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Social Security (Benefit Categories and Work Focus) Amendment Bill - Submission to the Social Services Committee [2012] NZHRCSub 10 (1 November 2012)
Last Updated: 27 June 2015
Submission by the
Human Rights Commission
Social Security (Benefit Categories and Work Focus)
Amendment Bill
to the Social Services Committee
![Logo PNG](2012_1000.png)
1 November 2012
Contact person:
Michael White
Legal and Policy Analyst
Human Rights Commission
Direct dial 04 471-6752
Email: michaelw@hrc.co.nz
Introduction
- The
Human Rights Commission (Commission) is an independent Crown entity that
derives its statutory mandate from the Human Rights Act 1993 (HRA). The
long title to the HRA states it is intended to provide better protection of
human rights in New Zealand in general accordance
with United Nations human
rights Covenants and Conventions. The Commission’s statutory functions are
to:
- advocate and
promote respect and an understanding and appreciation of human rights in New
Zealand;
- encourage the
maintenance and development of harmonious relations between individuals and
among the diverse groups in New Zealand;
- lead, evaluate,
monitor and advise on equal employment opportunities; and
- provide an
enquiries and complaints service.
- The
Commission has a responsibility to monitor domestic legislation for its human
rights compliance and provide specialist human rights
policy advice to
Parliament, government agencies and other organisations and groups. Therefore,
the Commission welcomes the opportunity
to make a submission on the Social
Security (Benefit Categories and Work Focus) Amendment Bill (Bill).
- This
submission is informed by the Commission’s work on the right to social
security including its focus on those groups most
vulnerable to
poverty[1]. It has drawn from evidence
about overseas welfare reforms similar to those proposed for New Zealand in the
Bill. In addition, the
Commission has looked at the opinions and recommendations
of international bodies that have recently scrutinised New Zealand’s
performance under the International Covenant on Economic, Social and Cultural
Rights (ICESCR) and the United Nations Convention on the Rights of the
Child (UNCROC).
- The
Commission welcomes a focus on promoting and protecting people’s right to
work. However, it is concerned about the manner
in which the Bill seeks to
achieve this given New Zealand’s domestic and international human rights
obligations.
International Human Rights Standards
- New
Zealand has ratified the core human rights treaties and conventions. These are
binding on New Zealand as a matter of international
law and include obligations
to progress the right to work and the right to an adequate standard of living
(including social security)
in addition to ensuring freedom from discrimination.
The Bill risks undermining a number of New Zealand’s international
obligations,
particularly the obligation to progressively realise the right to
social security and to protect against all forms of discrimination.
- The
right to social security, including the requirement to address the specific
needs of women, children and young people, and disabled
people, is detailed in
the following human rights instruments to which New Zealand is a party:
- Article 25 of
the Universal Declaration of Human Rights (UDHR)
- Articles 9 and
10 of the ICESCR
- Article 14 of
the Convention on the Elimination of all forms of Discrimination Against Women
(CEDAW)
- Article 26 of
UNCROC
- Article 28 of
the Convention on the Rights of Persons with Disabilities (CRPD) and
- Article 21 of
the United Nations Declaration on the Rights of Indigenous Peoples
(UNDRIP).
- The
right to social security is of central importance in guaranteeing human dignity
for people when circumstances deprive them of
the capacity to fully realise
their economic, social and cultural rights. Social security, and its interface
with the tax system,
redistributes resources and is essential to the attainment
of rights to participate in our democracy, the right to social inclusion,
to
equality, education, work, housing and the highest standard of health.
- One
of the most comprehensive assessments of the right to social security is
contained in the 2008 general comment from the United
Nations Committee on
Economic Social and Cultural rights
(CESCR).[2] It considers New
Zealand and other States Parties’ compliance with their international
human rights obligations under ICESCR.
The Committee has identified five
essential elements of the right to social security, namely:
- availability of
a sustainable social security system;
- coverage of
social risks and contingencies;
- adequacy –
of amount and duration, respecting the principles of human dignity and
non-discrimination;
- accessibility
– coverage for all, especially those who are marginalised, and eligibility
criteria must be reasonable, proportionate
and transparent; and
- relationship to
other rights – other measures are necessary to complement the right to
social security, including rehabilitation,
childcare and welfare, and measures
to combat poverty and social exclusion.
- Under
the ICESCR, State Parties are required to take measures “to the maximum
extent of their available resources” in
order to respect, protect and
fulfil these rights. Together with an obligation to progressively realise the
right to social security,
this means that it is incumbent on New Zealand to take
steps to improve its social security system in relation to all the elements
described above.
- CESCR
has also highlighted the importance of non-discrimination, particularly for
groups who traditionally face difficulties in exercising
the right to social
security including women and children and disabled people. In addition, both the
Committee on the Rights of the
Child and the Special Rapporteur on the rights of
indigenous peoples have also reiterated the need to address the economic
marginalisation
of Māori and the impact on Māori
children.[3]
- The
UNDRIP affirms that indigenous peoples have the right to the “recognition,
observance and enforcement of treaties... and
to have States honour and respect
such treaties” (article 37). It also recognises that “treaties,
agreements and other
constructive arrangements, and the relationship they
represent, are the basis for a strengthened partnership between indigenous
peoples
and States” (preamble, paragraph 19).
- The
Treaty of Waitangi is New Zealand’s own unique statement of indigenous and
human rights, setting out the rights and responsibilities
of the Crown,
Rangatira (Māori leaders) and of all New Zealanders. In affirming the
foundational status of the Treaty, UNDRIP
upholds the rights conferred by that
agreement. Those particularly relevant to this submission are Articles 1 and 3
of the Treaty.
Article 1 sets out the state’s right and responsibility to
govern. While, under Article 3, all people the right to live as
equal citizens
in New Zealand. This includes the right to social security coverage on an equal
basis for all.[4]
- Non-discrimination
is a fundamental component of all core international human rights covenants and
conventions. The CESCR’s
General Comment No. 18 reiterates that
“even in times of severe resource constraints, disadvantaged and
marginalized individuals
and groups must be protected by the adoption of
relatively low-cost targeted
programmes”.[5] This should
include a focus on sole parents, disabled people and other groups that are
disproportionately represented amongst the
long-term
unemployed.
- In
May 2012 the CESCR sent an open letter to New Zealand and all other signatories
to the ICESCR about “protection of the Covenant
rights in the context of
the economic and financial
crisis”.[6] It emphasised the
need to pay specific attention to reducing inequalities and ensuring that the
rights of marginalised groups are
not disproportionately affected. Specifically
it noted:
that States parties should avoid at all times taking decisions which
might lead to the denial or infringement of economic, social
and cultural rights
. . . .
. . . . this requires States to adopt and implement laws and
policies that aim to achieve incremental improvements in universal access to
basic goods and services
such as health care, education, housing, social
security and cultural life.
The Committee realizes that some adjustments in the implementation of some
of these Covenant rights are at times inevitable. States
Parties, however,
should not act in breach of their obligations under the Covenant.
In such cases, the Committee emphasizes that any proposed policy change or
adjustment has to meet the following requirements:
- First, the
policy is a temporary measure covering only the period of crisis;
- Second, the
policy is necessary and proportionate, in the sense that the adoption of any
other policy, or a failure to act, would
be more detrimental to economic, social
and cultural rights;
- Third, the
policy is not discriminatory and comprises all possible measures, including tax
measures, to support social transfers to
mitigate inequalities that can grow in
times of crisis and to ensure that the rights of the disadvantaged and
marginalised individuals
and groups are not disproportionately affected
;
- Fourth, the
policy identifies the minimum core content of rights, or a social protection
floor, as developed by the International
Labour Organisation, and ensures the
protection of this core content at all times.
The
Bill
- As
noted in the Bill’s explanatory note, it amends the Social Security Act
1964 (SSA) to:
- reduce benefit
dependency;
- support an
investment approach to focus resources where they will be most effective;
- support
beneficiaries into work; and
- introduce social
obligations for parents and encourage beneficiaries with warrants to arrest to
clear them.
Social Obligations
- The
Bill imposes social obligations on those receiving certain financial support
through the social security system. The social obligations require
beneficiary parents (or caregivers) to take all reasonable steps to have
their dependent child:
- aged three years
or over enrolled in and attending early childhood education (ECE) for 15
hours per week until they start school;
- enrolled in and
attending school from the age of five (or six) years depending on when the child
first starts school;
- enrolled with a
primary healthcare provider; and
- up-to-date with
the core Well Child checks.
- This
represents a fundamental change to the provision of social security in New
Zealand. Those receiving welfare benefits will not
only be required to meet work
availability and work preparation obligations but also to adhere to these social
obligations. Most
of these social obligations fall within the range of ordinary
parenting norms in New Zealand. However by setting a specific minimum
level of
ECE participation, the Bill effectively means that beneficiary parents have less
flexibility than other parents in assessing
what level and type of ECE is in the
best interests of their individual children. This is compounded by the financial
penalties a
parent receiving a benefit faces for not meeting these obligations.
- The
Bill sets out the following sanctions for non-compliance with these social
obligations:
- in the case of a
first failure, a reduction in benefit of 50 percent until the person
re-complies;
- if the person
has not re-complied within four weeks, the benefit is further reduced by 50
percent (amounting to a 100 percent reduction)
until the person
re-complies;
- in the case of a
second failure, the benefit is suspended until the person re-complies; and
- in the case of a
third failure, the benefit is cancelled.
- Certain
safeguards are introduced in the Bill in an attempt to mitigate the
inappropriate application of sanctions. For example, the
Chief Executive of the
Ministry of Social Development (MSD) must ensure that reasonable and
appropriate steps are taken to ensure every beneficiary is aware of their social
obligations.[7] In addition sanctions
can only be imposed where the beneficiary has failed without reasonable cause to
comply and MSD has communicated
with them regarding this failure (or potential
failure) to comply on at least three
occasions.[8]
- The
Commission is concerned that these provisions breach New Zealand’s
international human rights obligations because they impose
further conditions on
access to and adequacy of benefits and are retrogressive in terms of the
State’s obligation to realise
the right to social security. Furthermore
the provisions are likely to increase stigmatisation of families on benefits
given the
explicit messaging that this group need to be coerced into parenting
norms. This would breach the right to be treated with human
dignity.
- The
Commission is also concerned about how people will cope with both the threat and
actuality of losing some or all of their income.
Overseas evidence of similar
sanctions indicates these types of sanctions
can:[9]
- exacerbate the
poverty-related risks for families on benefits - such as losing accommodation,
going without food, increasing stress
and anxiety and contributing to declining
health (in some cases resulting in premature death);
- have negative
long term effects in terms of people’s earning capability, women’s
location in the marginalised workforce
and access to employment opportunity,
child wellbeing and crime rates;
- exacerbate and
entrench disadvantage associated with lack of educational opportunity,
disability, youth, gender or culture;
- in operation,
lead to racial and area targeting. In this regard, the Commission is concerned
about the intention to target reflected
in the comment in the Regulatory Impact
Statement (RIS) that - “only a portion of all beneficiaries who
have the obligation would be targeted for compliance testing” and
“because
the majority are expected to comply it can be operationally
focused on families with children identified as being the most
vulnerable”.
[10]
- The
Ministry of Justice (MOJ) has provided advice to the Attorney General on
whether the imposition of social obligations is consistent with the right to
freedom
from discrimination under the New Zealand Bill of Rights Act 1990
(BORA). MOJ concluded that the imposition of social obligations on
beneficiaries did not represent a prima facie breach of section 19 of the
BORA. Furthermore, even if it did, that any such discrimination is justifiable
under section 5 primarily
because the obligations were deemed to be beneficial
for children and young people.
- Children
from lower socio-economic groups, and in particular benefit-supported
households, are at greater risk of experiencing a range
of negative social
outcomes. Participating in health and education services improves outcomes for
children and young people. Therefore
the MOJ argues that the specific social
obligations in the Bill are in children’s best interests.
- However,
the Commission acknowledges concerns that this may not be true for all children
at all times. For example, the requirement
to be enrolled in 15 hours’ ECE
has been subject to criticism from some parents and educationalists. A number
have cited New
Zealand Kindergartens’ recommendation that three year olds
should only be in 12 hours ECE per week, not 15 as required in the
Bill.
- While
there is obvious value in encouraging participation in ECE, and in primary
education and health services, the Commission considers
that there are less
intrusive and more rational alternatives to the sanctions proposed in the Bill
to achieve this goal. For example,
further consideration should be given to a
more flexible case management approach.
- Furthermore
evidence from overseas indicates a high risk that sanctions will impact
negatively on children. In the United States,
for example, welfare sanctions
have been linked to a 30 percent increase in risk of hospitalisation and a 50
percent greater risk
of food insecurity for infants and toddlers. More
generally, they have exacerbated chronic health conditions or the onset of acute
and serious health problems in young
children.[11]
- Peters
and Joyce’s 2006 review of the United Kingdom’s sanctions regime
identified mixed findings about the impact of
sanctions.[12] Over two-thirds (68
per cent) reported financial hardship resulting from sanctions. Qualitative
interviews with seventy beneficiaries
showed they relied on friends and family,
took out loans, spent savings or applied for other benefits or allowances after
being financially
sanctioned. Reliance on family and friends meant sanctions had
a knock-on effect within the wider community and potentially prolonged
the
financial impact as people took time to pay off
debt.[13]
- The
CESCR has recently expressed concern about the retrogressive nature of welfare
reforms and “urged [New Zealand] to meet
its obligations under the
Covenant by ensuring that welfare reforms, including those aimed at reducing
long-term welfare dependency,
protect the right to social security and to an
adequate standard of living in respect of disadvantaged and marginalized
individuals
and
groups”.[14]
- In
light of these concerns the Commission recommends that the Government
re-evaluate the need for these sanctions with particular
regard to the impact
that they will have on child poverty in New Zealand. Rather than imposing a
regime of sanctioned social obligations
on beneficiaries with children, the
Commission suggests that priority be given to progressing the following
recommendations made
by the United Nations Committee on the Rights of the Child
(CRC) in January 2011.
- The
CRC noted with concern the number of children who continue to live under the
poverty line and recommended that New Zealand “take
all necessary measures
to provide appropriate support to allow disadvantaged families and their
children to move out of poverty in
a sustained way while, at the same time,
continuing to provide assistance to those under the poverty
line.”[15] In addition it
recommended that:
- inequalities in
access to health services are addressed through greater co-ordination between
health policies and those aimed at reducing
income inequality and
poverty[16]
- steps are taken
to ensure that all children have access to high quality early child-care
education that, at a minimum, is free for
socially disadvantaged children and
families[17]
- efforts are
intensified to develop services that provide assistance to parents and legal
guardians in their child-raising duties,
including parenting-support
counselling, drug and alcohol treatment and culturally appropriate services for
Māori and Pacific
people[18]
and
- stronger efforts
are made to provide young people with appropriate reproductive health services,
including education and promotion
of healthy
lifestyles.[19]
- Children
whose parents are dependent on income from a social security benefit are
particularly vulnerable to hardship and poverty.
In June 2011 there were 234,000
children in beneficiary families. This amounts to 22% of all dependent children.
Around 25% of children
live in households in which there is no adult in
full-time employment. Recent MSD research highlights the systemic,
disproportionate
impact of poverty and hardship on children in sole parent
and/or beneficiary families, particularly Māori children.
Poverty rates for children in beneficiary families are
consistently around 65-75%, much higher than for children in families with
at
least one adult in full-time employment (9% in 2011). Since the benefit cuts in
1991, 65-75% of children in beneficiary families
have been identified as
‘poor’ in each Household Economic Survey. The figure was close to
70% for 2004 to 2009, and 65%
in 2011 . . .
Children in sole-parent families have a higher risk of hardship (46%) than
those in two- parent families (12%). On average in 2010
and 2011 around half of
poor children lived in sole-parent families and half in two-parent families . .
.
Poverty rates for Maori and Pacific children are consistently higher than
for European/Pakeha children. On average from 2009 to 2011,
just under half of
poor children were Maori or Pacific.
On average over 2007 to 2011, around one in six European/Pakeha children
lived in poor households, one in four Pacific children, and
one in three Maori
children (double the rate for European/Pakeha children). The higher poverty rate
for Maori children is consistent
with the relatively high proportion of Maori
children living in sole-parent beneficiary families and households (e.g. around
43%
of DPB recipients were Maori in the 2007 to 2011
period).[20]
- Welfare
reforms have the potential to significantly impact, either positively or
negatively, on the wellbeing of these children. It
is therefore crucial that any
welfare reforms, including the current Bill, give paramount consideration to the
best interests of
the child, as required under Article 2(1) of the UNCROC. For
this reason, the Commission recommends that social obligations on beneficiaries
with dependent children, enforced through financial sanctions, are removed from
this Bill.
- However,
if the Bill proceeds with social obligations and related sanctions, the
Commission recommends that:
- a provision be
inserted requiring consideration of the best interests of any child likely to be
affected by the sanctions
- that sanctions
are assessed at the outset on an individual basis and only applied as a matter
of last resort after all other options
have been exhausted.
Adequacy of benefits
- Long-term
reliance on income from welfare benefits heightens poverty and deprivation. The
1972 Royal Commission on Social Security
recommended the welfare system should
ensure beneficiaries a standard of living at least similar to that of other New
Zealanders,
so that they participated in and felt they belonged to the community
at large.[21] This focus was
reiterated by the 1988 Royal Commission on Social Policy. It concluded that
people require “access to a sufficient
share of income and other resources
to allow them to participate in society with genuine opportunity to achieve
their potential and
to live lives they find
fulfilling”.[22]
- Yet
in terms of adequacy, the real value of core benefits, including family tax
credits, remains well below levels prior to cuts in
1991.[23] Even when accommodation
and special benefit / temporary assistance supplements are taken into account,
the level of financial support
to beneficiaries has fallen in real terms over
this period.[24]
- For
these reasons, the Commission’s December 2010 assessment of 30 priority
actions required to improve human rights in New
Zealand recommended
“reviewing and addressing the adequacy of core benefit
rates”.[25]
-
The Commission is concerned that such an assessment has been notably absent from
current welfare reform debates. New benefit categories
in the Bill would
potentially have reduced benefit rates even further for those people who moved
from a part-time work test (and
abatement rate) to a full-time work-test and
much higher effective marginal tax rate.
- The
Commission supports the decision to ensure that current beneficiaries do not
face a drop in income, through the Bill’s proposal
to grandparent current
arrangements for beneficiaries in this position. However it notes that the new
benefit categories mean a larger
proportion of those coming on to benefits will
be on a fulltime work-test and subject to the financial constraints of higher
abatement
and effective marginal tax rates. This is likely to impact on poverty
and hardship rates for these beneficiaries and their families.
- As
already noted in this submission, the Commission is concerned that the
application of sanctions for non-compliance with social
obligations will result
in further deprivation for vulnerable groups and individuals. The Bill proposes
a variety of sanctions and
penalties in addition to those associated with social
obligations including:
- where a person
(with a work availability expectation) turns down any offer of suitable
employment they will have their benefit cancelled
and a 13 week stand down will
apply;
- where a person
does not fulfil their social obligations they may have their benefit reduced or
suspended;
- where a person
has a warrant out for their arrest that has been outstanding for 28 days their
benefit may be suspended;
- where a person
fails or refuses a drug test they may have their benefit suspended or cancelled;
and
- where a person
or their spouse or partner fail to comply with pre-benefit activities.
- In
light of inadequacies in current core benefit rates, these reductions or
suspensions are likely to have significant consequences
for the health and
wellbeing of affected beneficiaries and their families. The Commission notes
that when a beneficiary has dependent
children the maximum level of financial
sanctions (50%) is less than the 100% reduction for beneficiaries without
children. However
given many household expenses are fixed, including high budget
items such as housing costs, often the most discretionary household
expense is
food. A 50% drop in family income is likely to have a significant impact on
children’s access to food and therefore
nutrition.
- The
Commission considers that the sanction provisions in the Bill undermine New
Zealand’s obligation to progressively realise
the right to social security
and suggests that it is timely for benefit levels to be reviewed.
- While
there is a limited public purse, there are strong economic arguments for
ensuring adequate benefit levels. There are correlations
between benefit levels
and prison populations. Those countries with better welfare systems and more
equal distribution of wealth
tend to have lower incarceration
rates.[26] In economic terms
therefore, overseas experience indicates that what the government may save in
welfare costs, it pays for elsewhere,
particularly in relation to
criminalisation and incarceration costs.
New Benefit Categories and Disabled People
- The
Bill abolishes the Sickness Benefit (SB). People who were previously
eligible for the SB will be moved to the Jobseeker Support Benefit (JSB)
and be subject to work availability requirements and pre-benefit activity
requirements.
- The
JSB is targeted at people who can work at least 15 hours a week, or perhaps need
a short time to recover from illness or injury
before returning to
work. For those who are unlikely to ever be able to support themselves
through work, the Invalid’s Benefit
(IB) is replaced by the
Supported Living Payment (SLP). However, the Bill requires those on SLP
who are deemed “up to it” to undertake work preparation and to have
a work
plan.
- The
Bill’s proposals reflect the approach adopted in the United Kingdom
(UK), which is based on the use of the bio-psychosocial model of
disability.[27] The discontinuation
of the sickness benefit in the UK, as well as the introduction of work
capability assessments has been very controversial.
Professor Harrington’s
first independent review in the UK highlighted significant problems with
fairness and transparency of
the work capability assessment process conducted by
contracted providers such as Atos Healthcare for Jobcentre Plus (the UK
equivalent
of Work and Income).[28]
In broad terms, the pathway for the claimant through
Jobcentre Plus is impersonal, mechanistic and lacking in clarity. The assessment
of work capability undertaken for the Department for Work and Pensions by Atos
Healthcare suffers from similar procedural problems.
In addition, some
conditions are more subjective and evidently more difficult to assess. As a
result some of the descriptors may
not adequately reflect the full impact of
such conditions on the individual’s capability for work.
The final decision on assigning the claimant to one of the three
categories theoretically rests with the Decision Maker at Jobcentre
Plus but, in
practice, the Atos assessment dominates the whole procedure. This imbalance
needs correcting and the Decision Maker,
using the Atos assessment as part of
the whole data gathering exercise, needs to take control. Such a shift in
procedure and authority
would almost certainly decrease the high number of
referrals to the appeals process– itself a stressful and time consuming
activity for the claimant.
The claimant needs to feel that they have been fairly treated and
thoroughly assessed. They need to know that the object of the whole
exercise is
accurately to assign them to a work or a work-related activity group but also to
ensure that those who cannot work receive
the full support of the
state.
- UK
disability advocates continue to raise concerns about the assessment processes.
One particular area of concern is that people who
live with severe mental
illness and conditions such as Chronic Fatigue Syndrome and Fibromyalgia have
been interpreted as capable
of work despite medical reports to the
contrary. Thus people have been left extremely unwell with no
income.
- The
Commission is concerned that a similar situation may occur in New Zealand with a
group of vulnerable people, including those with
mental illness, being unable to
work and unable to receive adequate social security assistance. In some cases
they may also become
subject to sanctions under the Bill.
- By
ratifying the United Nations Convention on the Rights of Persons with
Disabilities (CRPD) in 2008 New Zealand has committed to
protecting the rights
of disabled people. The CRPD adopts a social model of disability. That model of
disability, developed in the
1980s, emphasises that people with disabilities are
disempowered not due to their impairments, but rather by the barriers they face
which flow from societal attitudes and restrictions against disabled
people.[29]
- While
a bio-psychosocial model of disability focuses on capacity assessment, the
emphasis in a social model of disability is on creating
work opportunities and
removing employment barriers. The workplace barriers disabled people report
include lack of reasonable accommodation,
employers who have little information
or knowledge about how to respond to reasonable accommodation requests, and
discriminatory
workplace attitudes. These are compounded by inadequate support
outside the workplace, for example inaccessible transport and inflexible
disability support arrangements.
- People
with disabilities want work. The key challenge is to ensure that barriers to
participation and inclusion are addressed. The
CRPD anticipates that States
Parties shall take all appropriate steps to ensure that reasonable accommodation
is provided. Reasonable
accommodation is defined
as:
... necessary and appropriate modifications and
adjustments not imposing a disproportionate or undue burden, where needed in a
particular
case, to ensure to persons with disabilities the enjoyment or
exercise on an equal basis with others of all human rights and fundamental
freedoms.
- It
is important that disabled people’s right to reasonable accommodation when
seeking employment is protected. This includes
their right to refuse work that
does not meet these requirements, without being sanctioned. People with mental
illness, for example,
may require specialised services, including assistance
with pre-vocational issues, social preparation for employment, and flexible
post-placement support. What is 'reasonable' should be viewed in a positive and
practical light, with activity directed toward what
is possible given a specific
situation and not limited strictly to avoidance of
costs.[30]
- By
adopting a bio-psychosocial model the Bill is at odds with the spirit and letter
of the CRPD. The Commission recommends that further
consideration be given to
the application of work availability and pre-benefit requirements in relation to
disabled people. People
assessed as eligible for the Supported Living Payment
should be given work opportunities that match their skills, abilities and
aspirations
without the threat of sanction if the appropriate opportunity cannot
be found or their support needs cannot be reasonably accommodated.
- Therefore
before work ability assessments and work availability and pre-benefit
requirements are introduced for disabled people, it
is vital to ensure
that:
- appropriate,
decent work opportunities exist
- these jobs
protect disabled people’s right to reasonable accommodation and
- disabled
people’s general living arrangements are not significantly compromised by
these requirements.
- Without
such prerequisites, the Commission recommends that any work availability and
pre-benefit obligations (and corresponding sanctions)
on disabled people should
be removed from the Bill.
- The
Commission is aware of and supports concerns raised by disability groups about
the title of the new Supported Living Payment.
Specifically, the Commission
understands that the name is identical to that used for another service provided
to disabled people,
through the Ministry of Health. This is likely to be
particularly confusing for people with a learning disability. Therefore the
Commission recommends the SLP is renamed, in consultation with disabled people.
The amended name should meet the obligations set
out in the CRPD, including
respect for the inherent dignity of disabled people, and clearly distinguish
this benefit from other services
that disabled people
receive.
Disability allowance costs
- The
CRPD is based on a number of core principles including the right to respect for
one’s inherent dignity, individual autonomy
and independence. The
Bill’s provisions may significantly reduce some disabled people’s
ability to exercise their autonomy
in accessing supports and services that they
require. Specifically, clause 69C of the Bill requires goods and services that
are to
be purchased with a disability allowance to be purchased from a
‘preferred supplier’. While this may be an appropriate
option for
some disabled people, the Commission is concerned that a ‘standard
supplier’ may not be suitable for the diversity
of disability needs. Thus
the provision may not provide the necessary degree of individualised support
that underpins current disability
reforms.
- The
Commission understands that items that might be covered by the Disability
Allowance include, for example, counselling, health-related
dietary needs, some
additional medication costs, and travel to a doctor. If a preferred supplier
reduces flexibility by limiting
available options, this is likely to adversely
affect the health and wellbeing of some disabled people.
- The
Commission acknowledges that there is discretion in the Bill for the Chief
Executive to allow an individual to purchase goods
from alternate suppliers.
However, this exception is extremely limited. It only applies where a person is
receiving the maximum appropriate
rate of the disability allowance and the
preferred supplier does not stock the item required. The Commission believes
that this is
inadequate. It would be more appropriate and in line with New
Zealand’s international human rights obligations to enable decisions
to be
made on a case-by-case basis taking into account the diversity of disability
needs.
- Perhaps
more worrying is the fact that the Bill removes any right of review in relation
to a decision by Work and Income about disability
allowance
costs.[31] The right to review a
determination made by a public authority is a longstanding principle of New
Zealand’s legal system,
is codified in international human rights
law[32] and affirmed by customary
international law.
- Assessing
disability needs and supports is complex. The Commission is concerned that the
lack of review and appeal rights may result
in some people who would otherwise
legitimately be entitled to disability support being forced to live without the
supports and assistance
that they need to fully participate in the
community.
Drug Testing
- The
Bill introduces pre-employment drug testing requirements for beneficiaries to
determine whether the candidate’s capacity
to work, or be trained for
employment, is impaired. The Commission notes and welcomes the Bill’s
distinction between those
who have a dependency on drugs and recreational
drug-users. This reflects international jurisprudence confirming that drug (or
alcohol)
dependency is a medical condition and therefore any sanctions against
someone dependent on drugs amounts to prima facie discrimination on the
ground of
disability.[33]
- In
relation to people with a drug dependency, the Commission welcomes provision for
them to be offered support. However, it is important
that people are not
compelled to undertake medical treatment and that sufficient recognition and
allowance is given to the complex
long process of recovery from addiction. There
is also a need to recognise the geographical differences in programme
availability
and for services to be sufficiently responsive to Māori, other
cultural groups, young people and people with disabilities.
- Recreational
drug-use is not protected under anti-discrimination law. However there are still
limitations on workplace drug-testing
given the right to be secure against
unreasonable search and seizure (section 21 of the BORA) and the right to
privacy.
- The
Bill’s drug testing requirements only apply where undertaking and passing
a drug test is required as part of a job application
or training programme. This
is a necessary but not sufficient limitation on workplace drug-testing.
- The
threshold in relevant case law is typically tighter than that a drug test is
required by an employer. For example, the three-fold
test established in the
Canadian case British Columbia v British Columbia Government and
Service Employees’
Union[34] requires
assessing:
- Did the employer
adopt the policy and standard for a purpose rationally connected to the
performance and the job?
- Did the employer
adopt the particular policy or standard in an honest and good faith belief that
it was necessary to the fulfilment
of that legitimate, work-related
purpose?
- Is the policy or
standard reasonably necessary to the accomplishment of that legitimate,
work-related purpose?
- Given
the potential human rights implications of drug-testing provisions that are
coupled with sanctions, the requirement to pass
a drug-test should be clearly
justified in every case. The Commission recommends that transparent criteria,
based on relevant case
law, should be used to determine whether passing a drug
test is a reasonable requirement for a specific job.
- Finally
there is a range of technical issues that the Bill does not address. Firstly it
is difficult to distinguish between drug dependency
and recreational drug use.
Secondly it is possible to test whether a potential or current employee’s
reactions and judgements
are impaired by alcohol and therefore affecting their
work performance. However, in the case of drugs, it is often hard to show that
a
positive drug test equates with impairment. These technical issues are likely to
impact on the practical feasibility of the Bill’s
proposals.
Monitoring and Evaluation
- As
already noted, specific population groups (including disabled people, Māori
and women) will be disproportionately affected
by current welfare reforms.
Families on benefits are more likely to be those with greater caring
responsibilities, for young children
or for ill or disabled family members. Two
out of every five disabled children, whose disability is sufficiently severe for
their
carers to receive the child disability allowance, live in families
dependent on a core benefit or New Zealand
Superannuation.[35]
- In
July 2012 the United Nations Committee on the Elimination of all forms of
Discrimination against Women (CEDAW Committee) noted with concern that
the “new social security legislation will likely predominantly affect
Maori women and reduce social
benefits”.[36] The Committee
recommended that “[New Zealand] ensure that the ongoing welfare reforms do
not discriminate against disadvantaged
groups of women and that an independent
evaluation of their gendered impact is
made.”[37]
- The
Committee reiterates concerns raised by the Commission in its submission on the
Social Security (Youth Support and Word Focus)
Amendment Bill, recommending an
independent evaluation to monitor the impact of welfare reforms. This included
the need for greater
public access to relevant MSD administrative data and
ensuring that such data can be disaggregated sufficiently to measure the impact
of welfare reforms on groups vulnerable to systemic disadvantage. The Commission
specifically recommended scoping options for collecting
better data on
beneficiaries with disabilities.
- The
current Bill does not provide enough detail to assess whether planned monitoring
and evaluation of this second stage of welfare
reforms will be sufficient
either. The Commission recommends that government funding is provided for an
independent evaluation of
the impact of welfare reforms on levels of:
- hardship
- poverty
- inequality and /
or
- direct or
indirect discrimination against vulnerable groups.
- This
monitoring and evaluation should involve consultation with those currently
receiving benefits, those who have moved off benefits
since welfare reforms were
introduced and population groups (including disabled people) who are
disproportionately reliant on benefits
as their primary source of income.
Recommendations
- The
Commission believes that the Bill’s provisions introducing social
obligations and drug-testing, both backed by sanctions
for non-compliance, will
disproportionately impact on those individuals who are already in vulnerable
situations. In some cases the
provisions may force people off benefits and into
poverty.
- The
Bill also changes the way in which social supports and services are applied to
disabled people. These provisions potentially limit
accessibility and undermine
the rights of disabled people to live independently and with
autonomy.
- In
conclusion, the Commission has serious concerns about the passage of the Bill in
its current form and recommends:
- removing the
social obligations on beneficiaries with children that would be enforced through
financial sanctions
- if the Bill does
proceed with social obligations and related sanctions, that a provision be
inserted requiring:
- -
consideration of the best interests of any child likely to be affected by the
sanctions
- - that
sanctions are assessed at the outset on an individual basis and
- - that
sanctions are only applied as a matter of last resort after all other options
have been exhausted.
- removing work
availability and pre-benefit obligations (and corresponding sanctions) on
disabled people unless it can be demonstrated
that appropriate work
opportunities exist, disabled people’s general living arrangements are not
significantly compromised
and their right to reasonable accommodation has been
protected
- introducing a
broad discretion to enable decisions about whether or not disabled people must
use a preferred supplier to be made on
a case-by-case basis taking into account
the diversity of diversity needs
- ensuring that
review and appeal rights are maintained in relation to all determinations made
by Work and Income, including decisions
about disability allowance costs
- amending the
name of the Supported Living Benefit, in consultation with disabled people, to
reflect the principle of respect for a
disabled person’s inherent dignity
and to clearly distinguish this benefit from other services that disabled people
receive
- ensuring
transparent criteria, consistent with relevant case law, for assessing whether
passing a drug test is a reasonable requirement
for a specific job
- independently
evaluating the impact of welfare reforms in order to monitor and address any
negative impact they might have on hardship,
poverty, inequality or direct or
indirect discrimination against vulnerable groups and
- urgently
reviewing the adequacy of core benefit rates.
- Thank
you for the opportunity to make a submission on this Bill. The Commission would
like to appear before the Select Committee to
speak to this submission. Any
questions about the submission can be directed, in the first instance, to the
Commission’s Legal
and Policy Analyst Michael White on michaelw@hrc.co.nz
.
[1] See for example the right to
social security chapter in Human Rights in New Zealand 2010 and the
Commission’s submissions to the Welfare Working Group and on the Social
Security (Youth Support and Work Focus) Amendment
Bill 2012. Accessible online
at: http://www.hrc.co.nz/hrc_new/hrc/cms/files/documents/15-Dec-2010_12-41-26_Chapter_15pp220-237.pdf,
http://www.hrc.co.nz/resources#submissions
and http://www.hrc.co.nz/2012/submission-on-social-security-youth-support-and-work-focus-amendment-bill
respectively.
[2] Committee on
Economic, Social and Cultural Rights (2008), general comment 19. The right to
social security, 39th session: E/C.12/
GC/19. Accessible online from: http://www.unhcr.org/refworld/docid/47b17b5b39c.html
[3] Committee of Economic, Social
and Cultural Rights (2012), Concluding observations in relation to New
Zealand’s third periodic
report, E/C.12/NZL/3; Committee on the Rights of
the Child (2011), Concluding observations in relation to New Zealand’s
third
and fourth periodic reports,
CRC/C/NZL/CO/3-4.
[4] A more
detailed analysis of the relationship between UNDRIP and the Treaty of Waitangi
is contained in the Commission’s 2012
submission to the Māori Affairs
Committee’s Inquiry into the determinants of wellbeing for Māori
children. This is
accessible online at: http://www.hrc.co.nz/2012/maori-children-denied-basic-human-rights
[5] At para 12. See also CESCR
general comment No. 3 (1990) The nature of States parties’
obligations, paragraph 12.
[6]
Accessible online at: http://www2.ohchr.org/english/bodies/cescr/docs/LetterCESCRtoSP16.05.12.pdf
[7] New s 60
RB.
[8] New s 60RC(1) and
(3).
[9] For example, Griggs J
& Evans, M (2010) A review of benefit sanctions. Accessible online
at: www.jrf.org.uk.
[10]
Ministry of Social Development (2012) Regulatory Impact Statement: Proposals
for Bill two of the Welfare Reforms. Accessible online at: http://www.treasury.govt.nz/publications/informationreleases/ris/pdfs/ris-msd-wrpbt-sep12.pdf
[11] Children’s Sentinel
Nutritional Assessment Program Report (2002), The Impact of Welfare on the
Health of Infants and Toddlers
A report from the children’s sentinel
nutrition assessment program. Accessible online at: http://www.childrenshealthwatch.org/upload/resource/welfare_7_02.pdf
[12] Office of the Minister for
Social Development (15 February 2012) Paper B Welfare Reform:
Availability and preparation for work for sole parents, widows, women alone and
partners, para 50.
[13]
Peters, M. and Joyce, L. (2006) Review of the JSA Sanction Regime: Summary
Research Findings, DWP Research Report No. 313. Accessible online at: http://research.dwp.gov.uk/asd/asd5/summ2005-2006/313summ.pdf
[14] Supra note
3.
[15] Supra note
3.
[16] Ibid, Paragraph
37
[17] Ibid, Paragraph
45(a)
[18] Ibid,
Paragraph 31
[19] Ibid,
Paragraph 41(a)
[20] Perry, B.
(2012) Household Incomes in New Zealand: Trends in indicators of inequality
and hardship 1982 to 2011, pp 18-19. Wellington: Ministry of Social
Development. Accessible online at: http://www.msd.govt.nz/documents/about-msd-and-our-work/publications-resources/monitoring/household-income-1982-2007/2012-hir-main-report.doc
[21] Krishnan, V (1995)
“Modest but Adequate: An Appraisal of Changing Household Income
Circumstances in New Zealand”. Social Policy Journal of New Zealand
1, 3.
[22] Royal Commission
on Social Policy (1988) The April Report – Report of the Royal
Commission on Social Policy, p731. Wellington: Royal Commission on Social
Policy.
[23] Fletcher, M. &
Dwyer, M. (2008) A Fair Go for all Children: Actions to address child poverty
in New Zealand. A report for the Children’s Commissioner and
Barnardo’s. Wellington: Office of the Children’s Commissioner.
[24] Ibid; p
37
[25] New Zealand Human Rights
Commission (2010), Human Rights in New Zealand Summary. Accessible online
at: http://www.hrc.co.nz/human-rights-environment/human-rights-in-new-zealand-2010
[26] Savage, Joanne, Richard R.
Bennett and Mona Danner (2008) 'Economic Assistance and Crime: A Cross-National
Investigation', European Journal of Criminology 5(2):
217-238.
[27] In a September 2012
address to medical professionals, the Social Development Minister confirmed that
the proposed welfare reforms
drew extensively on the UK experience: http://www.beehive.govt.nz/speech/speech-medical-professionals
[28] Professor Malcolm
Harrington (November 2010) An independent review of the work capability
assessment. Accessible online at: http://www.dwp.gov.uk/docs/wca-review-2010.pdf
[29] Andreas Dimopoulos (2010)
Issues in Human Rights Protection of Intellectually Disabled Persons
pp.19-25. C Barnes, G Mercer and T Shakespeare (1999) Exploring Disability: A
Sociological Introduction p 21.
[30] Many accommodations will
incur little or no costs.
[31]
Clause 28 of the Bill.
[32] See
for example, article 2 of the
ICCPR.
[33] See for example,
Carr v Botany Bar Council [2003] NSW ADT 2009; Milazzo v Autocar
Connaisseur 2003 CHRT 37; and Alberta v Kellog, Brown & Root
2007 (ABCA) 426.
[34] [1999]
3 S.C.R. 3, 1999
SCC 48.
[35] Fletcher, M.
& Dwyer, M. (2008), p.
5.
[36] Accessible online
at: http://www2.ohchr.org/english/bodies/cedaw/docs/co/CEDAW-C-NZL-CO-7.pdf
[37]
Ibid.
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