The constitution charges the government with the progressive realisation of the right of impoverished citizens to income security. In practice, this means that the government must have a reasonable defence of the current size and shape of its social assistance and social insurance programmes. Legal challenges have forced the state into providing such a defence of its social assistance programmes. In summary, the state justifies the current size and shape of this system primarily on the grounds that the state is targeting its scarce resources on the most ‘disadvantaged’ groups, where disadvantage is defined in terms of past opportunity not of current need. In this view, the social assistance system should help those groups of people who had fewest opportunities to provide for themselves. This argument entails a new version of the distinction between ‘deserving’ and ‘undeserving’ poor. The state’s application of this argument in recent court papers is flawed empirically, but in making the argument the state has provided a basis for constructive debate on the shape of the welfare state.