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New Zealand Human Rights Commission Submissions |
Last Updated: 3 December 2015
Submission on Social Security (Extension of Young Persons
Services and Remedial Matters) Amendment Bill
Social Services Committee
9 September 2015
Introduction
1. The Human Rights Commission welcomes the opportunity to provide this
submission to the Social Services Committee on the
Social Security
(Extension of Young Persons Services and Remedial Matters Amendment Bill
(‘the Bill’).
2. The main purpose of the Bill is to extend the wraparound Youth Service
programme, which currently applies to 16-18 year old beneficiaries,
to:
• All 19 year old beneficiaries with children; and
3. The Bill also amends the sanctions regime of the Social Security
Act1 so that it applies in cases where young people fail to meet any
of the new Youth Service obligations.
Summary of the Commission’s position
4. The Bill has a number of important human rights implications.
International human rights principles provide that family and child
benefits are
crucial public policy mechanisms for enabling all children and young people to
enjoy their right to an adequate standard
of living2. Furthermore, a
human rights compliant approach to social security policy also requires that the
welfare and best interests of any
child or
1 Section 174
2 UN Committee on Economic, Social and Cultural Rights, General Comment 19 on the right to social security, 4
February 2008, E/C.12/GC/19. General Comments are interpretations of aspects of treaties by the international
body responsible for monitoring their implementation. As such they are regarded as the most authoritative legal interpretation of how a treaty should be implemented and indicate the requirements and standards that must be satisfied to ensure a State does not breach its international commitments
young person is given primary consideration in any decision-making process
that affects them3.
5. Like the recent Support for Children in Hardship Bill, which introduced increases to core benefit rates4 and more onerous work testing requirements, this Bill introduces a range of measures that have both a progressive and retrogressive human rights impact. Progressive measures include increased income opportunities (such as the
$10 per week incentive payment), and increased investment on improving socio-
economic outcomes through the extension of Youth
Services. Retrogressive
measures include the imposition of a more onerous set of obligations on young
beneficiaries required to
receive Youth Services5, a consequential
extension of the sanctions regime6 and limitations placed on appeal
avenues7.
6. While the Commission supports the progressive aspects of the reforms being
introduced by the Bill, it is concerned at the potentially
detrimental impact of
onerous compliance obligations upon young, vulnerable people8,
particularly if these reforms lead to an increased use of mandatory
sanctions.9 The Commission accordingly recommends that the
Committee consider amending the Bill to require that child/young person
welfare
impact assessment processes are carried out as a matter of course prior
to any decision being made to implement sanctions.
International human rights obligations
7. The Bill engages the right to social security10 under a
number of human rights instruments that the New Zealand Government has ratified,
including Article 9 of the International
Covenant on Economic Social and
Cultural Rights, Article 26 of UN
3 Article 3.1 UN Convention on the Rights of the Child. See also Expert Advisory Group on Child Poverty (2012) Working Paper 10: Reforms to the tax, benefit and active employment system to reduce child poverty, Recommendation 3, p 7, http://www.occ.org.nz/assets/Uploads/EAG/Working-papers/No-10-Reforms-to-tax- benefit-and-employment-system.pdf
4 Including young people receiving the Young Parent Payment. Schedule 26 provides for an increase from
$300.28 to $325.28 per week. This is the same amount as parent payments to adult beneficiaries
5 such as the additional set of obligations set out under clause 29 – new section 171A
6 Clause 31 – new section 174A
7 Clauses 6-9
8 Many of the young people affected by this legislation will have started receiving the youth payment upon their transition from state care
9 In a September 2014 report, the Child Poverty Action Group reported that a lack of data on benefit sanctions has made it difficult to assess the impact of recent benefit reforms upon children.
http://www.cpag.org.nz/assets/Publications/140930%20CPAG%20Benefit%20Sanctions%20Report%20III.pdf
10 The right to social security is a long standing international human right, recognised in the Declaration of
Philadelphia 1944 and later incorporated in the 1948 Universal Declaration on Human Rights (Art. 22)
Convention on the Rights of the Child and Article 28.2 of the UN Convention
on the
Rights of Persons with Disabilities.
8. In its General Comment 19 on the right to social security, the UN
Committee on Economic, Social and Cultural Rights made
a number of
observations of direct relevance to the Bill, all of which are instructive when
assessing the impact of the Bill.
These include:
• The right to social security includes the right not to be subject to arbitrary or unreasonable restrictions of existing social security coverage11
• Social security policy should be treated as a social good, not a subset of financial or economic policy12
• Family and child benefits are crucial mechanisms in enabling the protective functions of Article 9 and 10 of ICESCR (and by association Article 27 of UNCROC)13.
• Benefits must be of adequate value (both cash and in kind) to enable the realisation of, inter alia, the right to an adequate standard of living; and be accessible14.
• Qualifying criteria must be reasonable, proportionate and
transparent.
Sanctions should be circumscribed, reasonable and subject to due process protections15.
• Special attention should be given to enabling vulnerable groups to realise their right to social security16
• There is a strong presumption against the adoption or introduction of retrogressive measures17
• Any persons who have experienced a violation of their right to
social security have access to effective judicial recourse
or other appropriate
remedial avenues18.
The Bill’s Regulatory Impact Statement (RIS)
11 UN Committee on Economic, Social and Cultural Rights, General Comment 19 on the right to social security, 4
February 2008, E/C.12/GC/19, para 9
12 Ibid para 10
13 Ibid para 18
14 Ibid para 22,23
15 Ibid para 24
16 Ibid para 30
17 Ibid para 42
18 Ibid para 78
9. The RIS19 prepared by the Ministry of Social Development
notes that the Bill gives effect to the Government’s welfare manifesto
concerning
extension of the Youth Service approach to 18 and 19 years olds who
are either young parents or are at risk of long term dependency
on
benefits.20 The Youth Service policy is predicated on the Investment
Approach – a funding model based on actuarial principles that places
an
emphasis on intensive service provision an “early and formative”
stage of a persons’ life.21
10. The RIS further provides that the most recent evaluation of the Youth
Service policy22 indicates that it has led to improved educational
achievements and lower rates of uptake of the adult benefit amongst non-parent
youth
payment recipients. However, there is yet to be an evaluation of the
impact of the Youth Service policy on recipients of the Young
Parent
Payment23.
11. The Commission notes that international human rights principles are
neutral as to the types of funding models or strategies used
for the provision
of social security. The UN Committee on Economic, Social and Cultural Rights has
held that such measures cannot
be defined narrowly24. Instead, the
critical factor is the capacity of policy measures to guarantee all people a
minimum enjoyment of their right
to social security.
12. The RIS also addresses human rights implications arising from the use of a statistical risk modelling (SRM) approach designed to assess the suitability of “at risk” 18 and
19 year old Jobseeker beneficiaries for Youth Service scheme.25 The RIS notes that
the SRM approach makes distinctions based on age, family status and other
“risk factors”. However, it concludes that the
differential effect
of the SRM approach does not “contradict” either the New Zealand
Bill of Rights Act (NZBORA) or the
Human Rights Act
(HRA).26
19 http://www.treasury.govt.nz/publications/informationreleases/ris/pdfs/ris-msd-eys-jun15.pdf
20 RIS para 20
21 RIS para 7
22 MSD Youth Service Evaluation Report, June 2014
23 RIS para 18
24 UN Committee on Economic, Social and Cultural Rights, General Comment 19, para 4
25 RIS paras 87-92
26 RIS para 92
13. The Commission notes that the proposed SRM tool is a policy mechanism and
is not a statutory instrument incorporated within the
text of the Bill. It has
therefore not been assessed by the Attorney-General for its NZBORA consistency.
However, it will be used
for the purposes of enabling decisions made under
Clause 29 of the Bill (new section 171A) and thus should be scrutinised by the
Committee.
14. Risk modelling tools are new to the social sector and raise a number of
important ethical considerations. For example, as part
of the development of the
Children’s Action Plan, the Ministry of Social Development (MSD)
commissioned the Centre for Applied
Research in Economics (CARE) at the
University of Auckland to undertake research on whether Predictive Risk
Modelling (PRM) could
be used to target early intervention and reduce child and
neglect.
15. In that case, CARE found that, due to the limitations of the available
data, a full ethical evaluation of PRM is necessary before
implementation. It
also found that an ethical framework should be developed to guide
agencies in how they should respond
to risk scores generated by PRM.
Furthermore, CARE noted that implementation of PRM required strong engagement
from front-line providers
and staff27, necessitating a
“careful, deliberate and phased implementation” following its
ethical evaluation.28
16. The Commission considers that a similar ethical evaluation
process should be undertaken prior to any decision being
made to implement an
SRM process. The Commission therefore recommends that the Committee consider
adding a sunset clause to the
Bill to require that the development of
any SRM tool used for determining the risk of long-term welfare dependency
is
subject to full independent ethical evaluation prior to
implementation.
Attorney-General’s NZBORA report
17. The Attorney-General’s report on the Bill’s consistency with
the NZBORA notes that the Bill discriminates against
young beneficiary parents
and ‘at risk’ 18 and 19 year
28 Centre for Applied Research in Economics (2012) Vulnerable Children: Can administrative data be used to identify children at risk of adverse outcomes? Department of Economics, University of Auckland
olds on the grounds of age, by placing money management requirements and
other obligations that are not required of adult
beneficiaries29.
18. The report also finds the Bill discriminates against 19 year old beneficiary parents on the basis of family status, by imposing obligations not required of 19 year old non- parent beneficiaries. It further finds that the incentive payment scheme under clause
28 of the Bill discriminates on the basis of marital status insofar that it
applies to the partners of beneficiary parents and does
not apply to 19 year
olds who are single or who have non-beneficiary partners.
19. However, the Attorney-General’s report concludes that the
Bill appears to be consistent with the rights and freedoms
contained in the
NZBORA report finding that, in all cases, discrimination is justified due to a
number of contextual factors, including:30
• Minimal impairment of rights
20. The Commission notes that 18 and 19 year olds deemed at risk of long term welfare dependency may be subject to sanctions on grounds that they fail to meet their youth service obligations, obligations that are not imposed on other adult beneficiaries aged
18 and over who receive the regular jobseeker payment.
21. As noted above, the Commission is concerned at the expanded sanctions framework introduced by this Bill. This issue is addressed in more detail below at paragraphs
26-28.
Other NZBORA implications
29 Attorney-General report, para 15 and 18, http://www.justice.govt.nz/policy/constitutional-law-and-human- rights/human-rights/bill-of-rights/social-security-extension-of-young-persons-services-and-remedial-matters- amendment-bill
30 Ibid paras 19, 23, 26
22. The Bill also amends the current legislation and overrides recent Social
Security Appeal Authority case law31 in order to remove any possible
appeal avenues that a person may have if affected by a MSD decision
about another applicant
or beneficiary.
23. The Bill also inserts a new a s 12J(5) which has the effect of providing
that the economic (or other) effect of a decision or
determination by MSD may
not constitute a ground for appeal.
24. The Commission considers that these amendments raise questions about the
Bill’s consistency with section 27(2) of NZBORA
which provides for the
right of a person whose rights have been affected by the decision of a tribunal
or court to judicial review
of that decision. The Commission is particularly
concerned that new s 12J(5) would appear to limit the ability of a person to
bring
an appeal on the grounds of economic hardship.
25. The Commission accordingly recommends that the Clauses 6-9 of
the Bill are deleted in order to retain current appeal
rights.
Sanctions
26. The Commission is concerned that the Bill expands the application of the sanctions regime to young beneficiaries. Specifically, Clause 31 (new section 174A) provides that the Chief Executive must treat any failure by a young person aged 18 or 19 to meet the new youth service or work test obligations under Clause 29 (new section
171A) as a failure to meet their obligations under s 170 of the Act, thus
triggering the sanctions provisions under s 173.
27. The Commission is concerned that this requirement is mandatory and does
not require the Chief Executive to consider the impact
that sanctions may have
on the welfare of the young person affected by the decision. The Commission
accordingly recommends the following
amendments to Clause 31 of the
Bill:
31 SSA 005/12 [2012]
triggering the sanctions regime is a discretionary rather than a mandatory
outcome.
• Section 174A(4) is amended to provide that the Chief
Executive must consider the welfare and best interests of
the young person to
whom s174A applies.
28. The Commission is similarly concerned that sections 173 and 174
of the Act respectively provide that a young person
receiving a youth payment
or a young parent payment is subject to mandatory imposition of sanctions
without any requirement that
consideration be given to the welfare and best
interests of the young person or, as the case may be, their dependent child.
The
Commission accordingly recommends that sections 173(1) and 174(1) are
amended as follows:
• The word “must” is replaced with
“may” in order to change the Chief Executives function
under
that section from a mandatory to a discretionary function.
• Inclusion of a requirement that the Chief Executive must assess
the impact of sanctions upon the welfare and best interests
of the young person
and any dependent child prior to making their decision.
Contact Person: John Hancock, Senior Legal and Policy Analyst
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