.62 From 1 April 2013 it is intended to introduce size criteria for new and existing working-age Housing Benefit claimants living in the social rented sector. The policy objective is said to be the reduction in the cost of Housing Benefit in order to tackle the budget deficit.

1.63 Black and minority ethnic claimants are less likely to be affected by the measure than white claimants.[41] However, for the smaller number of black and minority ethnic households which are affected, average losses are larger. This is partially due to a higher proportion of black and minority ethnic claimants living in London where rents are higher than other parts of the country.

1.64 The proportion of disabled claimants affected by the measure is higher than for non-disabled claimants.[42] The National Housing Federation estimates that about 108,000 tenants in social rented properties adapted specifically for their needs are likely to be affected by the introduction of the size criteria to restrict housing benefit.[43] If such tenants were forced to move into properties unsuited to their needs this might risk breaching their Article 8 rights to respect for private or family life[44] as well as being potentially discriminatory.

1.65 The Government has indicated that it is prepared to look at exemptions for individuals who are disabled, where their homes have been subject to extensive adaptations.[45] However, this would not address the disruption to patterns of caring and support networks which can be vital.

1.66 We recommend allowing some additional discretion to exempt disabled people facing exceptional hardship from the under-occupation provisions.

(3) RETROGRESSION

1.67 As explained above, there is a strong presumption in the UN human rights treaties against retrogressive measures affecting the right to social security and to an adequate standard of living.

1.68 During this inquiry into the right to independent living for disabled people we have received evidence about specific concerns regarding potentially unjustified retrogression in relation to the UK's obligations under the UNCRDP, particularly Article 19 regarding independent living. These concerns particularly focus on the replacement of DLA with PIP.

1.69 DLA has a mobility component and a care component. The mobility component—for help with walking difficulties—is paid at two different levels. The care component—for help with personal care needs—is paid at three levels. DLA cannot be paid until a person has needed help for three months, and the person must be expected to need help for a further six months. It is proposed to change this qualifying period to six months. There are concerns that this could leave disabled people without support at a critical time, creating further risks to health.

1.70 The Government's view is that the proposal to replace DLA with PIPs is compliant with the UK's obligations under the UNCRDP. It says that PIP is intended to target resources on the people that need it most, taking into account the whole range of services available to, and balancing the various needs of, disabled people. It believes that the changes are justifiable, in terms of supporting those most affected by disability and introducing a fairer, more consistent and evidence-based, assessment system to identify such individuals.

1.71 However, the proposed 20% reduction in the overall budget for PIP means that funds are not merely being refocused on the most needy, but are being significantly reduced. There is considerable uncertainty about how this reduction will be achieved. Increasing the qualifying period for the benefit, and removing mobility element from those in residential care, will only achieve a proportion of the cost reduction required. Reduction in benefit rates and tighter eligibility criteria are likely to be needed to achieve savings of this magnitude. There is therefore a significant lack of clarity about how the Bill's provisions will be implemented. In light of this uncertainty, and taking into account the discussion above of potential discrimination in relation to disabled people, we are not satisfied that the Government has demonstrated reasonable justification for the negative impact of the introduction of PIPs on the right of disabled people to independent living.

1.72 We had particular concerns regarding the proposal to remove the mobility element of PIP for those in residential care. The Government emphasised that this did not arise from economic necessity but from a concern to eliminate overlaps in provision,[46] and pledged to institute an internal review on this issue. In its written evidence to us, Scope pointed out the lack of any evidence base for this proposal. Lord Low's Review found no evidence of overlap in the support offered by the mobility component of DLA and that offered by local authorities and providers, all of which play a distinct part in meeting disabled people's mobility needs.[47]

1.73 In light of the findings of the Low Review and its own internal review, the Government now accepts that there was insufficient evidence of overlaps in funding provision to justify the withdrawal of the mobility component. On 1 December the Government announced that the mobility component of disability living allowance will not be removed from people living in residential care homes and that the mobility component of PIP will also be payable to people in residential care homes provided they satisfy the entitlement conditions.[48] We welcome the Government's willingness to listen to concerns raised about the proposal to withdraw the mobility component of PIP from residential care home residents, including in particular its impact on the right of disabled people to independent living, and its decision to table an amendment to the Bill to remove this provision.

1.74 A new assessment process to be used to determine eligibility for PIPs is still being developed. The Minister states that it is intended to be fairer than the assessment process for DLA, taking a more holistic account of the impact of disability. We welcome this intention, which is in keeping with the Government's avowed commitment to the "social model" of disability (as opposed to the outdated "medical model"). This approach recognises that the obstacles to disabled people's inclusion in society are not their physical condition but the environmental, social and attitudinal barriers to their full participation. The UNCRDP is entirely premised on this social model of disability.

1.75 The proposed assessment process for eligibility for PIPs, however, has been criticised for failing to give effect to the Government's stated intention that the assessment process for PIPs takes a more holistic account of the impact of disability, because the test for eligibility provided for in the Bill is essentially a medical one. We believe that amending the Bill to ensure that the assessment process for PIPs takes account of the social, practical and environmental barriers experienced by disabled claimants would make it less likely that that the Bill will lead to incompatibilities with the UK's obligations under the UNCRDP. We further recommend a trial period for the new assessment process and a report to Parliament on the implementation of the new testing system, to ensure that the impact of the new assessment process is fully assessed and analysed in light of its operation in practice.

1.76 In relation to the UNCRC, the chief concern is that progress in addressing child poverty will be undermined, and may indeed be reversed. Article 27 requires states to recognize the right of every child to a standard of living adequate for the child's physical, mental, spiritual, moral and social development. Whilst parents and carers have the primary responsibility to secure this, states also have responsibility to take appropriate measures to assist them. Both the UN Committee on the Rights of the Child and the UN Committee on Economic, Social and Cultural Rights have expressed concern that child poverty remains widespread in the UK, and called on the Government to intensify its efforts to combat it.[49] The Child Poverty Act 2010 was explicitly linked to the aim of progress towards the realisation of children's rights under international law.

1.77 It is against this background that the impact of the Bill's measures on children must be assessed. A recent report by the Institute of Fiscal Studies forecasts that, while considered in isolation, Universal Credit should reduce relative poverty significantly (by 450,000 children), this reduction is more than offset by the poverty-increasing impact of the Government's other changes to personal taxes and state benefits.[50] It predicts an increase in absolute child poverty by 200,000 in 2015-16 and 300,000 in 2020-21. The report identifies the most important reform in increasing poverty as the change to the Local Housing Allowance, which from April 2013 will be indexed in line with the consumer price index measure of inflation, rather than one derived from the retail price index.

1.78 Some provisions in the Bill will disadvantage particular groups of children who are already more likely to be in poverty. The provisions with regard to a household benefits cap are more likely to impact on those in large families, as discussed above.

1.79 Concerns regarding the sanctions regime in relation to breaches of Article 3 ECHR are discussed above. There is a particular risk of disproportionate impact on lone parents if those administering sanctions fail to take account of the poor availability of jobs with flexible working hours and affordable childcare. (This is exacerbated by the shift of lone parents with children under 7 but over 5 from Income Support to Job Seekers Allowance). A report from the Department of Work and Pensions, prior to the Bill's introduction of tighter conditionality sanctions, identified the need further to consider the impact of the JSA conditionality regime on lone parents and the effect of any loss of benefit on them and their children.[51] We endorse this recommendation for detailed research and monitoring of the impact conditionality regime on loan parents.

1.80 Payment of Universal Credit to only one member in a household will reduce the financial autonomy of women.[52]A Joseph Rowntree Foundation study demonstrated the continued importance of paying benefits for children to the caring parent and the continued significance of the intra-household distribution of benefits.[53] There is a high risk that women have little or no access to money, and will struggle to pay the bills or feed their children. The Secretary of State has said that he understood these and that "there should be scope within the system to make alterations, where a change is required on specific payments".[54]

1.81 We are also concerned that the abolition of the Discretionary Social Fund, and its replacement with locally-based and designed discretionary provision, may have a negative impact on families who are most in need. The Fund is a national provision, and acts as a safety net for benefit recipients who face exceptional essential expenditure which they cannot meet. The rationale is to create a more responsive, better targeted and relevant service.[55] Local authorities are expected to devise their own schemes for emergency support. The Government does not expect local authorities to manage loan schemes. This will effectively abolish the provision of crisis loans. There is a risk that this will drive more people to use high-cost lenders. The Government confirmed intention not to ring-fence funding or to impose any new duty on local authorities to provide assistance.[56] In the current economic climate, it is highly likely that some or all of the funds may be diverted into other local priorities, and a crucial financial safety net would disappear.

1.82 We are concerned that the cumulative impact of the Bill's provisions may lead to retrogression which is not justified by the factors set out in the General Comments of the UN Committees. We recommend that the Government consider what safeguards can be introduced to minimize this risk. For example, the Bill could be amended to allow payments intended for children to be labelled as such and be paid to the main carer.

Child poverty

1.83 The Bill amends the Child Poverty Act 2010 which imposes a duty on the Secretary of State to meet the child poverty targets set out in the Act by 2020. The Act contains a number of detailed mechanisms designed to ensure that the Secretary of State is assisted in the performance of his duty by an expert advisory Commission on Child Poverty and is accountable to Parliament for the Government's performance of the statutory duty to ensure that the child poverty targets are met. The Bill amends those mechanisms in a number of ways.

1.84 Most significantly, the Secretary of State's duty to produce annual progress reports to Parliament is repealed by the Bill.[57] Instead, the new Social Mobility and Child Poverty Commission, which will replace the Child Poverty Commission established by the 2010 Act, is required to publish annual reports assessing the progress made towards improving social mobility and reducing child poverty in the UK.[58] The Minister is required to lay these reports before Parliament.[59] The Bill also removes the obligation on the Secretary of State to request advice from the Commission and to have regard to that advice when developing the UK Child Poverty Strategy.[60]

1.85 The Government says that the aim of these changes to the Child Poverty Act 2010 is to "improve the accountability of Government in relation to eradicating child poverty, thus helping to meet UK obligations under the International Covenant on Economic and Social Rights, and the UN Convention on the Rights of the Child."[61] The new Commission will provide independent expert scrutiny of the Government's strategy for meeting the 2020 targets, and the removal of its advisory functions, the Government argues, will also improve ministerial accountability.[62]

1.86 We welcome the Government's avowed intention of improving ministerial accountability for the eradication of child poverty. Improving political accountability for progress towards the eradication of child poverty is in keeping with our view that in a parliamentary democracy it is the democratic branches of the state that should have primary responsibility for economic and social policy.

1.87 We are concerned, however, that the changes to the mechanisms of accountability in the Child Poverty Act 2010 may have the opposite effect to that which is intended, by reducing ministerial accountability to Parliament. We are particularly concerned by the removal of the requirement for the Secretary of State to provide an annual report to Parliament detailing progress towards the child poverty targets and towards implementing both the UK and devolved child poverty strategies. We acknowledge that Parliament will still be provided with annual reports assessing the progress made towards reducing child poverty in the UK, from the Social Mobility and Child Poverty Commission, but we are concerned that such reports to Parliament from independent commissions do not provide the same opportunity for holding a minister to account as a report to Parliament from the minister. In practice, such reports by expert bodies often do not lead to any questions being asked of the relevant Minister or any debate in Parliament.

1.88 Any change to the legal framework which has the potential to diminish ministerial accountability to Parliament for the reduction of child poverty requires the most careful scrutiny, particularly at a time when there is growing evidence that child poverty will in fact increase in the coming years and that the targets set by the 2010 Act are therefore increasingly unlikely to be met. We therefore recommend that the Bill be amended to require the Secretary of State to respond to the Commission's annual report to Parliament by way of a statement, and that the Government commit to providing an opportunity for Parliament to debate the Commission's report and the Minister's statement in response.

Other human rights issues

(1) CONTRACTING OUT

1.89 In relation to the functions which the Bill allows the Secretary of State to contract out, the Minister has indicated the Government's view that these are functions of a public nature. In a case where it is alleged that a contractor has acted contrary to the Human Rights Act, the Bill requires claims to be brought against the Secretary of State. The previous Committee expressed concern that, where contractors are providing services which amount to a public function for the purposes of the HRA 1998, individuals should be able to exercise remedies against them directly, as Parliament intended.

1.90 We have reported on a number of occasions on the scope of the Human Rights Act 1998 and the circumstances in which private sector entities, performing a public function, will be subject to the duty to act in a Convention-compatible way.[63] Legislation is urgently needed to resolve the existing uncertainty surrounding the meaning of public authority, putting beyond doubt, in statute, Parliament's original intention. In the meantime, we recommend that the Government produce clear and detailed guidance to relevant Government departments and agencies in order to ensure that all public authorities and relevant contractors understand the scope of their duties under the HRA.

(2) CONDITIONALITY AND DRUG AND ALCOHOL ADDICTION

1.91 The Bill provides for the repeal of certain provisions of the Welfare Reform Act 2009, which created powers to compel certain actions in relation to welfare claimants thought to be abusing drugs or alcohol. The predecessor Committee expressed significant concerns that these powers could lead to a disproportionate interference with the right to respect for private life and physical integrity (as protected by Article 8 ECHR), and were likely to deter individuals from seeking treatment for drug or alcohol addiction or drive drug and alcohol addicted people further into poverty.

1.92 The Minister informed the Committee that there are no current plans to use these mechanisms to mandate claimants to undertake drug testing or treatment. We very much welcome this assurance.

(3) INFORMATION SHARING

1.93 The Bill introduces various measures designed to simplify the sharing of information in relation to taxation and the administration of welfare benefits. The sharing of personal information provided by a person for one purpose (for example, medical information necessary to perform an assessment of their eligibility for benefits or information about education and work history or income, savings or capital) for another purpose engages the right to respect for personal information protected by Article 8 ECHR. The provisions in the Bill are very broad and would allow any information gathered by HMRC in connection with its functions to be shared with the Secretary of State—or any contractor working for the Secretary of State—for the purposes of their functions (or vice versa). Information can then be transmitted to third parties, but only with the consent of the body who initially held the information (i.e. the Secretary of State or HMRC).

1.94 The Minister clarified that the criminal offence of unauthorised disclosure of information in section 123 of the Social Security Administration Act will continue to apply. Strict data-sharing protocols and access controls are already in place in relation to data-sharing between the Departments under existing provisions. Memoranda of understanding and contracts are reviewed periodically and include full details of how any data must be stored and disposed of. The Department retains the right to test all aspects of data security and handling in order to secure compliance with both the Data Protection Act 1998 and the ECHR. These include a memorandum of understanding to which all local authorities must sign up. The Information Commissioner's Office comments have been fully taken into account. We welcome these assurances regarding the operation of the information-sharing regime.

1 Letter dated 20 July 2011 from the Chair to the Secretary of State. Back

2 Letter dated 26 September 2011, and accompanying written evidence, from the Secretary of State to the Chair. Back

3 http://www.parliament.uk/business/committees/committees-a-z/joint-select/human-rights-committee/leg-scru-2010-11/welfare-reform-act/ Back

4 See, for example, the Department of Work and Pensions White Paper, 21st Century Welfare (July 2010). Back

5 See, for example, International Covenant on Economic, Social and Cultural Rights, Article 6. Back

6 See e.g. UN Convention on the Rights of the Child, Article 27; International Covenanton Economic, Social and Cultural Rights, Article 11. Back

7 See, for example, our scrutiny reports on the Terrorist Asset Freezing Bill, the Protection of Freedoms Bill, the Armed Forces Bill and the Education Bill. Back

8 HL Bill 75-EN paras 740-767. Back

9 See, for example, the recent decision of the Grand Chamber in S.H. v Austria, Application no. 57813/00 (3 November 2011). Back

10 Institute of Fiscal Studies Child and Working Age Poverty 2010-2020 October 2011 Back

11 See, for example, the concerns expressed in the evidence of Scope. Back

12 Our predecessor Committee explained the legal status of the ICESCR in their report on the Covenant, see Twenty-first Report of 2003-04, The International Covenant on Economic Social and Cultural Rights, HL Paper 183, HC 1188, paras 16-17. Back