Unpacking Social Security: Examining Rights, Regulations, and Realities

Introduction

Social security encompasses various elements, including economic and social aspects.This is the cause and thesolution to the problem associated with the right to social security. The right to social security is governed by international laws, conventions and treaties, such as European Social Charter, Universal Declaration of Human Rights (UDHR), and national measures such as the UK Social Security Administration Act 1992. This essay aims to address components of this right, including right to social assistance and core questions related to the meaning and application of this right under the relevant EU law, the UK law and international laws. If students need more clarification on this particular topic, they can seek expert guidance from professionals in the field of UK dissertation help. This essay will focus on the theoretical aspects of this right and its enforceability given the interjection between EU,the UK and international jurisdictions. The literature deduction will be assessed on practice based perspective exploring social security and assistance by referring to reports and findings by independent, EU, national authorities or agencies in order to establish the level of efficiency of the implementation of international and national laws. Given the existing rules and the reported facts, some challenges may arise, which will be described in the essay. This essay will try to determine any gap and complexities and find opportunities to create prospective action to shape the European and international laws. On a concluding note, this essay will attempt to bring some new insight in viewing the right to social security from all relevant social, economic and political perspectives.

Is there sufficient enforceability of right to social security under the International, the UK and EU laws?

The main objective of article ---- is to determine whether the existing international, the UK and EU laws achieve the purpose of the right to social security. This right aims to achieve certain social purposes, including prevention of destitution through application of means test. This test , creates a standard mark such as the poverty line below which living conditions must not fall; additional resources such as payment benefits to disabled to meet care facilities; substitute income that is short term benefits to cover situations such as period of sickness; industrial discipline like withholding benefits to unwilling persons who left employment without cause; social coercion including requirement to receive skill based training to be employable and to receive benefits; and social responsibility enforced on individual as precondition to social benefits.

UDHR Article 25 forms the basis of international agreements that the UK is signatory to.Member countries must take steps through optimal use of its resources to progressively meet demands of economic and social rights, including the right to social security.A dualist legal system is adopted by the UK where any treaties to be effective in its domestic jurisdiction have to be incorporated into domestic legislation.The UK has accepted treaty obligations arising out of ICESCR, European Social Charter and the Convention of the ILO. Article 9 of the ISESCR is particularly relevant here as it provides the right to social security.The UK law on social security regulates delivery of benefits, which could be either in cash, such as job seeker’s allowance, personal independence payment or employment and support allowance, or in kind, such as free or cost reduced goods or services including free dental care or eye care tokens.Accordingly, social security is a response to wider aspiration for security. Therefore, aiming to provide confidence to people that their lives and quality of life will not be diminished by any economic or social eventuality. The aim of giving confidence to those in need was reflected in the case of R v Secretary of State for the Home Department ex parte Q and other.The Court of Appeal observed that the refusal by the Secretary to give support or permission to work into a destitute asylum seeker engages Article 9 and other rights such as right to work under Article 6 and the right to adequate living under Article 11.

Stephen Hardy, Social Security Law in the United Kingdom (3rd Ed. Kluwer International B.V. 2019).
Joint Committee on Human Rights, International Covenant on Economic, Social and Cultural Rights, Twenty-First Report of Session 20003-2004 (Stationary Office Ltd 2004).

The European Social Charterincludes Articles 12 and 13 which govern rights in social security and social assistance spheres. Article 13 provides for medical assistance as an individual right. There is a ‘margin of discretion’ that member states adhere to assess situations, particularly from economic and social aspects, and accordingly they are allowed to adopt measures to that effect. In this regard, courts consider the existing economic and social context in the concerned jurisdiction.For example, in Kovachev v Bulgaria, the Commission found a violation of right to fair trial provided under European Social Charter, Article 6 by application of the 1992 Social Welfare Regulations which did not provide for referral to courts of disputes around social benefits and made all the disputes a matter for the administrative authorities. ILO follows a right based approach, which strengthens normative case for social policy, but particularly social protection and places a clear-cut obligation on states to guarantee social protection. Moreover, social protection includes social assistance in the form of tax-financed benefits to those persons with low incomes.Similar provisions are also found in the UK Social Security Administration Act 1992 for instance s.12 relates to social funds and s.13 covers child benefits inter alia. All these provisions are also in line with civil rights provided by ICESCR that offers several economic, social and cultural rights for example, the right to work and adequate standard of living amongst others.

Article 22 of the UDHR provides actual dimensions to the right of social security, which are important to a person’s dignity and to free development of his personality. Despite these provisions, the legal and enforcement framework around this right seems to be complex if one compares them with the figures. ILO reported that statutory social insurance such as pensions and healthcare in low-income countries cover only 10% of the working population including their dependents.This is a flaw arising out the right based approach to the right of social security. The real question to be determined is whether people have access or are able to avail enforcement mechanisms to enforce this right. The European Code of Social Security, the additional Protocol and the Revised Code serve as the Council of Europe’s basic standard-setting tools regarding social security. However, they do not generally create individual rights which can be directly invoked before national courts and this is where the problem lies. Instead they create an international system of supervision to measure parties’ performance of their obligations and whether they are taking rectification measures. In such situation, whether a relevant enforcement provision, such as Article 6(1), right to fair trial, as incorporated in the UK Human Rights Act 1998 could be invoked in social security concerns. It is apparent that interpretation of concept of civil rights cannot be confined to national jurisdiction. Social security allowances must be covered under this Article 6(1) as rights of a civil nature. In doing so, assessment has to be made between the public-law and private-law aspects of the rights to determine their civil nature. The EU courts have admitted social security cases in its jurisdictions. For instance, in Feldbrugge v theNetherlandswhere the court dealt with issue of the right to sickness benefit. There is also a procedural protection being afforded by the Court which covers social assistance in the courts’ judgments.For instance, in the case of Salesi v Italywhich concerned a social assistance benefit for families caring at home. Individuals are given access to independent and impartial tribunal.This was seen in Stec v United Kingdomconcerning sex discrimination in relation the award of reduced earnings allowance where the concerned court relinquish its jurisdiction in the case to the Grand Chamber.

Supra, (n. 1).
ILO Publication, Into the Twenty-First Century: The Development of Social Security (Geneve, ILO 1984) 19.
[2003] EWCA Civ 364.
ibid.
Gisella Gori, ‘Domestic Enforcement of the European Social Charter: the way forward’ in G. deBurca and B. de Witte, Social Rights in Europe (Oxford University Press 2005) 83.
Rasmussen v Denmark, judgment of 28 November 1984 (Application No. 8777/79).
Kovachev v Bulgaria, report of the Commission, 28 October 1997 (Application No. 29303/95).
IliasBantekas and Lutz Oette, International Human Rights Law and Practice (2nd edition, Cambridge University Press 2016) 19.
Supra, (n 12).

Considering the literature on social security discussed above, the concept of social security does not provide a concrete framework, but a broad one. This may have led to creating a complex legal and enforcement framework around the right to social security forming a barrier for people to access enforcement mechanisms and enforce their rights. The laws are supervisory and do not generally create individual rights in large aspect, which would have otherwise made it possible to directly invoked before national courts. One positive provision applicable across the international, EU andthe UK laws is the right to fair trial. This right seems to be the only strong law that could be effectively used to enforce the right to social security. However, considering the economic condition of people at disadvantaged positions, this may also not prove to be effective as they may not be able to access this right. The next section will assess this literature deduction on aa practice based exploring social security and assistance.

Are benefits under the right to social security provided under the existing laws passed on to those in need?

Human right concepts and rule focus on providing equal rights to every person and reducing discrimination andoppression. It serves as a yardstick to determine efficiency of economic measures in place in respect ofimplementation and enforcement of right to social security. The current approach to right to social security may include equitable allocation of resources, which requires economic analysis on how resources can be distributed between different parties.. However, the implementation of human rights is more focused on social, cultural and political factors, such as discrimination based on race, gender, religion or language, rather than economic factors, such as equitable distribution of resources, which is what is required in implementing right to social security.. The factor preventing effective enforcement of social security right stems from the failure to implement and enforce legal obligations under both EU and international lawsl. This defines the success or failure of policies towards social security.

Supra,(n.9).
App. No. 8562/79, 8 Eur. H.R. Rep. 425 (1986).
13023/87 [1993] ECHR 14.
Supra,(n.11).
(2006) 43 E.H.R.R. 47; 20 B.H.R.C. 348.
Bard A. Andreassen, Stephen P. Marks and Arjun Sengupta, Freedom from poverty as a human right: economic perspectives (UNESCO Publishing, 2010).

Since 2010, there have been unprecedented tax and social security cuts as per the 2016 OBR, Welfare Trends Report. This breaches treaty and convention protocols providing for right to social security as they are not justifiable and proportionate and are therefore, discriminate against people in disadvantaged positions. As per the 2018 EHRC report, tax and welfare cuts produced a regressive effect on social protection where the largest cash gains due to revised income tax and national insurance contributionswere enjoyed by the wealthiest in society.In 2013, as part of the Welfare Reform Act 2012, the UK government introduced “benefit cap” on total welfare benefits payable to families with no one in employment. Couples with or without children or single-parents with childrenwere given £500 per week or £26,000 per annum. However, the Children’s Society, stated that it would affect children disproportionately, which was evident in the statistical analyses of government welfare data. 94% of the 76,200 households sampled between 2013 and May 2016 were children.Regarding the social welfare and assistance schemes, the 2018 report by the European Committee of Social Rights provides a mix report. The 1961 European Social Charter Article 12, right to social security,it as an individual right recognised by the European Committee of Social Rights.The Committee concluded that United Kingdom does not conformity with requirements under Article 12(1). The report found inadequacy in the level of the Statutory Sick Pay (SSP), the Employment Support Allowance (ESA), long-term incapacity benefitsand unemployment benefits. Although, regarding Article 13, right to social and medical assistance, the report found conformity.

The most reasonable explanation towards the partial success or failure of an enforceable framework is that arguably the practices, problems and potential solutions have mostly been directed towards the individuals instead of social determinants.Such determinants may be income levels, security of income, prices of goods, cost of transport, inter alia. There has to be structural determinants, directing towards relevant laws or polices.For instance, the social and policy circumstances must be reviewed as to the factors inhibiting poor households from receiving sufficient food. Accordingly, there must be proportionate state and civil interventions. In their absence, key structural aspects including income sufficiency are broadly ignored, and anti-poverty strategies are frequently implemented without having regard to effects on food outcomes.

Ibid.
Bard A. Andreassen, Stephen P. Marks and Arjun Sengupta, Freedom from poverty as a human right: economic perspectives (UNESCO Publishing, 2010).
Supra,(n.8).
Elizabeth A. Dowler and Deirdre O’Connor, ‘Rights-based approaches to addressing food poverty and food insecurity in Ireland and UK’ (2012) 74(1) Social science & medicine 44-51.
Hannah Lambie-Mumford, Hungry Britain: The rise of food charity (Policy Press 2017).

Challenges and Prospects

As observed in the previous sections, the progressive attempt to give people access to social securityspecifically social assistance, faces potential and actual challenges to give enforceable rights. One area of complexity is that poverty could be reduced without regarding human rights such as employment rights. This in turn does not mitigate inequalities, which again goes against the principle of social security.A progressive action that accounts for economic and social rights should be in order. Priority decisions must be taken considering economic, constitutional and political decisions. For example, an appropriate resource allocation decision between expenditure on defence and social protection. It is for this reason that the poor are entitled to social assistance. There should not be restrictive criteria to give access to social benefit. Judicial activism is the need of the hour to meet difficulties of defining the broad concept of human rights, including right to social security.

Certain gaps important disconnect may exist between the existing rules and policies around human rights and the practice. The means-test mentioned earlier may include imposition of social responsibility on individual as precondition to social benefits. The question in this regard is how a person in a disadvantage situation would fulfil this responsibility? This precondition conforms to the problem of directing the solution towards the individuals instead of social determinants, as discussed above and therefore,will lead to ignoring key structural aspects. Prospective solution could follow policy prioritisation followed with adequate minimum income protection, as is highly prioritised in the 2010 EU2020 Strategy. This strategy presents key structural aspects such as financial poverty risk in regard to share of households’vis-a-vis a determinant net income; level of material deprivation in regard to inability to afford basic items; and households with low work intensity regarding unemployed members. This strategy considers both social and individuals’ aspects while taking policy decisions.

Relevant policies must ensure welfare benefits are not affected by any social and economic eventualities, such as inflation and rising living costs. One situation is regarding issues of pensions and future sustainability of the ageing population. New developments in the UK look towards active ageing policy highlighting older people as economic and social resourcesand enable them participation in the society.However, the fact is that economic or social eventuality is still affecting right to social security.The challenge is that the legal framework is too vast, complex or expensive for an ordinary citizen to enforce their rights. On one hand, there are cases where the rights have been enforced. On the other, it cannot be said to be successful or satisfactory given the abundance gap in between the law and the practical reality on the ground.

Supra,(n.25).
A.M.C. Asquierdo and J.R.C. Costa, ‘The Right to Have Rights: Social Assistance Rights from a Judicial Activism Perspective’ in Junior M. Serau and J Caetano Costa (eds), Assistance Benefits in Brazil (Springer 2016).
Ibid.
Supra,(n.25).
Natascha Van Mechelen and Sarah Marchal, Struggle for life: social assistance benefits, 1992–2009."Minimum income protection in flux (Palgrave Macmillan 2013) 28-53.
Liam Foster, ‘Active ageing, pensions and retirement in the UK’ (2018) 11(2) Journal of population ageing 117-132.
Ibid.
This is seen in many reports discussed above.

The challenges could be the continuing dimensions of social security against the background of slowing economies, which may stress the economic resources of the states and prevent them from guaranteeing high levels of social security rights. The prospective solution lies in understanding this problem and defining each components of the problem, which can start by defining social determinants.Within the ECHR jurisprudence the challenge for enforcing this right may lie in the use of the doctrine of ‘margin of appreciation’ or ‘margin of discretion.’ This allows states to use national conditions as a ground to deviate from the rights under the ECHR,which may be related to national security, morality, religious feelings. ECtHR has also linked margin of appreciation to economic or social conditions of the state.

Conclusion

The existing international, EU and the UK laws do not create specific framework to facilitate enforcement of right to social security. The concept of social security is not confided to social perspective but increasing need economic consideration. Also, the apparent complexity of the existing legal and enforcement framework is acting as the barrier for people to access enforcement mechanisms. All these laws should create individual rights enabling people to enforce their rights in national courts. The right to fair trial will play an important role in this regard. However, to imbibe confidence in people, specific economic measures should be in place.

The apparent lack of a concrete legal framework and sufficient economic measures in respect t o enforceability of the right might have led to inability of people in disadvantage positions to access the benefits of the right to social security. This is reflected in the reports and findings from EU and the UK agencies mentioned in this article. The presence of the problem around resource allocation, welfare benefits and inability of the UK to conform to certain norms of the EU regarding the right to social security are all proof of the existing flaw in the legal frameworks. Policies should have been directed towards individual determinants, which are mostly economic in nature, such as income levels and security, prices of goods, cost of transport, etc.

Continuing challenges will exist unless a concrete definition of right to social security is arrived at. This should be supported by progressive legislative and enforcement mechanisms, which will mitigate inequalities. Measures such as the adequate minimum income protection, as is highly prioritised in the 2010 EU2020 Strategy, may play a great role in this regard.

Seen in the 2010 EU2020 Strategy above.
George Letsas, ‘Two Concepts of the Margin of Appreciation’ (2006) 4 Oxford Journal of Legal Studies 705.

. Social security has become a tool that is wrapped around in complexities arising from conflict between social and economic causes. The current legal framework fails to understand the concept, more specifically the problem, those in need and social and economic aspects of the concept. The non-mandatory nature of international treaty and convention provisions around concerned rights with precedence given to national authorities to implement or enforce is causing difficulty in the access of the right.

It is not very clear in this conclusion how you answered the question. Need to say that in part A you looked at a critical theoretical perspective and ……..then in part b you focussed on the right in practice and found………

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