Relevant human rights and principles
The provision of social services may directly interfere with an individual’s enjoyment of his or her rights, such as the right to private and family life within the meaning of Article 8 ECHR,[1] the right to liberty within the meaning of Article 5,[2] or the right to property within the meaning of Article 1 of Protocol No.1.[3] In addition, effective social services contribute to the fulfilment of the State’s positive obligations for the prevention of ill-treatment administered by private persons (Article 3).[4]
States have a margin of appreciation in spheres involving the application of social or economic policies.[5] The Court will also generally respect domestic policy choices unless they are “manifestly without reasonable foundation”.[6] This is particularly so in the context of the allocation of limited State resources.[7] The Court has thus found it legitimate for States to put in place criteria according to which a benefit can be allocated, when there is insufficient supply available to satisfy demand, so long as such criteria are not arbitrary or discriminatory.[8] This means that where a State decides to provide such benefits, it must do so in a non-discriminatory manner. The State’s margin of appreciation is considerably reduced where the distinction in treatment is based on an inherent or immutable personal characteristic such as race, sex, nationality or disability, and “very weighty reasons” would be required to justify the difference of treatment at issue.[9]
Under the ESC, States Parties have the obligation to ensure non-discriminatory access to social security,[10] social and medical assistance,[11] and social welfare services.[12] It requires that a social security system guarantees effective access to benefits provided under each branch of the respective system.[13] Equal treatment must be ensured for nationals of other States Parties lawfully resident or working regularly within the territory of the State Party concerned, as well as refugees and stateless persons.[14]
[1] For instance, with respect to decisions on the removal of children, placement and adoption, determination of custody and visiting rights, see B. v. the United Kingdom, 8 July 1987, No. 9840/82, §§ 60-65; Saviny v. Ukraine, 18 December 2008, 39948/06, §§57-42; A.K. and L. v. Croatia, 8 January 2013, No. 37956/11, §§ 58-60. Also see for obligations of national authorities to facilitate family visits and, in exceptional cases, to secure shelter for particularly individuals in a situation of vulnerability A and Others v. Italy, 7 December 2003, No.17791/22, §§ 93-104.
[2] For instance, with respect to the compulsory confinement of persons of “unsound mind”. See, among others, Ilnseher v. Germany [GC], 4 December 2018, No.10211/12 and 27505/14, §§ 126-134.
[3] For a comprehensive synopsis of the Court’s case-law relating to social security/welfare benefits see Béláné Nagy v. Hungary [GC], No. 53080/13, 13 December 2016, §§ 80-89; Yavaş and Others v. Turkey, No. 36366/06, 5 March 2019, 36366/06, §§ 39-43.
[4] See, among others, Z. and Others v. the United Kingdom, No. 29392/95, 10 May 2001, §121, concerning the failure of the respondent State’s social services to take adequate protective measures with regard to a child abuse case; as well, V.C. v. Italy, 1 February 2018, No. 54227/14, §89. Also, with respect to the failure to protect victims of domestic violence, see Opuz v. Turkey, No. 33401/02, 9 June 2009, §159; Talpis v. Italy, No. 41237/14, 2 March 2017, § 141, also in conjunction with Article 14 and the State’s failure to guarantee the right of women to equal protection before the law.
[5] For instance, regarding housing, see, among others, Hudorovič and Others v. Slovenia, 10 March 2020, Nos 24816/14 and 25140/14 and European Roma and Travellers Forum (ERTF) v. France, Complaint No. 64/2011, 24 January 2012, §95; regarding old-age pensions, Fábián v. Hungary, No. 78117/13, 5 September 2017, § 67; regarding survivors’ pensions, Muñoz Díaz v. Spain, No. 49151/07, 8 December 2009, §§ 48-49, etc; regarding employment policies, see, General Federation of employees of the national electric power corporation (GENOP-DEI) / Confederation of Greek Civil Servants Trade Unions (ADEDY) v. Greece, Complaint No. 66/2011, 23 May 2012, §20.
[6] Stec and Others v. the United Kingdom [GC], 12 April 2006, No. 65731/01 and 65900/01, § 52.
[7] Šaltinytė v. Lithuania, No. 32934/19, 26 October 2021, §§ 64 and 77.
[8] Bah v. the United Kingdom, No. 56328/07, 27 December 2011, § 52.
[9] Savickis and Others v. Latvia [GC], No. 49270/11, 9 June 2022, § 183; J.D. and A. v. the United Kingdom, No.32949/17, No.34614/17, §§ 88-89, 97 and 104, 24 October 2019; Ribać v. Slovenia, No.57101/10, 5 March 2018, § 53.
[10] ESC, Article 12; see also Digest of Case Law of the European Committee of Social Rights, December 2022, p. 119 ff.
