Decentralizations in the social domain require major repairs to the system of legal protection, summary in English

As a result of recent social security reforms, Dutch municipalities have been given more powers in the area of youth care, social support and social assistance. This includes both more local powers for policy development (decentralisation) and more discretion to determine the outcome of individual claims (discretion). This research focuses on the constitutional implications of these changes. It concentrates on four central issues:

1. the changing legal relationship between government and citizens
2. the possibility of local policy differences between municipalities
3. the protection of personal data in the municipal social domain, and
4. minimum care obligations arising from fundamental economic rights.

The aim of the research is to investigate what problems arise with respect to these four issues and how these can be resolved. To this end, recommendations have been developed for the legislator, local government and the courts.

The following problems were among those identified:

The policy theory with regard to the legal relationship between government and citizens is ambivalent. The legislator wants to informalise and dejuridify the legal relationship with the citizens in order to better address the needs of the individual, (the humanized legal relationship). But these changes are not an end in itself. Financial cuts (efficiency / effectiveness) are one of the leading motives of the decentralisations. The new legal relationship must make it possible to convey the (unpleasant) message of personal responsibility in such a way that no (legal) disputes arise. This is sometimes achieved by deterring citizens from making a formal application (with the message as a portal), in other cases, the institutional context (kitchen table talks, district teams) is used. As a result the humanized legal relationship is in danger of becoming a mere instrument of austerity, which is not an improvement from the perspective of the citizen.

With regard to differences in policy and implementation between municipalities we have argued that the decentralisations in the social domain do not fully fit within the constitutional construct of decentralisation itself. A differentiated local approach may be appropriate for regional-specific situations. For instance an addiction problem in one region may be quite different from that in another region. When there are no such differences, the grounds for local differentiation soon fall away. At the very most, perhaps, such grounds can be traced back to a conscious democratic decision at the local level. But if such a decision has not been made (which is often the case), a breeding ground for discontent will be created, as people become aware that the levels of protection in their own municipality is significantly different to that in other municipalities. These differences are seen as being unjustified, as indeed they are, quite literally, unjustifiable.

With regard to the protection of privacy, municipalities are instructed to implement an integrated policy based on an organically grown, highly fragmented system. Thereby, they are judged harshly by the Inspectorate of Social Affairs on issues on issues which falls under its domain, for example, Suwinet. At the same time they have an open order from the Ministry of the Interior to establish an information policy for themselves and to find out how to meet the legal standards for data protection. In the meantime, it is apparent that at the local level too little attention is given to privacy protection. Furthermore, the question arises whether the standards of the Dutch Data Protection Act are well suited to achieve a high level of privacy protection in the social domain. For example, citizens in the municipal social domain cannot be expected to have control over their personal data given that people in this target group (often) have no control over their own life in the first place.

Finally, with regard to the minimum care obligations arising from fundamental economic rights, there are concerns about the impact on the social safety net. A by-product of the decentralisations is that the actions of the municipalities are more often placed outside the law (de- and exjuridifying). There is also a risk of erosion of the local social infrastructure, due to increased internal competition between various policy priorities (local dumping). Furthermore, the strong disciplinary character of social assistance, accompanied by intense controls and high penalties, can drive citizens into poverty. These processes affect those most disadvantaged in the local welfare system due to circumstances for which they are themselves held responsible (alleged fraud, debt, etc.), to certain social characteristics (behavioural problems, addiction, homelessness, etc.) or due to a specific legal status (no regional ties, weak residence status, etc.). The undermining of the social safety net is problematic from the perspective of minimum care obligations arising from fundamental economic rights. These minimum care obligations are, after all, based on the assumption that as citizens are less able to look after themselves, the state will become more involved in their care.

To address these problems, a number of recommendations have been made. These focus on the system of checks and balances between the three powers of the constitutional state: the legislator, (local) government and the courts. When the relation between these actors is in balance, problems in the local social domain can be solved in an organic manner: the administration has to respond to court decisions which are critical of local policies and individual decisions. To maintain healthy relationships in the constitutional state it is important to perform ongoing maintenance on a well-functioning system of judicial protection. In this regard, we support the proposal for an integrated settlement of disputes in the social domain such as that developed under auspices of the government commissioner for general rules of administrative law, Michiel Scheltema. A central aspect of this proposal is that the courts can test the validity of the actions of local government in all its aspects, also when private actors are involved in public social service delivery. Such an improvement in legal protection sends out a strong signal to the contemporary social policy debate that is constantly seeking to weaken the legal position of the individual citizen. It also helps to prevent the sliding effect from right to favour when minimum protection is granted. Furthermore, we have argued in favour of the establishment of a (collective) complaints procedure for fundamental social rights violations at the Netherlands Institute for Human Rights. Such a procedure can function as an early warning system for failing local social policies in times that the state is seeking to relax (financial) control over the municipalities. A complaints procedure for fundamental social rights violations also contributes to an improved awareness of the implications of these rights at the local level, when new policies are prepared. Finally, we have spoken out in favour of a new law on information management at municipalities that contains specific rules on privacy protection at the local level, to be supported by new ICT-infrastructure which offers privacy solutions.

Another recommendation concerns the responsibility of municipalities not to arbitrarily increase differences in local social policy. To this end a number of governance instruments can be used: model regulations and guidelines, best practices and knowledge exchange; inter-municipal cooperation, interadministrative supervision, and last but not least, more democratic legitimacy for differences between municipalities.

Finally, the courts should actively and critically test local policies and decisions. A differentiated local approach should be based on consciously made democratic decisions at the local level. When such decisions have not been made and differences are merely the result of arbitrary bureaucratic interpretation of centrally determined policy frameworks, the courts should step in. Also the question of whether the local authorities provide customization should be fully assessed by the courts. If statutory provisions require a decision to take all circumstances of the individual into account, the court cannot do otherwise than assess whether all that individual’s circumstances have been taken into account. Finally, the courts should critically assess whether local policies and decisions are in line with higher legal norms, including socio-economic fundamental rights, in particular when the quality of the safety net for the most vulnerable is endangered.