The content and potential of the right to social assistance in light of Article 13 of the European Social Charter
| Author | María Dalli |
| DOI | 10.1177/1388262720908695 |
| Published date | 01 March 2020 |
| Date | 01 March 2020 |
| Subject Matter | Articles |
EJSS
Article
European Journal of Social Security
2020, Vol. 22(1) 3–23
The content and potential of
ª The Author(s) 2020
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the right to social assistance
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DOI: 10.1177/1388262720908695
in light of Article 13 of the
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European Social Charter
Mar´ıa Dalli
Human Rights Institute, University of Valencia, Valencia, Spain
Abstract
This article explores the current development of the right to social assistance as well as its
potential for improving income support policies. Focusing on Article 13 of the European Social
Charter (ESC), it aims to shed light on the content of such provision by identifying a list of
comprehensive defining standards from the monitoring activity conducted by the European
Committee of Social Rights (ECSR). Secondly, it asks whether the right can effectively enhance
access to social assistance in practice by studying the implementation of the right in two national
cases, the UK and Spain. The article concludes that Article 13 ESC imposes clear obligations on
States Parties regarding aspects of the implementation of assistance schemes, such as the level of
assistance and the right to appeal. Nevertheless, practical aspects of implementation should be
taken into account for the effective realisation of the right. The ESC provisions, as well as the
ECSR’s Conclusions, should be enforced by States at the national level. Furthermore, the standards
developed by the ECSR for Article 13 can be complemented by recommendations currently
suggested by civil society, such as the increased flexibility of activation measures for households
with parenting duties, and the splitting of payments to achieve financial independence.
Keywords
Social assistance, social rights, income support, social security, European Social Charter
1. Introduction
Social assistance (SA) and social insurance (SI) are the two main types of social protection for
households. While social insurance benefits are contributory-based, social assistance benefits are
needs-based benefits which are accessible after a means test. Social assistance is thus conceived as
Corresponding author:
Dr. Mar´ıa Dalli, Postdoctoral Researcher, Human Rights Institute, University of Valencia, Serpis 29, 46022, Valencia, Spain.
E-mail: maria.a.dalli@uv.es
4
European Journal of Social Security 22(1)
cash transfers to households outside of any social insurance scheme or where social insurance
benefits are not sufficient to cover basic needs.1 Provisions regarding subsistence guarantees
usually exist in national constitutions or legislation, normally as part of a broader right to social
security.2 The right to social assistance has also been recognised in international human rights
instruments. In the United Nations, texts such as the Universal Declaration of Human Rights
(Articles 22 and 25) and the International Covenant on Economic, Social and Cultural Rights
(Articles 9 and 11) contain provisions regarding the right to social security and the right to an
adequate standard of living, which implicitly include recognition of SA. At the European level, the
right to social assistance has been explicitly recognised in Article 13 of the European Social
Charter (ESC).
The right to social assistance has thus been recognised in international and regional human
rights frameworks, either explicitly or implicitly. Nevertheless, the normative content of such a
right is still unclear as far as specific standards that can guide States in the implementation and
design of assistance schemes are concerned. This is in addition to the problems in practice with
regard to the recognition and maintenance of SA benefits for people in need. The recognition of
income support often involves the exercise of discretion and there are important administrative
barriers in the decision-making processes of social welfare applications.3 It has also been argued
that a citizen who claims the right to social assistance is in practice asking decision-makers for
financial protection.4 Moreover, a number of access restrictions exist. This article follows on from
previous analytical work in which access restrictions on income support for groups such as
jobseekers and economically inactive migrants were identified from a study of regulations in four
European countries.5
The main aims of this article are thus to contribute to clarifying the precise normative content of
the right to social assistance as well as to reflect on its practical implications. Regarding the first
objective, the article takes into account the relevant international and regional human rights
frameworks and then focuses more particularly on Article 13 of the European Social Charter
(ESC). The content of the right to social assistance is examined in terms of the interpretation of
Article 13 ESC by the European Committee of Social Rights (hereafter, ECSR), from which it is
possible to identify a list of comprehensive defining standards. ECSR monitoring has a high level
of precision which challenges the conception of vagueness with regards to the content of social
rights, as has already been noted.6 The choice of this focus on Article 13 ESC is justified since it
has hardly been the subject of any attention to date.7 In a recent article by Vonk and Olivier, the
authors note the lack of a separate literature on the right to social assistance and provide an
overview of its recognition from global, regional and national perspectives.8
1. OECD (2019)
2. Vonk and Olivier (2019).
3. O’Brien (2017).
4. Panican and Ulmestig (2016: 484).
5. Dalli (2019).
6. O’Cinneide (2018: 286).
7. National approaches on the right to social assistance exist, for example in South Africa: Liebenberg (2017). Connected
rights such as the right to social security have clearly received more attention in the literature: see, for example, Riedel
(2007a) and Heredero (2009). Human rights approaches to social protection have also been suggested: see, for example,
Sep´ulveda and Nyst (2012) and Van Ginneken (2009).
8. Vonk and Olivier, n. 2 above.
Dalli
5
Regarding the second objective, the article explores the potential of the right to social
assistance to enhance access to income support in practice by focusing on the implementation
of the right in two national contexts, the United Kingdom (UK) and Spain. In this regard, it has
been argued that there is a need to progress from a court-centred approach in human rights
studies towards the analysis of which policies allow for the realisation of human rights.9 The
countries chosen for analysis have different SA regimes
while the UK has recently moved
towards a more integrated system through the implementation of Universal Credit (UC), the
Spanish system is characterised by the existence of distinct last resort SA benefits provided
regionally by the Autonomous Communities. Nevertheless, despite those differences, it is
possible to identify common problems regarding the performance of SA policies as well as
pending issues for improvement, including the need to enforce the application of Article 13
ESC at the national level.
Regarding the structure of the article, section 2 explores the recognition of social assistance as a
human right by international and regional human rights instruments. Section 3 focuses on Article
13 of the ESC by identifying a list of standards for the right to social assistance from the reporting
system of the ECSR. Section 4 includes the national case studies regarding the implementation of
the ESC in the UK and Spain. Finally, section 5 concludes the work.
2. The recognition of the right to social assistance in international and
regional human rights instruments
In the following discussion, human rights instruments are analysed in the course of analysing the
recognition of the right to social assistance. Since the universal framework does not explicitly
recognise a right to social assistance, other provisions which are closely related or which may
include it are studied, such as the right to an adequate standard of living and the right to social
security. Regarding the former, Article 25.1 of the Universal Declaration of Human Rights
(UDHR) recognised for the first time the right of everyone to a standard of living adequate for
the health and well-being of himself and of his family.10 This covers food, clothing, housing,
medical care and necessary social services, as well as the right to security in the event of unem-
ployment, sickness, disability, widowhood, old age or other examples of a lack of livelihood in
circumstances beyond his control.
Almost two decades after the UDHR, economic, social and cultural rights were recognised in a
separate treaty instrument, the International Covenant on Economic, Social and Cultural Rights
(ICESCR).11 In Article 11.1, the ICESCR requires that States recognise the right to an adequate
standard of living for everyone, including adequate food, clothing and housing, and to the con-
tinuous improvement of living conditions. The right to an adequate standard of living can be
interpreted to mean that social assistance must be provided to anyone without adequate
resources.12 According to Eide, the Article covers only food, clothing and housing.13 However,
the right could equally cover a broader definition. The point is that everyone should be able to
satisfy their basic needs under conditions of dignity. An adequate standard of living would thus
9. Casla (2015: 39).
10. Universal Declaration of Human Rights (1948), UN.
11. International Covenant on Economic, Social and...
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