Legal Protection Against Destitution in the UK: the Case for a Right to a Subsistence Minimum
| Published date | 01 March 2023 |
| Author | Mark Simpson,Gráinne McKeever,Ciara Fitzpatrick |
| Date | 01 March 2023 |
| DOI | http://doi.org/10.1111/1468-2230.12773 |
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Modern Law Review
DOI:10.1111/1468-2230.12773
Legal Protection Against Destitution in the UK: the
Case for a Right to a Subsistence Minimum
Mark Simpson,∗Gráinne McKeever†and Ciara Fitzpatrick‡
In a 2003 Supreme Court judgment, LordHomann argued that in the absence of a guaranteed
minimum standard of living, many other r ights are reduced to ‘a mockery’. Given research
ndings that 2.4 million UK residents experienced destitution in 2019, this article considers
whether a social oor exists in law and the implications of its absence or weakness for the
standard of human rights protection in the UK. The common law, social rights treaties and
the European Convention on Human Rights can each play a role in identifying a minimum
standard of living,but with variable precision, generosity and enforceability – and subject to the
sovereign legislature setting its ownsocial oor, including one that may render people destitute.
With an analysis of the case law revealing clear weaknesses in protection against destitution,the
authors argue that a specic statutory duty is required to address this failure of rights protection.
INTRODUCTION
Research published by the Joseph Rowntree Foundation (JRF) since 2016 has
provided a consensual denition of destitution (that is, one developed with
and approved by members of the public),1and measured the extent to which
destitution,by this denition, exists in the UK.2The most recent research found
that during 2019 at least 2.4 million UK residents experienced destitution – that
is, they were unable to meet their most basic needs for shelter, food, heat, light,
clothing and hygiene from their own resourcesfor themselves. This article looks
behind this headline to consider the impact of destitution on people’s human
rights and explores the extent to which the persistence of extreme poverty
in a modern welfare state ought to be regarded as a failure of human rights
protection. In Lord Homan’s view: ‘Human rights are the rights essential to
∗Senior Lecturer, School of Law,Ulster University.
†Professor of Law and Social Justice, School of Law,Ulster University.
‡Lecturer,School of Law,Ulster University.This article draws on research funded by the Legal Educa-
tion Foundation and Joseph Rowntree Foundation.The authors would like to thank Michael Adler,
David Webster and the MLR’sanonymous reviewers for their comments on earlier drafts, which have
helped make it a better piece of work.
1 For critical discussion of the consensual method, see the various articles in (1987) 16 Journal of
Social Policy.
2 Suzanne Fitzpatr ick, Glen Bramley, Filip Sosenko, Janice Blenkinsopp, Sarah Johnsen, Mandy
Littlewood,Gina Netto and Beth Watts, Destitution in the UK (York:Joseph Rowntree Founda-
tion,2016); Suzanne Fitzpatrick, Glen Bramley,Filip Sosenko,Janice Blenkinsopp,Sarah Johnsen,
Mandy Littlewood,Gina Netto and Beth Watts,Destitution in the UK 2018 (York:Joseph Rown-
tree Foundation, 2018); Suzanne Fitzpatrick, Glen Bramley, Janice Blenkinsopp, Jenny Wood,
Filip Sosenko, Mandy Littlewood, Sarah Johnsen, Beth Watts,Morag Treanor and Jill McIntyre,
Destitution in the UK 2020 (York: Joseph Rowntree Foundation, 2020).
© 2022 The Authors. The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2023) 86(2) MLR 465–497
This is an open access article under the terms of the Creative Commons Attribution-NonCommercial License,which per mits use,distri-
bution and reproduction in anymedium, provided the original work is properly cited and is not used for commercial purposes.
Legal Protection Against Destitution in the UK
the life and dignity of the individual in a democratic society … I think it is well
arguable that human rights include the right to a minimum standard of living,
without which many of the other rights would be a mockery.’3It is argued here
that the experience of destitution may in itself represent a direct infringement
of certain human rights and has potential to fatally under mine the enjoyment
of other rights.
It is possible to point to specic rights in international and European treaties
that seem to confer protection against destitution: the rights to social security
and to an adequate standard of living in Articles 9 and 11 of the International
Covenant on Economic, Social and Cultural Rights (ICESCR)4and the right
to social assistance in Article 13 of the European Social Charter (ESC).5How-
ever, each of these instruments carries limited weight in the UK legal system
(see discussion below). Failure to take instruments for the protection of social
and economic rights as seriously as those for protecting civil and political rights
could itself be termed a weakness of the UK’s approach to human rights pro-
tection.6Accordingly, there is no clearly expressed obligation on the state to
ensure an adequate standard of living or otherwise avoid causing destitution.
What we might look for, and have on occasion seen, is the interpretation of
human rights that have been incorporated into UK law or the application of
common law principles in a way that recognises the need to avoid or mitigate
against the experience of destitution.7Lord Homann’s words point to a need
to consider whether destitution reects, or brings about, a failure of the state’s
human rights regime in its own terms. If destitution is demonstrably a threat to
the rights protected by the European Convention on Human Rights (ECHR),
then it should not be necessary to rely on the dramatic and (outside Scotland)
currently unlikely step of greater social rights protection being incorporated
into domestic law to establish that public bodies are subject to a duty to protect
against it.8
This article aims to develop an understanding of destitution as a socio-legal
problem,to which law has potential to for m part of the solution. In doing so, it
3Matthews vMinistry of Defence [2003] UKHL 4; [2003] 2 WLR 435 at [26] per Lord Homann.
This was a supporting judgment to the leading opinion in the case,delivered by Lord Bingham.
4 International Covenant on Economic,Social and Cultural Rights (General Assembly Resolution
2200A (XXI), 16 December 1966).
5 European Social Charter (Turin, 18 October 1961).
6 Keith Ewing, ‘The Unbalanced Constitution’ in Tom Campbell, Keith Ewing and Adam
Tomkins, Sceptical Essays on Human Rights (Oxford:OUP, 2001).
7 See discussion below and the dissenting judgments in R on the application of SG vSecretary of State
for Work and Pensions [2015] UKSC 16;[2015] 1 WLR 1449.
8 The United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill
was carried unanimously through the Scottish Parliament in March 2021,although the Supreme
Court has ruled that this Bill is beyond the legislative competence of the Scottish Parliament,as
set out in Scotland Act 1998, ss 29,30 and 33: Reference by the Attorney General and the Advocate
General for Scotland – United Nations Convention on the Rights of the Child (Incorporation) (Scotland)
Bill;Reference by the Attorney General and the Advocate General for Scotland – European Charter of Local
Self Government (Incorporation) (Scotland) Bill [2021] UKSC 42; [2021] 1 WLR 5106. However,
the devolution of social security competences to Scotland has allowed the embedding of the
principles of dignity and respect into the Social Security (Scotland) Act 2018, which denes
social secur ity as a human right: see Mark Simpson, Gráinne McKeever and Ann Marie Gray,
‘From Principles to Practice: Social Security in the Scottish Laboratory of Democracy’ (2019)
26 JSSL 13.
466 © 2022 The Authors. The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2023) 86(2) MLR 465–497
Mark Simpson, Gráinne McKeever and Ciara Fitzpatrick
rst outlines the increased academic interest in the impact of austerity measures
adopted in the wake of the 2008 economic crisis,9epitomised by the landmark
destitution studies commissioned and published by the Joseph Rowntree Foun-
dation.10 It then moves from considering the work of social scientists in under-
standing destitution to a rigorous examination of law’s contribution to dening,
preventing or mitigating destitution. Various pieces of legislation exist that in
some fashion dene destitution (chiey,the Immigration and Asylum Act 1999
and related secondary legislation), confer powers upon public authorities that
could be used to relieve or address the consequences of extreme poverty (in-
cluding the Children Act 1989) or might form the basis of an obligation on the
state to guarantee a social minimum (Human Rights Act 1998). However,these
denitions, powers and duties can be very general in nature and it is necessary
to turn to case law for a fuller understanding of the extent to which causing or
failing to relieve destitution might breach legal standards in the UK.
To that end, the authors conducted a systematic review of UK case law in
search of a basis for a legal denition of destitution. The review draws on an
original dataset of 595 domestic UK judgments that have included consid-
eration of destitution and related issues of hardship and benet sanctions. This
consists predominantly of immigration and asylum-related cases since 1999 and
social security cases since 1996, after which sanctions became an everyday fea-
ture of the social security vocabulary. By showing how the courts have applied
what can be very general statutory provisions in light of the state’s overarching
human rights and common law obligations, these cases illuminate the extent to
which UK law imposes a duty on public authorities to protect against extreme
poverty or its consequences. To a large extent,they reveal the weakness of lit-
igation (and therefore of the statutory and human rights bases on which cases
are brought) in shoring up the social and economic rights of individuals facing
the most precarious and desperate of circumstances. The review subsequently
looked further back in time to consider the extent to which earlier social as-
sistance regimes – national assistance and its successor supplementary benet,
which in turn was replaced by income support and subsequently universal credit
– may have provided stronger protection against destitution, whether on paper
or in practice.
Overall, the article nds that, as cur rently applied, common law,social rights
treaties (to the limited extent that these are recognised as ‘law’ in the UK) and
the ECHR collectively provide inadequate protection to those in or facing des-
titution. This paucity of provision forms a barrier to the enjoyment of other
rights. The article acknowledges the value and ambition of human rights, but
our analysis exposes their limitations in the face of 2.4 million people expe-
riencing destitution, and the need to provide a bridge between ambition and
9 Michael Adler,Cruel, Inhuman or Degrading Treatment? Benet Sanctions in the UK (Cham:Palgrave,
2018); Jamie Redman and Del Roy Fletcher, ‘Violent Bureaucracy: a Critical Analysis of the
British Public Employment Ser vice’ (2022) 42 CSP 306.
10 See Fitzpatrick and others (2016), n 2 above;Fitzpatrick and other s (2018),n 2 above; Gráinne
McKeever,Mark Simpson and Ciara Fitzpatrick, Destitution and Paths to Justice (London: Legal
Education Foundation/York:Joseph Rowntree Foundation, 2018). See also Welfare Condition-
ality,Final Findings Report: Welfare Conditionality Project 2013-18 (York:Welfare Conditionality,
2018).
© 2022 The Authors. The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2023) 86(2) MLR 465–497 467
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