The right to social security: for ombudsman schemes

Article 9 of the ICESCR recognises the right to social security, including social insurance (such as the UK’s National Insurance).

Article 13 of the ESC covers the right to social and medical assistance, and Article 14 the right to benefit from social welfare services.

The ICESCR is monitored by the UN Committee on Economic, Social and Cultural Rights (CESCR) and the ESC by the Committee on Social Rights (CSR). The committees do not accept complaints from individuals

• healthcare
• social care
• employment and unemployment
• pensions
• social security
• family and child support
• maternity
• disability

According to the CESCR’s General Comment No. 19 2007, states have a duty to:

• have a social security system
• ensure an adequate standard of living and access to adequate healthcare through social security support
• make social security accessible to all, and especially to protected and disadvantaged groups
• improve the social security system under the principle of progressive realisation

It says that, as a minimum, social security should cover:

• healthcare
• sickness
• old age
• unemployment
• employment injury
• family and child support
• maternity
• disability
• survivors and orphans (after the death of the principal income earner)

In England and Wales, the Department for Work and Pensions decides the level of the various social security payments and who should receive them. Other government departments or agencies may have responsibility for assessing and processing social security claims.

The CESCR says that the eligibility criteria used must be reasonable, proportionate, transparent and non-discriminatory.

Individuals should have the right to get and share clear information about all social security entitlements.

Possession of pensions and benefits

Pensions and certain types of social security are considered ‘possessions’ under Protocol 1, Article 1 of the European Convention on Human Rights and the Human Rights Act, which protects your right to enjoy your property peacefully.

A sudden withdrawal of a pension fund, for instance, may be considered an unlawful interference with that right, as in Kjartan Ásmundsson v Iceland 2004.

However, the right to enjoy your property peacefully is qualified, and can be interfered with in certain circumstances. See also restrictions to this right.

Destitution

States must have discretionary or emergency payments available to assist individuals at risk of destitution. This is covered by the right to be free from inhuman or degrading treatment, an absolute right.

Complaints about eligibility and administration

Complaints about eligibility for social security, or the way in which social security is administered, may raise human rights concerns.

In such cases, you should establish whether there is evidence of discrimination, including whether the organisation:

• treated eligible people equally
• processed applications for everyone in the same timeframe
• responded to all requests for information in the same timeframe

Destitution

If the state has allowed someone to fall into destitution, it can amount to inhuman or degrading treatment.

If a complaint is about how a discretionary payment was decided or a failure to make an emergency payment, you should consider whether the right to be free from inhuman or degrading treatment applies.

Complaints about withdrawal of benefits or pensions

You should explore the circumstances of the withdrawal to see if the interference with the right to enjoy property peacefully is lawful and in the public interest. You may need to balance the public interest with the impact of the withdrawal on the individual.