Social Security Reform and the Untapped Potential of Human Rights Law

Abstract

The courts have done little to ameliorate the harsh ‘austerity’ reforms pursued by the government since 2010, adopting a highly deferential approach towards human rights claims in the social security context. This article identifies the two key moves to achieve this result: adopting the manifestly without reasonable foundation standard of justification and treating indirect discrimination claims on suspect grounds as not ‘real’ discrimination claims. It shows nonetheless the untapped potential of Convention rights, since even within this framework strong arguments were still available to the courts, based on the functioning of the social security system, which should have rendered two of the harshest reforms, the two-child limit and especially the benefit cap, Convention incompatible. The cap, which limits the subsistence benefits of unemployed families, is justified as a work-incentive policy, yet through Universal Credit the state also independently assesses families affected by the cap as doing all that they reasonably can to find work.