By Dr Luke D. Graham
We are delighted to present this three-part series on destitution and ESCR, authored by Dr Luke D. Graham. Dr Luke D. Graham is a Lecturer in Law at Coventry University. His ESRC Funded PhD undertaken at Lancaster University Law School was titled ‘Destitution as A Denial of Economic, Social and Cultural Rights: Addressing Destitution in The UK Through a Human Rights Framework’. @lukedgraham
Increasingly people in the UK are unable to adequately meet their survival (or essential) needs. The experience of destitution – the inability to meet these needs – correlates with the non-realisation of a number of Economic, Social and Cultural Rights (ESCR). In order to tackle destitution, the UK must live up to the obligations stemming from these rights.
Levels of destitution are on the rise
Destitution is a growing problem in the United Kingdom. A trio of Joseph Rowntree Foundation (JRF) reports powerfully evidence this statement. The 2016 report which found 1.25 million people to be destitute has been the catalyst for renewed engagement with the concept of destitution in British society as a whole. The 2018 report found that this figure had risen to 1.5 million and the most recent 2020 report has revealed that ‘even before the COVID-19 outbreak, destitution was rapidly growing in scale and intensity’ with a 54% increase between 2017 and 2019. At some point in 2019, 2.4 Million people – or 3.6% of the population – experienced destitution. It is highly likely that the approach to recovery from COVID-19, perhaps compounded by a no deal Brexit, will increase these figures.
Definitions of destitution
Destitution may be understood in a number of ways. Traditional understandings of destitution focus on survival needs. Similarly to this, the statutory definition understands destitution to be a lack of adequate accommodation (or the means to obtain it) or an inability to meet ‘other essential living needs’. This draws parallels to the notion of survival needs. Even so, in the case of Refugee Action  the concept of essential living needs was interpreted widely. It goes beyond food, clothes, and shelter to include, amongst other things, ‘The opportunity to maintain interpersonal relationships and a minimum level of participation in social, cultural and religious life.’ However, these statutory provisions apply only to those subject to the Immigration and Asylum Act and, even then, the judiciary have limited their intervention with respect to the experience of destitution to limited circumstances.
Focusing on the notion of essential needs, the JRF definition of destitution may perhaps be regarded as narrower than the understanding of destitution offered in the case law. The JRF regards people to be destitute if they – over the past month and due to an inability to afford – lacked two or more of: shelter, and slept rough for 1 or more night; food, and had fewer than 2 meals for 2 or more days; the ability to heat their home for 5 or more days; the ability to light their home for 5 or more days; weather appropriate clothing and footwear; basic toiletries.
Destitution and ESCR
The needs identified both in the case law and the JRF definition correlate to a number of economic, social, and cultural rights for which – recent research shows – there is broad public support in England. In particular, the needs which must be met in order to avoid destitution correlate to the right to an adequate standard of living – as contained in Article 11 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). The provision includes the right to adequate food, the right to adequate clothing, the right to adequate housing and the right to the continuous improvement of living conditions. Additionally, the right to water and the right to sanitation have also been derived from this provision. Given that the rights correlate to the needs which must be met in order to avoid destitution, it follows that the adequate realisation of these rights can prevent destitution. More so, in its 19th General Comment, the Committee on Economic, Social and Cultural Rights (CESCR) has clearly linked the right to social security (Article 9 of the ICECSR) to the realisation of the right to an adequate standard of living (and its constituent rights). Thus, when the rights correlating to the needs which are required to be met to avoid destitution cannot be realised, the social security (welfare) system should intervene to ensure the adequate realisation of these rights.
The UK is failing to comply with its ESCR obligations
In 1976, the UK agreed to follow the ICESCR and as such willingly assumed the obligations stemming from the rights enshrined in this treaty. The scale of destitution in British society demonstrates that the UK is failing in its obligations under the ICESCR. These failures are further evidenced in the CESCR’s latest concluding observations on the UK’s implementation of the ICESCR as well as the report of Philip Alston (the then Special Rapporteur on Extreme Poverty and Human Rights) following his visit to the UK.
A way forward
In the UK it is uncontroversial to say that individuals should have access to adequate housing, adequate sanitation, adequate water, adequate food, and adequate clothing and there is a public consensus for the protection of these necessities. The eradication of destitution in the UK necessitates – and can be achieved by – the adequate realisation of these rights. Thus, in order to tackle destitution, the UK must be encouraged to fulfil the obligations which it has voluntarily assumed under the ICESCR.