Briefing on Article 9 Right to Social Security for ICESCR exam 8 June 2016

Briefing by the Right to Work: Right to Welfare Group on the Northern Ireland Executive’s compliance with ICESCR’s Article 9 on the Right to Social Security.

#PEOPLESPROPOSAL

Participation and the Practice of Rights (PPR) 6A Albert Street Belfast BT12 4HQ Tel: 02890313315 Email: sara@pprproject.org www.pprproject.org

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Human Rights Concerns Article 9 of ICESCR states that the right to social security can only be interfered with in very narrow and clearly defined circumstances, which are based on grounds that are reasonable, subject to due process and provided for in international law.

It is the firmly held view of the R2W group that the current Northern Ireland (and UK) social security sanctions regime of ‘sanction first, investigate later’ constitutes a breach of Article 9, as elucidated

by General Comment No 19. There is a clear failure to adhere to the five steps set out by the Committee on Economic, Social and Cultural Rights which the state party is required to undertake prior to any interference with an individual’s right to social security. There are also potential breaches of articles 2, 11 and 12 of ICESCR. Furthermore, the procedural failings which exist in respect of the assessment process for the Employment and Support Allowance ( a social security benefit for people unable to work due to illness or disability) also constitute a failure to adhere to the five steps detailed in General Comment No 19.

Suggested Questions The Committee may wish to ask the Westminster government and the NI Executive how they will ensure that before any action is carried out by it or a third party that interferes with an individual’s right to social security, that it is fully compatible with Covenant provisions and specifically with the protections laid out in General Comment No 19 paragraph 78 and articulated in the People’s Proposal?

In order to ensure that claimants who have been sanctioned are not placed at risk of genuine hardship or destitution, will the Westminster government and the NI Executive commit to placing ‘a stay’ on the implementation of any sanction decision until such time as a full investigation affording due process and proper impact assessment, including any appeals proceedings, are completed?

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Context The Right to Work: Right to Welfare (R2W) group is a group of unemployed people from Northern Ireland which uses human rights based approaches to campaign for the Northern Ireland Executive’s compliance with Articles 6 and 9 of ICESCR. The group has identified the lack of due process in the social security system, including in relation to the use of benefit sanctions, as a key human rights issue in Northern Ireland that arises out of the Article 9 provisions. The group is supported in their work

by PPR, a human rights organisation.

The work of the group has been commended by the (former) United Nations Special Rapporteur on Extreme Poverty and Human Rights, Ms. Magdalena Sepúlveda Carmona: “ the important work being done by the Right to Work: Right to Welfare group in Belfast, Northern Ireland to hold the government accountable…is crucial and should be praised as a promising practice to be followed”.

While social security policy is technically devolved from the Westminster government to the Northern Ireland Executive, the principle of ‘parity’ means that Northern Ireland follows policy set by Westminster to ensure consistency across the UK. Recent legislative changes have introduced a harsher, more widespread benefit sanction regime than had existed previously, with the potential for social security benefits to be withdrawn for up to 18 months. The sanctions regime is now also applied to previously exempt groups such as single parents and people with disabilities. More restrictive qualifying assessments for various social security entitlements have also been introduced, again mirroring the Westminster social security system.

More and more people are being caught in the punitive sanctions ‘net’ – in one year alone (October 2014- October 2015) people in Northern Ireland in receipt of Job Seekers Allowance or Employment and Support Allowance were sanctioned a total of 21,386 times. Human rights monitoring by the R2W group at social security offices found that 58% of those surveyed had their social security entitlement stopped or reduced in the previous 6 months due to a sanction or benefit change.

Social Security Sanctions The R2W group has gathered substantial evidence that the five steps set out by the Committee are not being adhered to by the Northern Ireland Executive.

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Timely and full disclosure of information on the proposed measures and reasonable notice of proposed actions: Respondents to the R2W group’s survey report only becoming aware of being sanctioned when they go to make a withdrawal from an electronic cash machine and realise that their benefits have not been transferred into their accounts.

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An opportunity for genuine consultation with those affected : Individuals in receipt of benefits do not have an opportunity to avail of representation or a formal hearing, where they can either deny the alleged breach of conditionality or argue ‘good cause’ for any breach, prior to the decision being made to stop their payments. Instead, Decision Makers rely solely on evidence provided by the Social Security Agency or a private work programme provider.

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Legal recourse and remedies for those affected and legal assistance in obtaining legal remedies: 84% of people surveyed by the R2W group stated that they did not feel they were given sufficient information on their right to appeal.

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The failure by the NI Executive to assess the human rights impact of a decision to sanction means that they cannot in effect ensure that an individual is not ‘deprived of the minimum level of benefits’ as defined in paragraph 59(a) of General Comment No 19.

ESA Work Capability Assessments Employment and Support Allowance (ESA) is conditional upon a medical assessment called the Work Capability Assessment, conducted by third party private providers on behalf of the state. It has been widely criticised and retains little credibility. A 2015 study in the Journal of Epidemiology and Community Health claimed that the areas of England with the greatest use of the assessments had also seen the sharpest rise in reported suicides, mental health issues, and antidepressant prescribing.

The R2W group identified the following key procedural failings with the assessment process which subvert due process, in particular in respect to the right to information and transparency.

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A set of ‘descriptors’ form the basis of the medical assessment – however these are not seen by the claimant or their GP , nor are they made aware of the evidential threshold required to meet these descriptors.

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Primacy is given to the opinion of a privately employed health care professional on the basis of a 60 minute interview over the professional opinion of the claimant’s GP.

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Additional, independent medical files or assessments, which could be used as evidence of the claimant’s capacity to work or not, cannot be accessed without incurring financial cost to the claimant.

The People’s Proposal – Realising the Right to Social Security In response to the complete failure of both the benefit sanctions regime and the work capability assessment process to comply with international human rights standards as set out in ICESCR, the R2W group has developed The People’s Proposal. This set of proposals is directly informed by the Economic, Social and Cultural Rights Committee’s General Comment No 19 (paragraph 78) and 4

the specific steps the state party is required to undertake prior to any interference with an individual’s right to social security.

It outlines a step by step investigation and disciplinary process which guarantees: right of information, right to representation, right to timeliness of process, presumption of innocence and transparent decision making. In effect it demonstrates how paragraph 78 of the Committee’s General Comment No 19 can be applied to a particular social security system to ensure human rights compliance within all elements and at all stages of the system. As such it can have direct application to the social security systems in operation in the other UK jurisdictions, given the application of the parity principle.

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