This blog post is based on the book Van hard naar hart? Handhavers over de menselijke maat in de Participatiewet. This research is funded by the Gratama stichting.
Introduction
Over the past fifty years, enforcement of social security legislation in the Netherlands has been subject to big changes. The first change is from the assumption that all beneficiaries can be trusted and that there is no social security fraud, to the notion that ‘fraudsters’ must be punished. The Law on Fines, Measures and Recovery (1996) and the Act Tightening Enforcement and Sanctions Policy SZW legislation (‘Fraud Act’, 2013) were introduced in response. This led to a very strict enforcement regime. During the implementation of this stringent legislation it became clear that this enforcement regime may have been too strict. A new switch is set in motion in which the policy focus is more on customisation (maatwerk) and the human dimension (menselijke maat). The most recent proposal for this is the Social Security Enforcement Act.
In this blog post I focus on the perspective of enforcement officers on this newest change. By means of action research, consisting of group discussions with enforcement officers, a national questionnaire among the same professional group and a number of in-depth interviews with them, a picture was sketched of the enforcement officers themselves, their daily enforcement practice, the space they experience for customisation and human dimension, and their vision on the proposed Social Security Enforcement Act. This blog post describes the main findings of this research.
A variety of enforcement officers
Enforcers are diverse in their vision of benefit recipients and in their behaviour towards them. Approximately half of the enforcers are more suspicious and the other half is more trusting towards benefit recipients. Enforcers see themselves in different role per
ceptions towards benefit recipients. One third of the enforcers generally describe their role as ‘police officer’, ‘teacher’ or ‘counselor’. In terms of role perception, it is noticeable that enforcers who see themselves as police officers more often have a distrustful attitude towards benefit recipients and that enforcers who see themselves as supervisors more often have a trusting attitude.
The enforcement officers are also divided with regard to the four identified enforcement styles (‘flexible & persuasive’, ‘flexible & punitive’, ‘rule-oriented & persuasive’ and ‘rule-oriented & punitive’). Approximately one quarter of the enforcers can be recognised in each of the enforcement styles. Enforcers who have a ‘flexible & persuasive’ enforcement style more often describe themselves as a counselor towards benefit recipients. Enforcers who have a ‘rule-oriented & punitive’ enforcement style more often describe themselves as a police officer towards benefit recipients.
Attention for the benefit recipient
Enforcement officers indicate that ‘customisation’ and ‘human dimension’ are important in their daily work. Although the descriptions of enforcement officers relative to these concepts show that there is no clear definition in practice, it does emerge that there is some room or flexibility in the implementation of enforcement powers and that enforcement officers also use this. For example, four out of five fine-officials (officials who impose fines) sometimes do not impose a fine. Common terms in customisation and human dimension are ‘looking for a solution’, taking into account the ‘consequences’ of a decision and ‘future-oriented enforcement’.
In implementation practice, space is mainly sought to tailor enforcement choices to the benefit recipient for two reasons: to preserve the future prospects of these benefit recipients and to account for the municipality’s own actions. For example, when enforcement files have been in queue for a long time, or benefit recipients were not properly informed of the duty to provide information, or when the municipality could have been aware of a violation earlier, enforcement officers tend to look for customisation and the human dimension. The new Social Security Enforcement Act provides more scope for this.
Enforcement officers fear a policy that is too soft
Although enforcement officers acknowledge the importance of customisation and a human dimension, enforcement officers also fear that enforcement policy is going too far to the ‘soft side’. In practice, there are municipalities that no longer impose fines: 42% of enforcement officers indicate that the municipality does not (any longer) impose fines. Enforcement officers mainly express that they are afraid that ‘real fraudsters’ will get away. This fear is reinforced by the fact that some enforcement officers experience that enforcement does not have a central position in their municipality. They state, for example, that there is no enforcement policy or only an outdated policy.
A responsive government requires efforts from enforcement officers
Since the decentralisation of healthcare, work, and youth care in 2015, municipalities have been responsible for implementation. These three transitions were accompanied by cutbacks which result in less frequent contact between benefit recipients and the municipality. For a responsive government to function, there needs to be (frequent) contact between the officials and the citizens. In addition, enforcement officers indicate that they sometimes need to be creative to find space between the lines. It can require the necessary legal dexterity to realise customisation. Customisation and the human dimension require efforts from enforcement officers and therefore time and money. In the report ‘Harsh effects on citizens due to bottlenecks in (implementation) legislation and regulations within social security’, sufficient time is mentioned as a prerequisite for offering customisation. The General Audit Office states that customisation is labor-intensive and therefore ‘relatively expensive’. Ortlep and colleagues also state that it is important that more resources and capacity are available in the implementation practice.
Equal and unequal cases
Enforcement officers describe arbitrariness as a risk of customisation and human dimension. They fear that benefit recipients will not be treated equally. The risk of arbitrariness is often linked to the precedent effect. The fear of arbitrariness and precedent is based on, among other things, the principle of equality. The principle of equality means that equal cases are treated equally and that unequal cases are treated unequally to the extent to which they differ from each other. With regard to the principle of equality, scientists argue that this does not have to be opposed to the human dimension. ‘[T]he (material) principle of equality requires that unequal cases are treated unequally to the extent of their inequality’ (p.4, translated De Winter). The requirement that administrative bodies act in accordance with the principle of equality in many cases requires that they provide customisation (Ippel & Scheltema). In cases in which the Administrative High Court assesses whether equal cases are treated equally, appeals to the principle of equality are often rejected because the cases submitted are not considered comparable. Although enforcers in the implementation practice emphasize that it is important to substantiate choices and they actually see room for customized solutions and a human dimension, this does not alter the fact that there is a fear of arbitrariness and legal inequality in the implementation practice of enforcing the duty to provide information.
Conclusion
Given the policy shift towards (more) customisation and a human dimension, it can be stated that enforcement of the duty to provide information under the Participation Act is indeed shifting from ‘tough’ to ‘tender’. In practice, there are municipalities where there is already room for customisation and a human dimension. At least on paper, in the Social Security Enforcement Act, there seems to be more room to take into account the situation of the benefit recipient. The Childcare benefits Affair shows that it is important for legislators, implementing organisations, executors, and judges to know that homo juridicus does not exist. Benefit recipients are people who sometimes have limited capacity to act, who sometimes make a mistake and who sometimes live in difficult circumstances. The current ideal image of a government is a responsive government that cares about its citizens. This does not mean that there are no intentional violations of the duty to provide information and that municipalities can never impose fines again. It does mean that enforcement officers (and municipalities) must make well-considered choices. The diversity of enforcement officers in the implementation practice can contribute to this. Enforcement officers can discuss the choices they make in customisation and human dimension in order to arrive at a balanced implementation. And municipalities can learn from each other in this regard.
Paulien de Winter works as an associate professor of Legal Theory at the Institute of Constitutional, Administrative Law, and Legal Theory at Utrecht University.
