Fairness in welfare: Applying Article 6 ECHR to benefit sanctions

This article examines the procedural rights of benefit recipients facing social security sanctions, focusing on the potential effects of applying additional protection from Article 6 of the European Convention on Human Rights (ECHR) to benefit sanctions. While applicable to all Council of Europe member states, it primarily draws on examples from the Netherlands. The research explores whether extending this criminal law protection – which is currently limited to punitive sanctions – to cases of benefit sanctions could address disparities in procedural fairness. This issue is analysed within the broader context of increased conditionality and automation in social security, which has intensified the repressive nature of welfare systems. Drawing on European Court of Human Rights case law and social security literature, the study argues that the existing difference in legal guarantees pertaining to punitive sanctions and to benefit sanctions may be undesirable, given the severe impact that benefit sanctions have on recipients. Findings suggest that Article 6 ECHR safeguards, such as the presumption of innocence, the right to an interpreter and the right to a full review of a judicial body with full jurisdiction, could strengthen the procedural position of benefit recipients and thus help to restore the balance between rights and obligations affected by the trend towards conditionality. Extending Article 6 ECHR procedural guarantees to those facing benefit sanctions could help create a better balance, promoting fairness in welfare.