Treating claimants like criminals: universal credit sanctions as punishments

ABSTRACT

The UK’s social security system has attracted much criticism for the severity, ineffectiveness and invasiveness of its sanctioning regime. Political theorists, news outlets, and welfare claimants repeatedly describe sanctions as punitive, yet most use the term ‘punishment’ in a colloquial manner, rather than treating it as a theoretically-contested concept. Instead, this article subjects the empirical realities of welfare sanctions to four theoretical models of punishment: the classic Flew-Benn-Hart model, a Foucauldian model focussed on the disciplinary potential of punishment, a Durkheimian model concerning social sentiments, and Feinberg’s censure-based model. This article ultimately concludes that there is sufficient overlap in order to consider welfare sanctions a form of punishment. For this reason, proponents of welfare sanctions must be able to justify sanctions not just as a mechanism of social security law, but also as punishments.

KEYWORDS:

• Punishment
• universal credit
• welfare sanctions
• social security law

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

1. WelCond Project (2018: 28) found that sanctions can lead to destitution and exacerbate health conditions, thus making compliance with a claimant’s requirements difficult or impossible.

2. Discussed further in Section 2.

3. SI.No.376/2013.

4. Taken from written evidence produced by the DWP and recorded by the Work and Pensions Committee 2018: Section 1).

5. Namely, Chapters K1-K9 of the DWP’s ‘Advice for decision making: staff guide’.

6. Low-level and lowest-level sanction periods last until the claimant complies with the relevant requirement, in addition to a fixed period afterwards, and so are theoretically indefinite.

7. The Behavioural Function of the claimant commitment will be explored further in the following section.

8. The terms Behavioural Function and Moral Function are chosen for this article and are not terms adopted internally by the DWP.

9. Not merely because UC claimants already in work can be subject to sanctions.

10. Foucault’s comments on the relationship between discipline and the law can be contradictory. This dissertation follows Golder and Fitzpatrick (2009, p. 64) in understanding discipline not as ousting or replacing the law, but as contingent on the law, since the enforcement of norms requires the legal backing of sanctions.

11. Adler seems to distinguish punishment from the disciplinary function of UC sanctions: ‘Although benefit sanctions are clearly punitive, they are also disciplinary’ (Adler 2018, p. 125). Ultimately, however, whether or not discipline is conceived of as an evolution from punishment or as a modern-day form of punishment, the point stands that the close connection between discipline and punishment places UC sanctions within a distinctly punitive context.

12. Secretary of State for Work and Pensions from 2010 to 2016.

13. A long-running nationally representative survey conducted by the National Centre for Social Research which aims to gauge public opinion on a range of issues including sentiments towards welfare benefits.

14. Welfare claimant quoted in Wright et al. (2020, p. 284).

15. Welfare claimant quoted in Wright et al. (2020, p. 291).

16. For instance: Babar Ahmad and Others v. the United Kingdom (2012), Apps nos. 24027/07, 11949/08, 36742/08, 66911/09 and 67,354/09, § 237.