Fuel Poverty through a Human Rights Lens
This guest blog article from Dr Hannah Russell and Ben Christman 1 is the second and final part of a series of blog articles that examines the relationship between fuel poverty and human rights.
…overcoming poverty is not a gesture of charity. It is an act of justice. It is the protection of a fundamental human right, the right to dignity and a decent life.2
Human rights law provides a set of basic rules designed to protect human dignity. Poverty (and fuel poverty) can affect the enjoyment of several human rights protections including the right to life, freedom from inhuman and degrading treatment, adequate housing, food and health. These are found in international, regional and domestic legal instruments with snazzy titles like the European Convention on Human Rights 1952 (ECHR) and the International Covenant on Economic, Social and Cultural Rights 1966 (ICESCR) – although anathema to some parts of the political spectrum, these rights are an important part of the UK’s legal system. This post provides an introduction to the relationship between human rights and fuel poverty in the UK, focussing on the rights to life and housing.3
2. The Right to Life in the ECHR
The ECHR is much maligned (and misunderstood/misrepresented) in UK media and political discourse, but provides a protective floor for civil and political rights below which contracting States cannot stoop. This treaty has extra teeth as it has been made enforceable within the domestic legal system by the Human Rights Act 1998, an important detail given the UK’s ‘dualist’ constitution.4 Article 2 of the ECHR (the right to life) requires States to take reasonable steps to prevent intentional and unintentional deprivation of life.5 Tens of thousands of ‘excess winter deaths’ occur in the UK every year and these are strongly linked with cold indoor temperatures (the WHO has estimated that approximately 30% of these are related to cold housing).6 Although these deaths are unintentional, fuel poverty’s threat to life places it under the Article 2 microscope.
The European Court of Human Rights (ECtHR) has confirmed that the ECHR does not contain the right to enjoy any given standard of living or a right to obtain financial assistance from the State, but it indicates that ‘any danger to life or limb’ may bring poverty complaints ‘within the ambit of Article 2’.7 This requires ‘such destitution as to put [the applicant’s] life at risk’8 and that the State is aware of a ‘real and imminent’ risk, but has failed to take reasonable steps.9 These can be risks from State or non-State actors.10
A successful Article 2 poverty complaint was brought in Nencheva v Bulgaria (2013), where 15 children and young adults with disabilities died in a Bulgarian care home during the winter of 1996/1997 due to lack of food, heating and basic care. The State was aware of the risk to the children, but it did not offer the ‘swift, practical and sufficient’ support that was required to prevent the deaths.11 The ECtHR concluded that Article 2 had been violated due to the specific facts of the case: the victims were vulnerable persons, they were in the care of the State which was fully aware of the dangers, and the events were ‘not… sudden, one-off and unforeseen’.12
These developments could be used to construct an Article 2 case in extreme instances of fuel poverty; though they are of limited benefit. The UK is aware of the risks that fuel poverty poses to human health, and has been for some time.13 However, its privatised energy and largely privatised housing markets, mean that being able to prove that extreme levels of poverty (of which fuel poverty is a factor) are due to State action or inaction would be difficult. It could be argued that the State’s failure to regulate housing and energy markets allows fuel poverty to flourish. The condition that the State must be aware of a real and immediate risk to life or limb posed by extreme poverty is likely only applicable in the most serious cases for particularly vulnerable individuals during very cold weather; most of the health risks from living in fuel poverty are long-term rather than posing an imminent risk to life.
3. The Right to Adequate Housing in the ICESCR
Socio-economic rights enjoy a fraction of the glamour of their civil and political cousins. They guarantee basic social necessities and provide the conditions for the exercise of civil and political rights – e.g. it is difficult to enjoy the right to free elections where basic survival needs are threatened, such as finding adequate food. Socio-economic rights are given less legal protection in the UK too: unlike the ECHR – the ICESCR is not incorporated into domestic law. The UK’s dualist constitution makes it difficult to domestically enforce socio-economic rights, but they remain binding in international law.14
With fuel poverty largely a problem of thermally inefficient, badly built homes – the right to adequate housing stands out. Housing is fundamental to the enjoyment of human rights; providing security, privacy, safety and protection from the elements. It is protected in multiple international human rights treaties, and the best articulated of these is in Article 11 of the ICESCR.
The ICESCR is vague about the extent of the right, but its monitoring body (the Committee on Economic Social and Cultural Rights) provides a detailed interpretation, setting out seven conditions to measure the adequacy of housing against. Three of these are relevant to fuel poor homes:
a) Availability of services, materials, facilities and infrastructure. An adequate house must contain certain facilities essential for health, security, comfort and nutrition. All beneficiaries of the right to adequate housing should have sustainable access to… energy for cooking, heating and lighting…
b) 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.
c) Habitability. Adequate housing must be habitable, in terms of providing the inhabitants with adequate space and protecting them from cold, damp, heat, rain, wind or other threats to health…15
‘Availability’ is unlikely to be threatened in the UK as it concerns the physical accessibility of energy services. However, it clearly establishes the link to energy services – and the physical availability of energy services is of little use if they are economically unavailable.
‘Affordability’ is important; the essence of the problem of ‘fuel poverty’ is the inability to afford adequate energy services in the home. Fuel poverty can infringe the requirement that costs associated with housing (e.g. heating) should be such that, ‘the attainment and satisfaction of other basic needs are not threatened or compromised’. For example, the ‘heat or eat’ dilemma, whereby unaffordable energy bills push fuel-poor households into making untenable choices between their energy needs and sacrificing food.
Finally, ‘habitability’ requires that housing protects its inhabitants from cold, damp and other threats to health. The UK’s cold, wet climate means that hard to heat fuel-poor homes (e.g. those with single glazing, little or no wall or roof insulation, and draughts or condensation problems), are often cold, damp and mouldy – threatening rather than protecting their inhabitants’ health. The threats to health often found in fuel poor homes across the UK represents a failure to ensure that housing is ‘habitable’; questioning the UK’s commitment to the right to adequate housing.
4. Conclusion – Time for a Rights-Based Approach?
Fuel poverty is a human rights issue – so what? Legally, human rights provide minimum standards that States must meet as a matter of international law. We argue that the UK should adhere to its international legal obligations – involving a change in the design of fuel poverty strategies across the UK with the adoption of a ‘human rights based approach’.16 This would require that human rights standards are integrated into relevant plans, processes and decision-making, ultimately leading to fuel poverty policies that reflect the rights of everyone within the UK, not only those that the Government values.17 Where the UK fails to meet its human rights obligations, the limited application of civil and political rights and difficulties in enforcing socio-economic rights mean that using the domestic courts to challenge fuel poverty may be very difficult, but fuel poverty’s rights implications make the case for enlisting human rights institutions and civil society organisations in tackling the problem.
Politically, the recognition of rights implications and the application of a human rights based approach should help to shift the fuel poverty discourse to take stronger action. Policies with minimal ambition, funding and efficacy (e.g. the ‘Energy Companies Obligation’) become targets for challenge – with rights providing an ethical and legal yardstick for the advocacy and research community to assess and critique policies. Under a rights perspective, the fuel poor are citizens with violated legal entitlements; making persistent fuel poverty an intolerable affliction rather than an incurable, indefinite deficit.
Hannah Russell (email@example.com) has recently completed doctoral research at the School of Law, Queen’s University Belfast entitled ‘The Right to Life under Article 2 of the ECHR in light of European Conflicts’. She has also been contracted by the Northern Ireland Human Rights Commission to assist its work on poverty and the right to an adequate standard of living. Ben Christman (firstname.lastname@example.org) is a third year PhD candidate in the School of Law, Queen’s University Belfast. His research examines legal responses to fuel poverty in the UK from an energy justice perspective.
Nelson Mandela, Make Poverty History Rally, 3rd February 2005, London.
This post draws from B Christman and H Russell, ‘Readjusting the Political Thermostat: Fuel Poverty and Human Rights in the UK’ Journal of Human Rights in the Commonwealth (2015) – forthcoming. This is the second of two posts on fuel poverty and human rights – see ‘The energy bill of rights – too little, too much or just about right?’.
Dualism means that, to give international legal obligations domestic legal effect in the UK, they must be accompanied by primary legislation which incorporates them into the domestic legal order. For example, the Human Rights Act 1998 incorporates the European Convention of Human Rights into UK law.
Wöckel v Germany (1998) 25 EHRR CD156; Oneryildiz v Turkey (2005) 41 EHRR 20; Solomou and Others v Turkey  ECHR 552.
J Rudge, ‘Environmental burden of disease associated with inadequate housing: Methods for quantifying health impacts of selected housing risks in the WHO European Region’ in M Braubach, D Jacobs and D Ormandy, ‘Indoor Cold and Mortality’ (WHO, 2011).
Wasilewski v Poland, Application No 32734/96, Admissibility, 20 April 1999, para 3.
Sokur v Ukraine Application No 29439/02, Merits, 26 November 2002, para 1.
Burke v United Kingdom, Application No 19807/06, Merits, 11 July 2006, para 1.
LCB v United Kingdom (1999) 27 EHRR 212, para 36.
Nencheva and Others v Bulgaria (2013) ECHR 554, para 4.
Nencheva and Others v Bulgaria (2013) ECHR 554, para 4.
UK Department for Trade and Industry, ‘UK Fuel Poverty Strategy, 2001’ (UK DTI, 2001).
It should also be noted that the obligations of States in relation to ICESCR rights are different from those in relation to the ECHR. ICESCR, Article 2(1) requires States to “to take steps” to the maximum of their available resources to achieve progressively the full realisation of economic, social and cultural rights. Certain rights imply ‘minimum core’ obligations which must be realised with immediate effect, for example in relation to the right to adequate food, States must ensure access to the minimum essential food which is nutritionally adequate and safe, and ensure freedom from hunger. See UNCESCR, ‘General Comment No. 3: The Nature of States Parties’ Obligations (Art. 2, Para. 1, of the Covenant)’ (UNCESCR, 14 December 1990).
UNCESCR, ‘General Comment No. 4: The Right to Adequate Housing (Art. 11 (1) of the Covenant)’ (UNCESCR, 13 December 1991), para 8.
Wambua Leonard Munyao, ‘Understanding the Rights Based Approach and Its Role in Poverty Reduction’, International Journal of Humanities and Social Science, no. 3(3) (2013): 276, 276.
Deborah Budlender, The Women’s Budget (Cape Town: Institute for Democracy in South Africa, 1996), 7.