Definitieve versie van de lezing van prof. dr. Gijsbert Vonk voor de EISS-conferentie 2013
Onderstaande tekst is inmiddels ook, in licht gewijzigde vorm, verschenen in: European Journal of Social Security, Volume 16 (2014), No. 3, onder de titel: Repressive Welfare States: The Spiral of Obligations and Sanctions in Social Security
Law and the rise of the
repressive welfare state
This article discusses the trend of introducing
increasingly strict obligations and sanctions for social security claimants in
the Netherlands, the UK and in Germany. It is argued that this trend should be judged critically because it
upsets the balance between rights and obligations for claimants of benefit and
may undermine the “elevating function” of social security. Courts play an important
role in maintaining the balance between rights and obligations. The article discusses recent case law in the
three countries and refers to a remarkable case at the Czech constitutional
court of November 2012 which paves to way to a more fundamental approach
to scrutinize repressive welfare state
excesses.
1. Introduction
In our
present climate social security fraud has become a true public concern.
Individual fraudsters who are caught out are paraded in front of the camera and
collectively scorned and ridiculed in the newspapers. People massively report
suspected cases of benefit fraud to specially created complaints lines.
Politicians from the left and right promise stricter rules and tougher
sanctions. If there ever was a time that an improper use of benefit rights was
a taboo, now it has become more like a public obsession.
The
increasing attention for social security fraud is not an isolated phenomenon,
but part of a wider trend which I refer to as the ‘rise of the repressive
welfare state’. This is a trend that has been commented upon by several social
academics, particularly in Northern America. The uncrowned champion among them is the French sociologist Loïc
Wacquant who wrote a stirring account of the changes in welfare state in the United States. The
book bears an ominous title: Punishing the Poor. Wacquant
argues that in American problems are no longer solved on the basis of a social
agenda. Instead the citizen is made fully responsible for his own life and the
degree in which he or she can participate in society. Where these policies fail
the state reacts with sanctions and criminal measures. In this way the ‘light’
American liberal state has developed a ‘heavy’ substructure to suppress the
poor.
According to Wacquant the repressive wind is blowing
over to this side of the Atlantic. Whether or not he is right is of course a question of qualification of
the term: ‘repressive’. Whatever can be said about this, the fact of the matter
is that many European welfare states witness a pattern of formulating stricter
obligations for social security recipients, followed by calls for a hardening
of sanctions and a tougher criminal law response. For the purposes of this
article , I will discuss such changes in social security law by looking at the
situation in three countries, i.e. Germany, Great Britain and
the Netherlands (in reverse order). The purpose of this article is the following:
a. a. To describe the spiralling
obligations and sanctions in Germany, the
Netherland and the UK with reference to legislative developments (section 3)
b. To interpret these changes
with reference to possible explanations and common elements (section 4)
c.
To monitor the responses of
the judiciary to the repressive trend in the legislation (section 5).
The latter
point is of particular importance to this contribution. Our social security
systems function under the rule of law. This means that the balance of rights
and obligations ideally is subject to an interplay between the legislature, the
administration and the judiciary. If the legislator and the administration are
focussing strongly on the disciplinary function of social security and neglect
the rights of the beneficiaries, it is up to the courts of restore the balance.
The more uncompromising the policies are, the more robust and constitutional
the response of the judiciary can be expected to be, addressing the needs of
the individual and formulating clear limitations. It is interesting to see how
and to what extent courts take up this role.
2. Fraud and abuse of benefits
rights: birds of a feather
Before
starting on the agenda, I shall first give some conceptual clarification. In order to capture the repressive trend in
our welfare states, we will deal not only with the question of fraud and
the reaction to it but also with the perceived abuse of benefit rights. The
concept of ‘abuse of rights’ is quite a murky one. I use it to circumscribe the
situation of a claimant who is deemed to be not entitled to benefit because he
or she is unwilling to work and participate in the society. It may be argued
that mixing up fraud and abuse is unwanted and unjustified because these are
two different things. From a legal point of view this is correct. In social
security law a distinction can be made between information duties and
co-operation duties. If one gives false information in order to gain some
financial advantage, this is an offence under criminal law which can be
sanctioned by a fines, obligatory community services or a prison sentence.
These are punitive sanctions which come under the protection offered by art. 6
ECHR to persons charged with a criminal offence. The same is the case if one
withholds information which is relevant for the level of benefit, for example
by not reporting earnings or a change in the household situation. Contrarily,
if one fails to apply for a job or to agree to do community services, this
merely constitutes a breach of an administrative obligation which can only be
sanctioned by withholding benefit rights. Such sanctions may hit beneficiaries
hard, but they are not part of the criminal law system.
Nonetheless,
while technically speaking fraud and abuse of rights are different things, they
also touch upon each other. Both forms of conduct are subject to the same
spiral of formulating increasingly stricter obligations and tougher sanctions.
More importantly, both operate as boundary markers establishing a line between
those who are deserving and those are undeserving of social security support.
From the latter perspective there is an interesting grey zone where welfare
fraud merges into welfare as fraud. When
policies increasingly emphasise personal responsibility, benefit dependency is
more easily perceived as somebody’s failure to take up this responsibility. And
when such failure is subsequently sanctioned by withholding benefit rights, it
easy to see why fraud and perceived abuse of benefits rights are birds of a
feather. Both types of behaviour are deemed incorrect, both are followed by
negative legal response.
3. Spiralling obligations and
sanctions, a tale of three countries
Netherlands
In the Netherlands the first act to step up the
obligations and sanctions for beneficiaries was the Wet boeten, maatregelen terug- en invordering Sociale zekerheid
1996. It was felt that various institutions charged with the administration of
social security acts underperformed in enforcing social security obligations.
The act was supposed to force a break with the past by imposing a duty on the
administration of social security to always fully recover every penny of undue
payments and to always sanction violations of any obligation by means of
withholding benefit payment or imposing fines.
The act was
prepared under the responsibility of the then Secretary of State of Justice,
Ernst Hirsch-Ballin, who is a respected professor of constitutional law. On the
one hand the act was strict, on the other hand it took into account procedural
rights for beneficiaries taken from art. 6 ECHR and various principles of
administrative fairness (una via, ne bis in idem, presumption of innocence, the
right to remain silent, to translator services, etc.).
The act
gave rise to a system of enforcement governance, including obligations to
develop anti- fraud policies, to monitor the progress and to report about this
to the Ministry and then to Parliament. With this a whole enforcement
bureaucracy evolved, with fraud officers, enforcement specialists and policy
managers, partly reporting to the office of the Attorney General. This branch
of activity also extends beyond the borders. The Dutch government imposed a ban
on the export of benefits, but allowed for the conclusion of international
agreements to make such export possible nonetheless, on the condition that the
authorities of other countries would submit to the Dutch demands for control
and information. All this has to be monitored. Sometime Dutch fraud busting
teams are sent out to pay visits to disabled or old age pensioners abroad,
often to the great surprise of expatriates who have left the country many years
ago.
Despite the
obvious progress made in the field of enforcement, in 2011
the Dutch government announced a new act, the Fraud Act, with the idea of
drastically rising the fines and in case of re-offence: an exile from the
entire social security system. The latter proposal was strongly rejected by the
Council of State because in its view it violated various constitutional
principles. But this did not deter the government to go ahead with the
proposal, with only slight amendments.
In the
final version of the Fraud Act adopted by Parliament in 2012, it is possible to
cash the fines by fully setting aside the statutory protected earnings level of
90% of the minimum subsistence norm for a period of five years. For social
assistance claimants this period is maximum three months. The fines are at
least the same as the amount of benefit to be recovered and further increased
for re-offenders. This is harsh. When one compares the severity of the
sanctions in social security with other sanctions applied in other fields of
legislation, such as the Health and Safety at Work Act and the Employment of
Foreign Nationals Act, it appears that they are far higher. According to some,
social security sanctions have spiralled out control.
In the
meantime a steady increase of co-operation obligations can be reported in the
field of social assistance. In 2004 the duty to accept suitable employment was
replaced by a duty to accept generally accepted employment, a concept which is
supposed to not take into account the level of person’s previous employment. Subsequently
workfare practices were introduced, made possible by the so called
participation jobs which force beneficiaries to work without any wages for the
purposes of gaining work experience for a maximum of two years. Then 2012 saw
the introduction of a so called maatschappelijk
nuttige tegenprestatie. This is a duty to make oneself available for
community services in addition to the duty to find employment. The introduction
of the tegenprestatie was accompanied
by a bombardment of moralistic jargon: the reciprocity principle, everything
comes at a price, voor wat hoort wat. Sometimes the tone is more scornful;
let them sweep up the leaves, or clear the snow! This language is mostly
symbolical. Collecting autumn leaves is a highly professionalised business in
the Netherlands, whereas snow clearing is difficult when
everything has melted away within 24 hours.
In the
meantime patience with beneficiaries who fail to become active and find a job
is quickly running out. Despite the fact that under the present legislative
system municipalities have been given all the possibilities to impose strict
sanctions, politicians think it is not enough. The present Dutch government has
announced a new act which centrally prescribes tougher benefit cuts that all
local councils must adhere to. In this way the 2012 Fraud Act is going to have
a younger brother in the form a Lex Discipline
Great Britain
Moving over
to Britain we find a very similar pattern in the
legislation as the Netherlands. Here the spiral of obligations and
sanctions was kick started by the policies of Tony Blair’s government. The
changes have been systematically studied by the Manchester Professor of social
policy Peter Dwyer, who refers to them as a process of ‘creeping
conditionality’,
a pattern of formulating increasingly strict benefit conditions, thereby
gradually undermining welfare rights for recipients. In social security the
conditions mostly affect the unemployed and single parents, but in Dwyer’s
observations other areas such as health, housing, education and welfare rights
are also affected.
Anti-fraud
policies are also part of the process. The Social Security Fraud Act of 1997
introduced more powers to collect and exchange information which set a system
of criminal fines. In lieu of prosecution, the claimant is offered the chance
to repay the amount fraudulently claimed along with an additional 30 per cent
of the overpayment. These powers and sanctions were increased by the Social
Security Fraud Act of 2001 and then again by the Welfare reform bill of 2009.
There is now a system of benefits cuts in operation which operates upon the
notion of one strike and two strike offences. One strike is for one month
benefit withdrawal; with two strikes the claimant faces a much longer period.
The British
policies of conditionality have not altered much under the present coalition
government. In 2011 the British government introduced the Mandatory Work
Activity, advocated as a chance to develop work discipline and behaviour and to
contribute to the local community. Once a claimant is referred to Mandatory
Work Activity, participation is mandatory and sanctions apply if a claimant
fails to participate without good cause. The placements last for four weeks and
for 30 hours a week. There are no wages.
Germany
In Germany tougher conditions and sanctions
were introduced as part of the systematic overhaul of the social assistance
system by the then Schröder government. The overhaul resulted in Grundsicherung für Arbeitssuchende, popularly
referred to as Hartz IV (after the architect of the system Peter Hartz), or
more technically as Arbeitslosengeld II.
This system introduced minimum benefits, strict work conditions and tough
sanctions for those not adhering to them. Part of the system is the Arbeitsgelegenheiten mit
Mehraufwandsentschädigung (work opportunity with
compensation for addition expenses) often referred to as the ein-Euro-job-scheme. These are additional
jobs created for Hartz-IV recipients in the community sphere. The recipients
keep their benefit and can earn one or two Euro’s per hour in addition.
In order to
avoid that the ein-Euro-job-scheme runs
contrary to the German constitutional requirements, the activities and the
rights of the beneficiaries are well regulated in the law. For example, the work
offered must be proportional and suitable for beneficiary. The extent, mode and duration of the work carried out must clearly
circumscribed in a public law agreement concluded between the administration
and the beneficiary. Health and safety must protected and the person is insured
for occupation accidents.
The maximum working week is 30 hours.
Hartz IV
has been in operation for almost ten years without any substantial changes.
Around 2010 some politicians, most notably the CDU Ministerpräsident of Hessen
Roland Koch, started a campaign to introduce a general Arbeitspflicht for Hartz-IV recipients. But these voices were
silenced by Angela Merkel who remarked in the Bundestag: “Ich glaube, dass die rechtlichen
Rahmenbedingungen, was die Notwendigkeit der Arbeitsaufnahme betrifft,
eindeutig ausreichend sind”. This was, seemingly, the end of the matter. And
yes, the powers to impose sanctions on unwillingness to work included in
Hartz-IV are already quite severe, at the minimum a 30% benefit cut going up to
a total withdrawal of benefit.
Finally a short word about fraud policies in Germany. Here the Germans
rely on the consistency of the Sozial- and the Strafgesetzbuch which includes
powers to collect information and treats information fraud as a criminal offence.
If there is any intensification of these anti-fraud measures, these do not come
from the legislature, but rather from the administration, particularly die Bundesagentur für Arbeit which continues
to discover increasingly large numbers of irregular payments of Arbeitslosengeld II.
4. Background
and implications of the new repressive policies
The spiral
of obligations and sanctions can be interpreted in various ways. Some will
point a the diminishing support among the populous for solidarity with some
groups of welfare recipients thus creating a new image, a category of
‘underserving poor’, single parents, long term unemployed, immigrants, etc.
Others will argue that the new repressive policies are rooted in the need to
reform social security, by making the system more activating and by reducing
costs. A more comprehensive explanation comes from the Dutch sociologist Willem
Trommel. He
points at structural changes which undermine the old welfare state such as
globalisation and individualisation and argues that this gives rise to a New
Social Governance. This is - in Trommel’s terms - ‘a greedy government’ which
is characterized by a state that is desperately trying to restore the social
fibre of society. A characteristic of these policies is that the state in
trying to mould society into a uniform pattern of values and norms so as to
create a responsible civil society from a top down perspective.
Wacquant
makes an equally interesting remark when he points out the role of symbolism of
repressive welfare policies. Such
symbolism is important from the point of view of legitimacy of state. By
constantly pointing the finger at those who are not deserving of our support:
the unruly classes, the outcasts, the irresponsible, newcomers to society and
worst of all fraudulent immigrants, the state is busy strengthening the bond
with the rest of the population, thereby creating a basis for its survival.
Such
theories offer an alternative to the mainstream marketing arguments for tougher
obligations and sanctions dished up by politicians. Indeed, there are good
reasons for being critical of these mainstream arguments. I mention four.
First of
all, the new policies are not always based upon empirical evidence or rational
considerations. For example, the latest Dutch Fraud Act was a response to
political pressure, not at all to rising fraud and abuse statistics. In fact,
the figures show that these do not increase at all. It is also quite shocking
to note how often fraud cases are reported to the press suggesting large scale
illegal practices involving millions of Euros damage, while in the end such
cases appear simply not exist. Thus in the Netherlands, only twelve Moroccans
and Turks appeared to have claimed double child benefit, not a quarter of the
relevant population as was earlier suggested by some politicians.
Similarly, in Amsterdam after two years of researching address data,
it appeared there were only six so called phantom citizens claiming benefits,
instead of the hundreds suggested earlier .
Remarkably, no politician is ever held accountable for spreading rumours which
subsequently prove to be manifestly exaggerated or downright false.
Secondly,
it should be pointed out that the call for higher fines is made on the
assumptions of wrongful behaviour which in practice cannot always be upheld.
Not all recipients who do not adhere to the rules are intentional fraudsters.
As is testified by the contribution in the present volume by there is a
difference between intentionally and unintentionally violating obligations (Reindl-Krauskopf), the
extent of error may far outreach the extent of fraude (Van Stolk) and suspected
fraud is not the same as the real extent of fraud (Van Oirschot). Some
people just get lost in the rules or suffer from the events in their life paths
which make them unfit to do what is expected of them. Perhaps also for this
reason local administrators often find it hard to actually impose the tough
sanctions that are prescribed by central guidelines.
Thirdly,
new repressive policies can come with an overdose of paternalistic interference
which damages the dignity of benefit claimants. Thus, the former Dutch
Secretary of State for social affairs Henk Kamp made a serious point describing
how social assistance recipients should dress. They are not supposed to show
piercings, tattoos, décolletés or
belly buttons, let alone heads scarfs or burkas, otherwise they not attractive
to employers. But again research has pointed out that in practice it is very
hard for social services to actually enforce such instructions borne in the
fantasy of some correct politician. In Britain, the press targets for example
people who suffer from overweight. No dole for fatties.
Fourthly,
the repressive welfare state reforms are so much focussed on discipline and
sanctions, that they undermine the balance between rights and obligations, thus
exposing the claimants to benefit to unwarranted intrusions of their privacy,
the arbitrary decisions of fraud officers and degrading treatment. In the end
this may jeopardise the “elevating function” social security is supposed to
have for its citizens. For example, in our research into the implementation of
the latest Dutch mandatory work activity programme we found out that there are
less regulatory guarantees for this type of work than the obligatory community
services which must be carried out be detainees. In this way social security
and criminal law will become mutually exchangeable areas of government concern.
The British government introduced at least a set of quality guarantees for the
British Mandatory Work Activity Scheme. There are Internal guidelines which
deal not only with working times, health and safety matters, but which also
require the work to be beneficial for the development of the claimant, not to
go against his personal beliefs or lead to any degrading practices.
5. Response of the judiciary
As was
mentioned in the introduction, it is important that new repressive welfare
policies operate under the rule of law, which can help to maintain a just
balance between rights and obligations for benefit claimants. In this respect
it is relevant to monitor the response of the judiciary to these new policies.
It emerges
that the courts are very much in the business of counterbalancing the new
sanctions regime, both in cases of information fraud and in cases of suspected
abuse. This is not only the case in the Netherlands, but also in the UK and in Germany. The red strand of the case law is
that each individual case must continue to be judged on the basis of the
merits, however strict and standardized the rules may be. When individual
circumstances are taken into account very often the conclusion must be that
sanctions should be mitigated
.
Another
trend, at least in the Netherlands, is that case law is becoming more
constitutional in character, meaning that courts do not refrain from taking a
principle stance and derive rules from fundamental rights. One of the reasons
for this may be that the basis for the rights in the social security statutes
themselves has become so much weakened by constant legislative interferences
that courts must almost automatically resort to higher legal norms, in
particular human rights standards, as a basis for their decisions. Examples of
the more principle case law are the rulings dealing with the powers of the
administration to enter the homes of claimants for verification purposes.
According to the Dutch Central Appeals Tribunal this is not allowed unless the
occupant gives his explicit consent. Failure
to do so may not result in any loss of benefit rights, unless there is clear
indication that there is something wrong with payments. Typically the Dutch
legislature has reacted to this with a new act to grant more powers to the
administration to enter people’s homes, but it is questionable whether this
attempt is really going to be successful, as the courts will probably remain
critical.
Another interesting strand in case law deals with the question of
whether it is allowed to force beneficiaries to accept workfare duties, for
which beneficiaries receive no, or reduced earnings. The question arise to what
extent this is in line with some fundamental rights, such as the right to work (in particular the freedom of occupation) and the prohibition of slavery
and forced labour as contained in several international human rights
instruments, such as art. 4 ECHR.
For a long time there were hardly
any national or international cases in which concrete decisions of social
security administrations to withhold benefit rights were considered to be in
violation of any of these rights. The general understanding seems to be that
work duties may be imposed as a benefit condition and that withholding benefit
rights does not impede someone’s freedom of occupation, let alone constitute
forced labour. Up to now this has also been the point of view of the European
Court of Human rights. [18]
I have some trouble in accepting the
way courts tend to reject outright the relevance of the prohibition to forced
labour in social security cases. Firstly, by doing so courts fail to appreciate
the great responsibility which rests upon them to protect the proper balance
between rights and obligations in times of the introduction of workfare
policies. Secondly, case law does not recognize that withholding benefits
rights may constitute a serious form of pressure and coercion upon the person
involved. According to the European Court of human rights forced labour is
labour exacted under menace of any penalty and performed against the will of
the person involved, that is work for which he has not offered himself
voluntarily”.[19]
I fail to see why under some circumstances, particularly long term benefit
dependency, sanctions would not amount to such a penalty. In the light of this
argument it is interesting to be able to observe that some courts seem to be
adopting a more critical attitude.
In the Netherlands the
first court to create a breakthrough was the local court of Arnhem.[20]
The case dealt with a social assistance beneficiary with an academic background
who had been told to accept certain activities, offered to him by the ‘training
centre’, a facility set up under the work first programme of the town of Arnhem. The claimant was told to sign a
‘job experience agreement’ under which he was given the choice either to work
as a public gardener (weeding, hoeing), or to pack boxes of super glue. He had
signed the agreement but subsequently refused to co-operate in the activities
imposed on him by his ‘case manager’. This resulted in a penalty of a 40%
benefit cut, during the period of one month. In its judgement the court came to
the conclusion that the practices of the local council of Arnhem were not contrary to the
prohibition of slavery and forced labour contained in art. 4 ECHR. The fact
that the workfare activities were not voluntary because imposed under the
threat of a penalty, did not alter this conclusion because, according to the
court, social assistance is merely a safety net which presupposes that a person
will return to paid employment as soon as possible. But while on the one hand the
court ruled that in this case the activities offered should not be considered
as disproportionate and excessive, it did on the other hand envisage that work
first practices may run contrary to art. 4 ECHR, i.e. in the case of a
beneficiary who is forced to carry out activities under threat of a penalty for
a longer time when it is clear that such activities are in no way conducive to
the re-integration in the regular labour market.
Later, in another case the Central
Appeals Tribunal upheld the rationale of the Arnhem court and offered a more extensive
abstract framework for deciding when workfare may run contrary to the
prohibition of forced labour. This is
a new approach in the case law.
In the meantime, in February 2013
the British Court of Appeal rejected the recently introduced British Mandatory
Work Programme.
The case was brought up by an unemployed geology graduate, miss Caitlin Reilly.
She was doing voluntary work in a museum, but was then forced to take on unpaid
work in a Poundland store in Birmingham. However, the court avoided the forced labour implications of this
because in its opinion the regulations
behind the work scheme did not comply with the Act of Parliament that gave the
DWP the power to introduce the programme. At least for the time being Miss
Reilly was let off the hook.
In Germany the
ein-Euro-job-scheme under Hartz IV was tested in 2008 by the
Bundessozialgericht. This case dealt with a 58
year old engineer who had to place protective casing around young trees for a
local council company in Bavaria. For this job he merely received a small
compensation fee. He refused because his 30 hours’ work week made it impossible
for him to apply for a regular job. This argument was rejected by the court on
grounds that the labour was organised by the local community for public
purposes and had to be considered as additional to regular work.
While in
this latter two cases in Britain and Germany the forced labour argument was not dealt with
by the courts, It did figure in a ruling of the Czech Constitutional Court of 27
November 2012. This was a case brought
in by some opposition MPs of the Czech parliament against a Mandatory Labour
Programme in the Czech Republic. The MPs complained that this scheme is against
the forced Labour convention of the ILO, the prohibition of forced labour of
the ECHR and the very right to social security itself. The Czech court’s
decision is a remarkable one. It crushed the scheme to bits: benefits cuts are
a disproportional means of forcing people to accept work forced upon them by
the authorities.
The Czech
ruling is an uncompromising one, unique among its sort, made possible by the
harshness of the mandatory work scheme introduced. People who are unemployed
for longer than two months have to accept any unpaid labour. When they refuse,
they are scrapped from the employment register with the effect that they lose
benefit all together. Except for some exceptional cases, the claimants have no
influence over the work and the conditions under which it has to be carried
out. According to the court:
“the state
treats them in the same manner as persons sentenced for a crime, only for the
reason that they became unemployed and are exercising their legal rights,
without violating any legal obligation. Therefore, the obligation to accept an
offer of public service does not serve to limit social exclusion, but to
intensify it, and it can cause those performing it, whose work has the same
elements externally (for other people) as serving a sentence, humiliation to
their personal dignity”.
This is a
relevant judgement which I would recommend to any person who is interested in
workfare policies. Many aspects also pertaining to the work schemes in other
countries are critically scrutinized: the curious status of the labour relationship,
the risk of arbitrary practices, the coincidental nature of the type of jobs
available and the argument that the work must be done for the purposes of work
training. Many of the arguments defending such aspects are utterly rejected or
refuted.
One
wonders how the Czech court would have looked upon the Mandatory Work
Programmes applying in the Netherlands, Germany and the UK. Would they pass the test? The ein-Euro-job-scheme probably would by reason
of its strict regulation of rights of beneficiaries in the SGB. Perhaps the
Mandatory Work programme would if only because of the short duration the work
has to be carried out (30 hours a week for four weeks). But what about the Netherlands, where the maatschappelijk
nuttige tegenprestatie may be imposed for unlimited duration in a way which
is left virtually unregulated by law?
What we
learn from the fresh approach of the Czech court is that the rights the
claimants under the workfare schemes should be made explicit. The work may not
be degrading, there should be some right of choice, the work should benefit the
claimant, individual circumstances must be taken into account as well personal
beliefs, working conditions and working times should be adhered to, etc. These
things must be regulated in the law, not just in internal guidelines like the
ones that exist in the UK, or not simply unregulated as was the case in the
Czech Republic and still is the case in the Netherlands’ maatschappelijk nuttige tegenprestatie.
It is
lessons such as these which illustrate exactly what role the judiciary can play
in counterbalancing the rise of the repressive welfare state.
6. Conclusion
In this
article we discussed the trend of introducing increasingly strict obligations
and sanctions for social security claimants in the Netherlands, the UK and Germany. We referred to this trend as the
rise of the repressive welfare state. It was argued that such a welfare state
must be looked upon in a critical way because it upsets the balance between
rights and obligations in social security and may result in degrading treatment
and an undermining of the “elevating function” of social security. Courts play
an important role in maintaining the balance between rights and obligations. We
have discussed some examples of case law in the three countries, but the
champion of all courts is the Czech constitutional court which in November 2012
led the way to a more fundamental human rights approach to scrutinize
repressive welfare state excesses.
Grainne McKeever, Balancing rights and
responsibilities: the case of social security fraud, Journal of Social Security Law 2009 .
Court of Arnhem, 8 October 2008, LJN BF 7284
CRvB 8 februari 2010, LJN
BL1093
Court of Appeal [2013] EWCA Civ 66; [2013] All ER (D) 121 (Feb)
BSG 16 Dezember
2008 AZ: B 4 AS 60/07 R
