The duty to ‘take steps’

Article 2(1) requires states to ‘take steps’ towards the full realization of ESC rights. Taking steps can be understood as a duty to design strategies and programmes to achieve the full realization of ESC rights.⁷ The steps taken must be deliberate, concrete and targeted.⁸ This is an immediate and process-based obligation, meaning that the obligation gives rise to the right to a process and the development of a policy to achieve a rights-compliant outcome. It is considered an immediate duty as it is expected that any state, in whatever level of development, can put in place basic steps to progress ESC rights realization. Thus, while the full realization of a particular right might not always be possible immediately, a component of the duty to progressively realize ESC rights is that there is a plan, process or policy in place to achieve fulfilment. A violation of this duty can be understood as a failure to reasonably plan, adopt strategies and implement policies or programmes to achieve a specific ESC right. International law applies ‘proportionality inflected reasonableness’ in assessing whether reasonable steps have been taken, learning from the established practice in the South African Constitutional Court.⁹

The duty to respect, protect and fulfil

The duty to respect requires states to refrain from acting in a way that would undermine the right – that is, taking any action that results in a reduction of the right in law (de jure) or in practice (de facto). The duty to protect requires action to prevent others from interfering with the enjoyment of the right, including private third parties that may be responsible for operationalizing the right – for example, in cases of private actors delivering services that are central to realizing ESC rights, such as housing or the care sector. Finally, the duty to fulfil can be understood as a need to facilitate, promote and provide for ESC rights by taking the necessary steps to ensure they can be enjoyed by all within the maximum available resources of the state. This means that states should take concrete steps to progressively improve ESC rights to the maximum of their available resources (that is, the amount of revenue the state generates).¹²

The duty to gather and deploy maximum available resources

The duty to gather and deploy the maximum available resources (MAR) to achieve progressive realization can be broken down into subcategories. First, there is an expectation that states will prepare and plan budgetary allocation in advance in order to realize ESC rights. This does not mean that a state must use all of its resources on meeting ESC rights, but rather that it must use the MAR that can be expended for a particular purpose without sacrificing other essential services.¹³ In order to meet this obligation, states must ensure that resources are generated in a manner that reflects national economic growth – in other words, that there is a correlation between overall national wealth and the generation of revenue through tax resources.¹⁴ If, for example, government spending on the realization of ESC rights is dropping relative to gross domestic product (GDP) or other government expenditures, while not an immediate violation, it is a ‘strong indication that there are available resources but that a particular right has not been prioritised’ and thus risks falling short of the MAR obligation.¹⁵

Second, according to the international framework, the allocation of resources must be effective (achieve its aim), efficient (achieve the highest quality with minimum waste/effort), adequate (sufficient to meet the thresholds of dignity/progressive realization) and equitable (prioritization of the most marginalized with the aim of achieving substantive equality). Adequacy can be further broken down into subcategorizations of availability, accessibility, acceptability and quality (the AAAQ framework).¹⁶ Third, an important point to note is that resources should not be viewed as purely financial, but human, social, technological, informative, natural and administrative resources can also be considered.¹⁷ States can demonstrate how each of these resources is deployed as part of any national strategy/policy. Importantly, compliance with the obligations is largely left to the discretion of state parties to demonstrate what steps it has taken to deploy resources in order to realize ESC rights.

In short, there is no singular framework from which to monitor the use of MAR. Assessment of whether the state is meeting its obligations would be dependent on whether the state can demonstrate and justify that its approach is reasonable. This in turn requires budgetary decision making to be transparent, participatory and accountable, and there remain numerous practical steps that states can take to better realize human rights through their budgets and demonstrate compliance with MAR.¹⁸ As an example, by disaggregating data to better understand how money is spent, uncovering potential hidden gaps in the allocation of funding can illuminate how different groups are impacted, including those groups specifically protected under international human rights law and who face potential intersectional inequality (including women, children, disabled persons and ethnic minorities). This type of budget analysis is already well underway across the UK from the perspective of gender justice, but is also increasingly of interest to human rights practitioners and advocates both internationally and within the UK.¹⁹

The duty to ensure nondiscrimination

States must ensure nondiscrimination so that access to and delivery of rights occurs in a way that does not exclude groups, particularly those who are marginalized and possibly ‘hidden’ from the system. Before designing and implementing an inclusive system to deliver/provide a right, decision makers should explore and understand those who are disadvantaged and excluded, including what their needs and vulnerabilities are.²⁰ The ICESCR obliges states to guarantee the rights without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status (Article 2(2)). To fulfil this obligation, states need to gather and generate disaggregated data across various characteristics, including gender, age, geographical location, ethnicity, health status and economic status. It is important that a reliable evidence base is developed to ensure that people are not denied access to the system or inadvertently excluded from the government’s strategy. This approach means that a ‘deeper evidence base can improve the understanding of how programmes can best address structural and societal power imbalances, while also encouraging greater equity and empowerment for society’s most disadvantaged members’.²¹

The duty to provide a minimum core

The minimum core obligation (MCO) for each ESC right acts as a basic minimum threshold below which no one should fall. It is the absolute minimum criteria that is immediately applicable to all states in the fulfilment of ESC rights. It should be understood as complementary to progressive realization rather than as an alternative. This is important in order to ensure that the MCO of the right remains a floor of realization and does not risk becoming a ‘ceiling’.²² International law suggests that a MCO is legally binding and most likely nonderogable (meaning states cannot justify noncompliance).²³ However, what it means in practice is not necessarily always clear. Some of the UN General Comments elaborate minimum core entitlements, but they do not carry this out in a consistent manner across all ESC rights.²⁴ Those in favour of the doctrine argue that it is necessary to ensure that, at the very least, minimum criteria are in place to avoid destitution and that the obligations of progressive realization is not overly flexible. Critics of the MCO doctrine fear that by setting minimum criteria, states will be concerned with achieving minimum standards rather than reaching beyond minimum criteria to progressive standards. There is also disagreement as to what the MCO constitutes in both the literature and practice.²⁵ By way of a brief summary, these arguments centre on whether the obligation requires all states to meet the same minimum absolute standards or whether a relative standard should apply.²⁶ Put more simply, should all countries be expected to meet the same core standards or are states parties to the ICESCR free to adopt their own ‘core’ for ESC rights which better reflect the basic needs, culture and resources of the state? Some prominent commentators question its value to the legal framework as a whole due to the complexity of considerations it raises when implemented.²⁷

In practice, the UN legal position has been to place the onus on states themselves to determine what actually constitutes an MCO in any given context, depending on a number of variables such as the right in question, the resources available, the measures taken and the prevailing social, economic, cultural, climatic, ecological and other conditions.²⁸ Best practice would suggest that states adopt both absolute and relative criteria to assess MCO compliance.²⁹ Adopting both means ensuring there is an international minimum core entitlement to survival, while also enabling individual states to be able to set a higher standard of core obligations domestically in accordance with their particular constitutional arrangements and individual capacity. Current discussions in the UK on the incorporation of international human rights treatises, most notably in Scotland, have led to novel approaches to defining MCO via participative and deliberative approaches, the development of which has, for example, notably included the voices of those most marginalized and disadvantaged in Scottish society.³⁰

Limitations and the duty of nonregression

Rights can be limited according to the principles of legality, legitimacy, and proportionality. States are under a duty to avoid measures which reduce access to or delivery of the right (nonregression). The principle of nonregression, also referred to as the duty not to take retrogressive steps, is key to decision-making frameworks for governments. It imposes a duty on states to ensure that there is no ‘backsliding’ on rights provision and that progressive realization is not subject to periods of decline, even in the most difficult of circumstances, including national or international crises.³¹ Indeed, it is in times of crisis that states must do all they can to avert any backsliding in the realization of ESC rights, as a failure to do so may result in longer-term damage.³² The UN Committee on Economic, Social and Cultural Rights (CESCR) suggests regressive measures that amount to a ‘general decline of living and housing conditions directly attributable to policy and legislative decisions by State Parties, and in the absence of accompanying compensatory measures, would be inconsistent with the obligations under the Covenant’.³³

In other words, backward steps in the provision of rights are counterproductive to progressive realization. In international law, any deliberate retrogressive measure requires the most careful consideration.³⁴ Any violation of a right because of a deliberate retrogressive measure can only be justified in the most exceptional of circumstances and states must be able to explain that the action is reasonable, proportionate, nondiscriminatory, temporary and does not breach the MCO, as well as demonstrating that all other potential alternatives were considered.³⁵ Further, as recent work by Liebenberg on nonretrogression in South Africa has demonstrated, the doctrine provides a potential tool from which to hold states accountable for regressive budgetary allocations.³⁶

Access to an effective remedy

States are under a duty to provide access to an effective remedy if there is a failure to meet the obligations imposed by progressive realization. Effective remedies are discussed in more detail in Chapter 5. Effective remedies include facilitating access to a legal remedy in court if necessary, implying the existence of both a substantive and procedural duty towards rights bearers on the part of state parties.³⁷ Remedies may also include administrative, judicial and legislative actions.

The three potential functions of a remedy are:

1. a)its capacity to place the right holder in the same place as was the case prior to the SR violation (restitution);
2. b)ensuring ongoing compliance with a SR (equilibration); and
3. c)engaging with the feature of the legal system that caused the rights violation (nonrepetition).³⁸

Remedies should also be appropriate, sufficient and accessible in terms of meeting these aims.³⁹ Domestic remedies for SR violations usually take three broad forms: individual (they help address a violation for one person), programmatic (they address a systemic issue that impacts lots of people) and hybrid (they achieve a mixture of both individual and systemic relief). A singular focus on any one of these could result in problems. For example, courts that focus solely on individual cases may jeopardize relief for a broader class of petitioners, while leaving intact a systemic feature of a legal system that may require attention, thereby being unable to ensure nonrepetition of the rights violation. Likewise, delivering only system-wide relief may leave individual petitioners without access to a remedy. Hybrid remedies that combine individual and systemic relief have been the most ‘effective’ kind, while also being capable of engaging with structural constitutional principles like the separation of powers and parliamentary sovereignty that seek to constrain judicial power in jurisdictions like the UK.

Hybrid remedies of the kind referred to earlier may also take the form of collective litigation in situations involving multiple complainants and multiple duty bearers. Such ‘dialogic’ forms of judicial remedies are especially suited to claims involving ESC rights, which may often require an institutional expertise that courts may not have. In such cases, courts may consider the meaning and content of rights, but defer back to the decision maker in relation to the remedy. The court can also play an important role in mitigating interinstitutional confrontation where there may be more than one department responsible (this can include between executive departments at the national level or indeed disputes about obligations between the national and devolved levels). Dialogic forms of judicial remedies can be innovative in nature in an exploration of how best to address systemic issues. In such kinds of remedies, courts can act as an intermediary between different rights holders and duty bearers to find an effective remedy that requires multiple duty bearers to respond as part of a structural interdict (a hybrid remedy that can offer individual and systemic relief potentially involving multiple applicants and multiple defendants). Structural remedies are discussed in more detail in Chapter 5.

Thus far we have explored, in brief, the outlines of the obligation to progressively realize ESC rights and the interlinked multitude of subduties to which this gives rise. Understanding this framework not only provides further clarity to states as to the expected actions in relation to ESC rights, but also a toolkit for advocates, practitioners and rights holders with which to hold states and domestic public institutions to account. The following discussion focuses on unpacking this in relation to the well-established ESC rights to food, housing, social security and fuel. Each has a wealth of international guidance and accompanying academic commentary which cannot exhaustively be covered in this chapter. The aim is therefore to set out key aspects of the rights normative content and explore how other jurisdictions have provided domestic legal protection.

Availability

The Food and Agriculture Organization (FAO) have taken this further and elucidated the need for, at a national level, the facilitation of stable and sustainable food supplies. Sustainability is now a key feature of the right to food and has been further cemented by the Sustainable Development Goals (Goal 2: End hunger, achieve food security and improved nutrition and promote sustainable agriculture),⁴⁷ which stretches the definition to encompass a state’s overall agricultural production and its place in global food markets.⁴⁸

Accessibility (physical and economic)

Adequacy

From here, the adequacy of food can be broken down into three key components, each providing its own layer of protection:

1. 1)Adequate food must satisfy dietary requirements.
2. 2)Adequate food must be safe for human consumption.
3. 3)Adequate food should be culturally appropriate.

The minimum core requires a minimum essential level of benefits to all individuals and families that will enable them to acquire at least essential healthcare, basic shelter and housing, food, water and sanitation, and the most basic forms of education.⁵² With regard to the right to food, states have a core obligation to take all necessary action to ‘mitigate and alleviate hunger’.⁵³ Moreover, if any significant number of individuals within the state is suffering from acute hunger or starvation, it is prima facie failing to meet the core obligation of the right. If the state fails to meet these obligations owing to resource constrains, it must demonstrate that every possible effort has been made to use all available resources to satisfy the minimum core.

UK compliance with the right to food

Currently, due to the lack of domestic legal protection for the right to food, alongside rising food insecurity and food bank usage, and a failure to fully implement the UK right to food strategy,⁵⁴ it has been widely argued the UK is not complying with the right to adequate food.⁵⁵ This is emphasized by the fact that the number of UK food banks in use in the last ten years has grown from fewer than 30 to now well over 2,000.⁵⁶ The need for food charity is now widespread across all four nations of the UK.⁵⁷ While Scotland and Wales have acted within their devolved competencies to mitigate the worst effects of austerity policies, food bank usage has continued to grow.⁵⁸ Other issues with the food system range from the existence of ‘food deserts’, where there is lack of access to nutritional food, to issues within sustainability of food production and a reliance within the UK on food imports and international trade.⁵⁹

To provide more context, the UK’s approach to the right to food has been increasingly raised and criticized by the UN treaty monitoring and reporting as well as by UN Special Rapporteurs. In its concluding observations in 2016, the CESCR raised its concerns ‘about the lack of adequate measures adopted by the State party to address the increasing levels of food insecurity, malnutrition, including obesity, and the lack of adequate measures to reduce the reliance of food banks’.⁶⁰

The CESCR also urged the UK to restore the link between the rates of state benefits and the costs of living and guarantee that ‘all social benefits provide a level of benefit sufficient to ensure an adequate standard of living, including access to health care, adequate housing and food’.⁶¹ The UN Committee on the Rights of the Child (UNCRC) has recommended that the state should regularly monitor and assess the effectiveness of policies and programmes on child food security and nutrition, including school meal programmes and food banks, and programmes addressing infants and young children, as well as to systematically collect data on food security and nutrition for children.⁶² Further concerns were raised by the Special Rapporteur for Extreme Poverty in 2019, with the report identifying ‘a shocking increase in the number of food banks’ across the UK.⁶³ The report brought to light the inadequacy of the UK’s social security system to meet the needs of people who are food insecure. This has been echoed by a range of reports.⁶⁴

Further still, the Special Rapporteur on the Right to Food wrote a letter to the UK government concerning ‘the deepening level of food insecurity among low-income households, particularly families with children, and the lack of comprehensive measures to ensure their access to adequate food’.⁶⁵ Evidently, there is strong international concern that the UK is not complying with the right to food as laid out by international human rights law.

Applying the AAAQ framework

The following points give a summary of the right discussed earlier and what exactly it involves:

• Availability: The availability of services, material, facilities, and infrastructure. In particular, access to natural and common resources, safe drinking water, energy for cooking, heating and lighting, sanitation and washing facilities, means of adequate housing storage, refuse disposal, site drainage and emergency services.

• Cultural adequacy: The way in which housing is constructed, the building materials used and the policies supporting these must appropriately enable the expression of cultural identity and diversity of housing to reflect different housing needs.

• Habitability: Adequate space and protection from cold, damp, heat, rain, wind or other threats to health, structural hazards, and disease vectors must be ensured. The physical safety of occupants must also be guaranteed.

• Affordability: Personal or household financial costs associated with housing should be at such a level that the attainment and satisfaction of other basic needs are not threatened or compromised. Housing costs should be commensurate with income. There should be protection from unfair rent and unfair rent increases.

• Accessibility: To be accessible for all disadvantaged groups.

• Security of tenure: For example, legal protection against forced eviction.

• Appropriate location: Adequate housing must be in a location which allows access to employment options, healthcare services, schools, childcare centres and other social facilities.

• Adoption of a national housing strategy: This strategy should reflect extensive genuine consultation with, and participation by, all of those affected, including the homeless, the inadequately housed and their representatives.

In January 2018 the UN Special Rapporteur on the Right to Housing introduced a set of key principles on which effective rights-based housing strategies should be based.⁶⁸ In 2019, this was elaborated upon with 16 guidelines being provided in order to enable states to implement the right to housing.⁶⁹ These principles and guidelines, alongside the normative content outlined earlier, provide states with adequate direction to realizing the right to housing domestically. The minimum core, as outlined by the CESCR, requires states to take action to address homelessness and inadequate housing within their jurisdictions.⁷⁰ Forced evictions are considered to breach the right to housing and are only allowed in limited circumstances. When a forced eviction does occur, due process should be followed, there should be consultation in advance and an opportunity to seek a remedy, and those being evicted must be offered alternative accommodation.⁷¹

UK compliance with the right to adequate housing

The right to housing is currently not recognized in law in the UK, despite it being recognized commonly in other jurisdictions. States across Europe have recognized the right to housing in their constitutions.⁷² Alongside the expected treaty monitoring on the right to housing, in 2013, the UK was subject to scrutiny by the UN Special Rapporteur on housing, who raised significant concerns about access to the right, including the adverse impact on disadvantaged groups such as those living in poverty, homeless persons, the disabled, the elderly, young people, the Gypsy Traveller community, migrants, Roma and the Catholic community in Northern Ireland (NI).⁷³ The UK has for a long time provided welfare and benefits through a number of different statutory schemes and when asked about implementing the right to housing, the UK government refers to the broad base of welfare-based legislation that constitutes the structure of the welfare state.⁷⁴ However, the legislation, whether derived from Westminster or the devolved level, is not necessarily designed to comply with international standards, which can create a housing rights accountability gap.

In 2016, the CESCR raised concerns about the ‘persistent critical situation in terms of the availability, affordability and accessibility of adequate housing … in part as a result of cuts in State benefits’.⁷⁵ The Committee also raised concerns about the lack of social housing, forcing households to move into the private rental sector, which is also not adequate in terms of affordability, habitability, accessibility and security of tenure.⁷⁶ It noted the significant rise in homelessness, particularly in England and NI affecting mainly single persons, families with children, victims of domestic violence, persons with disabilities and asylum seekers. It also raised concerns about the adverse impact that reforms of social security and reductions in financial support to local authorities have had on the right to adequate housing, especially with regard to the criminalization of rough sleeping.⁷⁷

Recent evidence submitted to the CESCR in early 2023 has demonstrated that many of the issues raised in 2016 are still prevalent throughout UK society, and in some instances have deteriorated further. As a UK-wide non-governmental organization promoting economic, social and cultural rights, Just Fair is responsible for preparing the UK parallel civil society report to CESCR as part of the Committee’s review of UK compliance. Just Fair has collated a range of evidence from across civic society in England and Wales, and raised a plethora of issues covering the right to housing. To provide some insight into the key areas raised, Just Fair’s evidence demonstrates concerns over the extensive use of the ‘private rental sector to meet public housing needs and address homelessness’ and an overall ‘lack of adequate affordable housing and inadequate support to meet unregulated rental costs’.⁷⁸ These are structural issues with the delivery of public housing policies which lead to further issues of overcrowding in accommodation and adversely impact the habitability of the housing in question. Furthermore, homelessness remains a significant issue in the UK, where ‘families experiencing homelessness are left in temporary accommodation for long periods of time’.⁷⁹ Specific groups still suffer far more acutely from a lack of adequate housing, with the evidence providing the insight that the ‘accessibility of culturally appropriate housing for Gypsy and Traveller people persists as an inadequately address[ed] issue’.⁸⁰

In relation to Scotland specifically, the Committee highlighted the chronic shortage of social housing particularly for the most disadvantaged and marginalized, such as persons with disabilities.⁸¹ The UNCRC has urged Scotland, as well as other parts of the UK, to strictly implement the legal prohibition of prolonged placement of children in temporary accommodation by public authorities, to reduce homelessness and to ensure that children have access to adequate housing that provides physical safety, adequate space, protection against threats to health and structural hazards, (including cold, damp, heat and pollution and accessibility for children with disabilities), and to introduce a statutory duty for local authorities to provide safe and adequate sites for travellers.⁸² In relation to NI, the CESCR echoed the findings of the UN Special Rapporteur and encouraged the NI Assembly to ‘intensify its efforts to address the challenges to overcoming persistent inequalities for Catholic families in North Belfast, including through meaningful participation by all actors in decision-making processes related to housing’.⁸³

In 2019 the UN Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance identified key state failings in the right to adequate housing for different minority groups. For example, the Special Rapporteur’s UK report noted that children from Pakistani or Bangladeshi households (28.6 per cent) and Black households (24.2 per cent) were more likely to live in substandard accommodation than those in White households (18.6 per cent).⁸⁴ The report noted that the Race Disparity Audit found that in England in 2015–2017, Black African and Black Caribbean households were the ethnic groups most likely to rent social housing (47 per cent and 45 per cent respectively).⁸⁵ The Special Rapporteur also drew attention to the 2013 Scottish Parliament Equalities Committee report, which set out that Gypsies and Travellers lived in ‘horrendous conditions’. For example, the Committee observed that families paying rent to their local council were ‘expected to bathe young children in freezing cold amenity blocks with extortionate heating costs’. It also observed unacceptable conditions in some settlements, including ‘a putrid overflowing septic tank’, and wrote ‘that elderly and disabled people might have to go outside to a toilet block in the middle of a cold, winter’s night’. The Special Rapporteur’s own consultations with Gypsy, Roma and Traveller communities revealed that access to adequate housing solutions that respect ancestral nomadic traditions remains a major challenge across the UK, especially in Wales.⁸⁶ The UN Special Rapporteur on Poverty also identified key state failings in relation to housing stating: ‘In England, homelessness rose 60 per cent between 2011 and 2017 and rough sleeping rose 165 per cent from 2010 to 2018.’⁸⁷

In our study, practitioners highlighted issues with access to justice mechanisms where people do not receive adequate advice or representation in adversarial eviction processes (where often the landlord is represented and the tenant is not). Practitioners also raised concerns with regard to the adequacy of housing standards and insufficient legal rights to ensure adequate heating and ventilation in order to address issues like mould and damp or to ensure habitability of housing – several practitioners noted those in housing need relying on charity to provide gas, electricity, furniture and white goods. Concerns were raised about the lack of accountability in the private sector, including both poor standards of housing and processes of eviction without due process. There are significant barriers faced by different groups – for example, a practitioner reported that the minority Catholic population in north Belfast still constitutes 94 per cent of those in housing need (NI, Esther, Housing activist, NGO for human rights). Likewise, research in Scotland highlighted the implications of the hostile immigration environment, where those seeking asylum are faced with precarious housing conditions (including eviction without notice and unrealistic demands on tenants remaining in accommodation, unable to stay overnight with friends or family and unable to have visitors stay with them). There is sufficient evidence to suggest that even if there are examples of good practice in the provision of adequate housing, the UK is not meeting its international obligation to provide for the right to housing in a manner that is compliant with its international human rights obligations.

Availability

The right to social security requires the state to introduce a scheme, or a variety of schemes, which are available and in place to ensure that benefits are provided for the relevant social risks that people face in their everyday lives. This includes protection in the areas of: (a) lack of work-related income caused by sickness, disability, maternity, employment injury, unemployment, old age or death of a family member; (b) unaffordable access to healthcare; or (c) insufficient family support, particularly for children and adult dependants.

Adequacy

The right to social security must include the distribution of benefits, whether in cash or in kind, which are adequate in terms of amount and duration in order that everyone may realize their rights to family protection and assistance, an adequate standard of living and adequate access to healthcare. This means that the level at which benefits are set should be enough to ensure a life of dignity.

Affordability

If a social security scheme requires people to make financial contributions, then those contributions should be communicated to people in advance of a scheme being set up. The direct and indirect costs and charges associated with making contributions must be affordable for all and must not compromise the enjoyment of other rights, such as access to housing, food, healthcare or education. Normally there will always be a need to have a noncontributory scheme so that those who cannot generate income through employment will still have access to a social security system to protect them.

Accessibility

All persons should be covered by the social security system, especially individuals belonging to the most disadvantaged and marginalized groups, without discrimination on any of the grounds of race, colour, sex, age, language, religion, political or other opinion, national or social origin, property, birth, physical or mental disability, health status, sexual orientation, or civil, political, social or other status. Social security services must allow for physical access for those who require it. They should not be provided in a way that excludes certain groups.

In meeting the MCO of the right to social security, the CESCR has outlined specific core obligations as follows:

• To ensure access to a social security scheme that provides a minimum essential level of benefits to all individuals and families that will enable them to acquire at least essential healthcare, basic shelter and housing, water and sanitation, foodstuffs and the most basic forms of education. If a state party cannot provide this minimum level for all risks and contingencies within its MAR, the Committee recommends that the state party, after a wide process of consultation, should select a core group of social risks and contingencies.

• To ensure the right of access to social security systems or schemes on a nondiscriminatory basis, especially for disadvantaged and marginalized individuals and groups.

• To respect existing social security schemes and protect them from unreasonable interference.

• To adopt and implement a national social security strategy and plan of action.

• To take targeted steps to implement social security schemes, particularly those that protect disadvantaged and marginalized individuals and groups.

• To monitor the extent of the realization of the right to social security.⁹¹

UK compliance with the right to social security

The 2016 CESCRs concluding observations on the UK outlined some steps it can take to ensure closer compliance with the right to social security, which demonstrates the types of actions the CESCR is seeking. For example, in relation to working conditions in the UK, the CESCR stated: ‘Ensure that the labour and social security rights of persons in part-time work, precarious self-employment, temporary employment and “zero-hour contracts” are fully guaranteed in law and in practice.’⁹⁴ More specifically in relation to social security, the CESCR called on the UK to:

• review the entitlement conditions and reverse the cuts in social security benefits introduced by the Welfare Reform Act 2012 and the Welfare Reform and Work Act 2015;

• restore the link between the rates of state benefits and the costs of living, and guarantee that all social benefits provide a level of benefit sufficient to ensure an adequate standard of living, including access to healthcare, adequate housing and food;

• review the use of sanctions in relation to social security benefits and ensure that they are used proportionately and are subject to prompt and independent dispute resolution mechanisms;

• provide in its next report disaggregated data on the impact of the reforms to social security on women, children, persons with disabilities, low-income families and families with two or more children.⁹⁵

In addition, the European Committee on Social Rights has concluded that the UK is not in conformity with the right to social security as required by the European Social Charter, which requires states to establish, maintain and progressively improve their social security system.⁹⁶ The Committee concluded in January 2018 that the level of statutory sick pay and long-term incapacity benefits are inadequate, as are the minimum levels of employment support allowance and unemployment benefits.⁹⁷ Thus, drawing from international monitoring would suggest that currently the UK is not meeting its international obligations in relation to social security provision.

The UK is undergoing a CESCR review at the time of writing, with evidence submitted to the Committee from a range of civic society, including Scotland’s National Human Rights Institution (NHRI).⁹⁸ The concluding observations and recommendations remain outstanding at the time of writing. However, the evidence submitted gives a strong insight into the plethora of issues that remain in relation to the UK’s approach to social security. According to Just Fair’s collective evidence on social security in England and Wales, ‘[s]ocial security is not adequate: both in terms of the underlying level not being enough to meet essential needs, and the failure to update provision to keep parity with inflation and rises in cost-of-living’.⁹⁹ The report goes on to discuss a wealth of issues, from the regressive measures of removing the £20 uplift to Universal Credit, to the significant impact of the benefit cap freeze alongside rising prices during a stubborn cost-of-living crisis. Further still, it has been shown that a lack of rights-compliant social security provisions has a direct impact on areas like ‘in-work’ poverty, which rose 13 per cent between 1996/1997 and 2019/2020. Due to the importance of adequate social security in alleviating poverty, this has led to an increase of children in poverty in the UK, with Just Fair reporting that in some areas of the UK ‘the number of children in in-work poverty has risen by 91 per cent since 2014/15’.¹⁰⁰

It is also increasingly clear that those hit hardest by the inadequacy of the system are often from ethnic-minority backgrounds, raising the discriminatory impacts of social security policy and provision. Significant issues with the overall operability of the system have also been shown, with Just Fair’s report identifying further issues of: insufficient capacity to minimize administrative delays, which creates cycles of debt and hardship; the five-week delay for first Universal Credit payments pushing people into debt; the need for further access to adequate advice and an emergency response scheme to help with essential living costs; and the inadequacy of disability benefits to meet the additional costs of living with an impairment.¹⁰¹ These represent bleak circumstances for many and are merely a selective insight into the extent of issues with social security provision in the UK. This would suggest that significant action is needed by the state to meet its requirements under Article 9 ICESCR.

Identifying the right to fuel

This section will consider the theoretical basis for a right to fuel. This can be carried out in a range of ways and from differing perspectives.¹¹⁹ Hesselman’s exploration of international, regional and national laws in relation to energy access concludes that fuel and energy are integral to realizing the right to an adequate standard of living.¹²⁰ Her work suggests that there is a clear legal basis from which to understand and build a human rights approach to energy access, in which, we argue, fuel plays an integral part.

From this guidance, not only does the HRC emphasize the need for positive action in relation to protecting the CP right to life and once again undermine the poorly conceived, but once widely held understandings of negative and positive human rights duties, it also establishes electricity alongside other essential basic services explicitly or implicitly recognized as human rights within the ICESCR. The ECHR has also demonstrated willingness to protect CP rights due to deprivation caused by lack of access to fuel. A successful challenge of the right to life on the grounds of destitution, of which fuel was an aspect, was found in Nencheva v Bulgaria.¹²⁸ In this case, the court found the State of Bulgaria had failed to act sufficiently in relation to a care home where its residents were facing destitution, without access to nutritious food, sufficient heating and general basic care. Fifteen children and young adults lost their lives in the state institution, despite warnings about the risks residents were facing. In its reasoning, the court laid out that due to the vulnerability of the children, their role in providing care, and knowledge of the conditions the institution was facing, there had been a clear breach of Article 2 ECHR (the right to life).¹²⁹ While Nencheva provides the clearest example of violated ESC rights giving rise to a breach of Article 2, there are several other important cases in which the court has raised the impact poor heating (or a lack of it altogether) can have on patients of hospitals and inmates of state prisons.¹³⁰ While these cases do not discuss fuel directly, or a right to it, the willingness of the court to associate heating as a core element of securing a person’s basic needs would suggest that in very serious cases of fuel poverty, where it is so severe that here is a risk to life, the court could find a violation of Article 2. As a different example, in the Netherlands, the Supreme Court recognized that Article 2 and Article 8 (the right to private and family life) require the state to undertake more ambitious climate action, with significant implications for national energy policies.¹³¹ As a result of the case, the government announced a €3 billion spending package to subsidize, among other things, renewable energy projects and home refits.¹³²

Meaning and content of the right to fuel

Having discussed viewing fuel as a derivative right necessary for the realization of many ESC rights, our attention must now turn to defining what the core elements of such a right would be. As a derivative right without clear international guidance, these elements must be derived from elaborations of other rights, such as the right to an adequate standard of living and health. The right to an adequate standard of living acts essentially as a precondition for a life lived with dignity and consists of the right to housing, food, clothing, water and sanitation.¹³³ We can therefore assess the relationship between fuel and these rights to establish its basis in the international legal framework. Here we will focus on fuel and the right to adequate housing due to how the issue is defined and measured within the UK;¹³⁴ however, it is important to recognize that a similar process could be carried out in relation to the right to health or the right to food.¹³⁵

Here, General Comment No. 4 emphasizes the need for the ‘availability of services’, of which fuel will be an integral part. This language is echoed by the European Social Charter, which provides that adequate housing requires ‘all basic amenities, such as water, heating, waste disposal, sanitation facilities, [and] electricity’.¹³⁸ Thus, availability forms our first key element. Affordability is another key component underpinning the right to fuel. General Comment No. 4 discusses the need for ‘personal or household financial costs associated with housing to be at such a level that the attainment and satisfaction of other basic needs are not threatened or compromised’.¹³⁹ With most UK households heated by fuel, gas or electricity, its affordability will primarily dictate the overall affordability of maintaining an adequate home. Finally, General Comment No. 4 lays out the condition of habitability in meeting the right to adequate housing. Housing must have ‘adequate space and protection from cold, damp, heat, rain, wind or other threats to health’.¹⁴⁰ In colder climates, access to fuel means access to heating, which is an essential tool in staving off the cold and the inevitable creep of damp which follows. This leads to the conclusion that fuel must be accessible to homes in a sufficient quantity to meet the condition of habitability, such as in particularly cold or more rural conditions.

The following key criteria can be understood as constituting the right to fuel:

• Availability: Fuel must be made reliably available to all through the development of suitable infrastructure, facilities and delivery.

• Accessibility: Fuel must be made accessible to all without discrimination, including for all included in disadvantaged or marginalized groups, in sufficient quantities so as to ensure the adequate habitability of their home.

• Affordability: Fuel must be made affordable for all. Where fuel is unaffordable or prices rise suddenly, support mechanisms should be made available to those who are vulnerable to fuel poverty. The cost of fuel should be at such a level that the attainment and satisfaction of other basic needs are not threatened or compromised.

These elements of the right are clearly interlinked, but there is a further important element to consider which is not directly derived from an ESC right. Through its nexus with Goal 7 of the Sustainable Development Goals, which dictates access to ‘affordable, reliable, sustainable and modern energy for all’,¹⁴¹ the right to fuel must also have an element of sustainability included. Again, delving into debates on energy rights and justice, it is clear that further action is required to ensure obligations around the provision of fuel do not present a choice between heating your home and reducing your carbon footprint.¹⁴²

Sustainability: The availability of fuel should not come at the expense of sustainable development. Where there is a transition from fossil fuels to more renewable sources of energy, this must be carried out in a manner which does not undermine the availability, accessibility or affordability of fuel. In short, the cost of energy transitions cannot be footed by those least able to afford it.

Progressive realization of the right to fuel

As explored at the outset of this chapter, the nature of the progressive realization obligation requires a multitude of interlinked duties to be met, including that states respect, protect and fulfil the right to fuel. This means that states should progressively achieve the right to fuel to the maximum of their available resources. They must take steps to refrain from acting in a way that would undermine the right to fuel – that is, take any action that results in reducing the right (the duty to respect). For example, the state must not interfere with the production and distribution of fuel in a manner which would undermine the realization of the right. It must also take action to prevent others from interfering with enjoyment of the right, including private third parties that are responsible for the production and delivery of fuel in the UK (the duty to protect). This requires the UK to have appropriate regulatory mechanisms in place to ensure that private ownership of fuel production does not interfere with the realization of fuel as a human right. Finally, the state must facilitate, promote and provide the right to fuel by ensuring that the right can be enjoyed by all to the maximum of its available resources (the duty to fulfil). Fulfilling the right to fuel could take many forms, from the expansion of renewable infrastructure, to putting in place appropriate social security schemes to ensure that the worst consequences of global markets and private companies fuel price rises do not fall on those who can least afford it.

Furthermore, the UK must demonstrate how it is using the maximum of its available resources to deliver upon the right. Where the violation of an ESC right is evident throughout a state, there is an increased justificatory burden for the state to show that the violations took place despite its use of MAR. Evidently connected to budgetary decision making, the duty requires the UK government to adequately generate, allocate and spend resources to the maximum extent possible in order to ensure that people have access to and can afford fuel. This obligation generally requires the allocation of further financial resources from the central government. As the CESCR’s recent concluding observations on Belgium reiterate: ‘The Committee recommends that the State party take the measures necessary to ensure a minimum supply of energy, even when a meter is installed. It also recommends that the State party expand coverage for beneficiaries of the social tariff, by allocating more financial resources to the Gas and Electricity Fund.’¹⁴³ The CRC too has raised the need for transparency of financial resources being allocated to deliver basic services for children in Greece in relation to energy.¹⁴⁴ When considering these concluding observations and taking into account the many other instances where guidance has been provided on the MAR duty,¹⁴⁵ it is clear that the generation, allocation and expenditure of a state’s resources should adequately account for the need to divert resources to ensuring the right to fuel is being progressively realized.

There is a further area to consider. The obligation to spend MAR within a state is often discussed purely in relation to financial resources. However, with a right to fuel, questions can be raised in relation to a state’s natural resources, and these being used to the maximum extent possible to ensure the realization of the right to fuel. De Schutter notes that ‘a State’s population has a right to enjoy a fair share of the financial and social benefits that natural resources can bring’.¹⁴⁶ Also coined natural capital in wellbeing economics, natural resources can refer to a state’s environmental assets, biodiversity, soil and ecosystems. The use of natural resources, particularly in relation to the transition to renewable energy, should therefore also be considered when assessing whether a state has maximized all its resources to ensure the availability and affordability of fuel. The potential for renewable energy production in Scotland, as explored by the government and a plethora of private companies,¹⁴⁷ provides a good example of the opportunities available for producing sustainable fuel at a better price for the population and consequently maximizing its use of resources beyond the confines of finance.

In short, the right to fuel can be progressed in a plethora of ways and should not be viewed restrictively as simply requiring an increase in fuel social security payments or regulation of energy companies. Progressive realization of the right to fuel should be directly focused on and captured within the many actions taken to ensure the accessibility, availability, affordability and sustainability of fuel for all now and in the future.

The MCO for the right to fuel might include access to sufficient fuel, without discrimination, to protect against dangerously cold weather conditions. When viewed through the lens of the right to food, it is evident there would be an MCO to ensure adequate fuel for cooking and adequate refrigeration. The CESCR in its concluding observations on Belgium did raise the need to ensure everyone has a ‘minimum supply of energy’, with concerns raised over energy services being switched off due to a lack of payment.¹⁴⁸ While this is not an explicit mention of MCOs, it does provide a nod to the understanding that there is a minimum essential level of fuel required within a household in order for people to live a dignified life.

UK compliance with the right to fuel

These comments came before the fuel poverty crisis developing in the UK.

Thus, while large figures of money can be pointed to as action on fuel poverty by the UK government, it is clear that those who need the most help are not always receiving it. This suggests that while steps are being taken, they are not adequately targeted, concrete and deliberate as would be required when using a human rights approach to tackling fuel poverty.

The evolution of changing definitions for fuel poverty in England has been well documented and need not be reiterated in full here.¹⁵⁶ What is important to grasp is that, since Boardman’s 1991 book defined it as covering households whose fuel expenditure on all energy services exceeded 10 per cent of their income, the definition has moved several times,¹⁵⁷ the most notable changes being the introduction of the Low Income High Costs (LIHC) measure in 2013¹⁵⁸ and the recently introduced Low Income Low Energy Efficiency (LILEE) measure in 2021. Both use the English Housing Survey data to assess the extent of fuel poverty.¹⁵⁹ It is an anonymized survey which adds to the difficulty in prioritizing or targeting resources for those most in need. The LIHC measure defined a household as fuel poor if the amount they would need to spend to keep their home at ‘an adequate standard of warmth’ was above the national median level and if they spent that amount, their leftover income would be below the poverty line.¹⁶⁰ It was criticized on a range of grounds, from its complexity to the fact that it placed an emphasis on the energy efficiency of homes over the ability of people to afford basic energy.¹⁶¹ According to Middlemiss, it had the overall impact ‘to further entrench the idea that reform of the energy market and addressing income inequality are policy options that are outside the realms of possibility’.¹⁶² Importantly, the change in measure helped skew the reality faced by households in England: ‘[the] numbers of households officially recognised as experiencing fuel poverty were approximately halved by this change in measure’.¹⁶³ This is further compounded by the fact that the fuel poverty targets in England are not based on alleviating families from fuel poverty, but are set on the households’ Energy Performance Certificates.¹⁶⁴ The devolved governments in the UK have not adopted the same measures or targets. This reflects the difficulty in truly assessing the extent of the issue in England; however, recent data have been released in relation to the new LILEE measure and provide some insight.

The current LILEE measure defines a household as fuel poor if ‘they are living in a property with an energy efficiency rating of band D, E, F, or G’ and their ‘disposable income (income after housing costs and energy needs) would be below the poverty line’.¹⁶⁵ It is thus a continuation of the approach of LIHC with a priority focus on energy efficiency over the percentage of income spent on fuel. According to this measure and the latest statistical data available, there is an estimated 3.16 million households living in fuel poverty in England.¹⁶⁶ According to official statistics and trends, fuel poverty in England has declined steadily since 2010, despite austerity policies.¹⁶⁷ Questioning official figures further, the government projected fuel poverty levels would fall to 12.5 per cent of households in 2022, despite the extortionate rise in energy prices. Instead, fuel poverty remained consistent with the previous three years. Unsurprisingly, these figures lie in direct conflict with those estimated using the original 10 per cent measure. Under this measure, the figure jumps to around 4.5 million households living in fuel poverty, and that does not yet take into account the 54 per cent price increase due to the lifting of the energy cap in 2022. Further clarity on the true scale of fuel poverty can be sought from assessing the fuel poverty gap.

The fuel poverty gap is a further measure that is used and is defined as the reduction in required spending which would take a household out of fuel poverty. It is thus more intimately tied to the proportion of income spent on fuel. According to official figures, the fuel poverty gap was expected to rise from £223 in 2020 to £258 in 2022; however, it reached £348 in 2022, and rose a further 20 per cent to £417 in 2023.¹⁶⁸ The UK government’s assertion that fuel poverty is in decline in England while the fuel poverty gap has increased is indicative of the methodological challenges. There are also concerns that the strategies and policies brought in to reduce fuel poverty in England specifically, such as energy rebates, may be leading already low-income households into further debt.¹⁶⁹ While the idea of support is welcome, more cynically, the way in which some of the targeted policies have been designed would suggest that the government is more focused on short-term reductions of fuel poverty figures over dealing with its underlying causes or long-term entrenchment within society.

Across the UK’s four nations, Scotland faces the most challenges in ensuring the availability, accessibility and affordability of fuel for all. Cold weather conditions require increased spending on heating homes. The cost of heating rural households across the highlands and islands of Scotland add further to the mounting concern about how to heat Scotland’s homes as fuel prices continue to rise.¹⁷⁰ Up to 2019, Scotland used Boardman’s original 10 per cent measure to ascertain the extent of fuel poverty throughout the population. For many years under this measure, Scotland’s fuel poverty steadily increased to a peak of 39 per cent of the population in 2011 before beginning to fall to around 25 per cent in 2018.¹⁷¹ The failure to alleviate fuel poverty in Scotland, despite devolved powers, targets and strategies, led to the establishment of two working groups tasked with assessing the definition of fuel poverty in Scotland, with England having recently adopted the LIHC measure, as well as designing policy responses for its alleviation.¹⁷² This led to the unanimous passing of the Fuel Poverty (Targets, Definition and Strategy) (Scotland) Act in 2019, which brought in an updated measure for fuel poverty.

Under the Fuel Poverty Act, a household is considered fuel poor if after housing costs have been deducted, more than 10 per cent (20 per cent for extreme fuel poverty) of its net income is required to pay for its reasonable fuel needs and if after further adjustments are made to deduct childcare costs and any benefits received for a disability or care need, its remaining income is insufficient to maintain an acceptable standard of living, which is defined as being at least 90 per cent of the UK Minimum Income Standard (MIS).

There are several notable aspects of the new definition. First, the measure clearly differs from that adopted in England and continues to have a primary focus on expenditure on fuel over energy efficiency. This means that the measure used is much more sensitive to changes in energy prices as these have a direct impact on the proportion of income spent on fuel within a household. As the primary cause of increasing fuel poverty is currently related to fuel prices, this measure would seem better suited to capturing the full extent of the problem. Additionally, the measure discusses the need for income for an ‘adequate standard of living’. While a right to fuel is not explicitly recognized in Scotland, this measure makes the connection between adequate fuel and an adequate standard of living, and could be built upon to reflect the standards set by the right to an adequate standard of living as espoused by the UDHR and the ICESCR.

Despite some positives in Scotland in relation to the new measure, current statistics and forecasts do not make for easy reading. Official statistics from the Scottish House Condition Survey only give an indication as to fuel poverty in 2019 and fail to capture the recent changes to the fuel price cap in 2021 and April 2022. Still, in 2019 fuel poverty under Scotland’s new measure affected 613,000 households – around 24.6 per cent of all households in Scotland.¹⁷³ Without official figures, it is difficult to fully understand the full extent of the problem, but Energy Action Scotland, a leading fuel poverty charity, has estimated that the fuel price rise will lead to a further 211,000 households suffering from fuel poverty. This means that fuel poverty could exceed 40 per cent of all households in Scotland, with over 50 per cent of households in fuel poverty in the Western Isles.¹⁷⁴ With the impact of fuel poverty on a range of factors that are important to basic standards of living, these figures are truly devastating and suggest widespread violations of ESC rights. Despite the actions taken by the Scottish government to alleviate fuel poverty and reduce its persistence, the figure reported would strongly indicate that further targeted action and resources are required.

Wales too suffers from high levels of fuel poverty. In Wales, fuel poverty is measured in relation to whether a household must spend more than 10 per cent of its income on maintaining a satisfactory heating regime.¹⁷⁵ It is a simple measure, but continues to provide a focus on income and is thus likely to capture many of the difficulties caused by rising fuel prices. However, the Welsh measure does not have an income cap built into it, meaning that some high-earning households can be captured inadvertently.¹⁷⁶ This is the benefit of the Scottish measure using the MIS as a baseline. Under the Welsh measure, there was a peak of fuel poverty in 2008 according to official data, with just over 25 per cent of all households in Wales living in fuel poverty. This had reduced to 12 per cent (or 155,000 households) in the last round of official data in 2018. However, as with the other nations, these figures do not capture the reality faced by thousands more households in 2022. The Welsh government has recently released updated estimates which provide further insight. As of October 2021, 196,000 households in Wales (14 per cent of all households) were living in fuel poverty, with 38,000 in severe fuel poverty (spending 20 per cent of their income on fuel). Furthermore, the April 2022 price increase left charities warning that this figure could rise hugely to up to 45 per cent of all households and 8 per cent in severe fuel poverty. The extent of these estimates is disturbing given the knock-on impact it can have on the realization of ESC rights generally, but also on enabling people to live a life with basic human dignity. The only silver lining being the figures likely represent an accurate depiction of the difficulties faced by households in Wales in relation to fuel price rises and thus the government’s task in its alleviation is better understood.

In NI, a household is considered to be in fuel poverty if, in order to maintain a satisfactory level of heating (21°C in the main living area and 18°C in other occupied rooms), it is required to spend in excess of 10 per cent of its household income on all fuel use, and a household is considered to be in severe fuel poverty if it needs to spend more than 15 per cent of income on all fuel use.¹⁷⁷ At the time of carrying out this research, the latest figures in 2024 were reliant upon data collected in 2016, meaning that the data may not capture the full extent to which people suffer from fuel poverty in NI today, particularly since the cost-of-living crisis has worsened since the COVID-19 pandemic. The data collected in 2016 by the House Condition Survey found that 22 per cent of households in NI were classified as fuel poor under the NI measure.¹⁷⁸ This figure has also been used by the NI Department for Communities and is therefore well recognized as a baseline of fuel poverty in NI. However, as we have found in all other parts of the UK, the real figure is likely to be higher, with recent price rises for fuel alongside other financial pressures. The National Energy Action charity has suggested that as of 2022, up to 45 per cent of all homes in NI could be considered to be in fuel poverty.¹⁷⁹ In recent years, the NI government has made some efforts to alleviate the impact of fuel poverty on the most vulnerable through policies such as the Emergency Fuel Payment Scheme. This scheme was aimed at supporting up to 20,000 households with the cost of energy through the provision of one-off support in the form of up to £100 worth of electricity, gas or oil to 20,000 households across NI that were experiencing an emergency fuel crisis during the winter of 2021/2022. However, without up-to-date data on fuel poverty, it is difficult to know whether the scheme was effective in its aim of ensuring those households who needed it most were adequately supported throughout the winter.