Repressive Welfare States: The Spiral of Obligations and Sanctions in Social Security
| Date | 01 September 2014 |
| DOI | 10.1177/138826271401600301 |
| Author | Gijsbert Vonk |
| Published date | 01 September 2014 |
| Subject Matter | Article |
188 Intersentia
REPRESSIVE WELFARE STATES:
THE SPIRAL OF OBLIGATIONS AND
SANCTIONS IN SOCIAL SECURITY
G V*
Abstract
is article discusses the trend of introducing increasingly strict obligations and
sanctions for social security claimants in Germany, the Netherlands and the UK.
It is argued that this trend should be judged critically because it upsets the balance
between rights and obligations for bene t claimants and may undermine the
‘elevating function’ of social security. Courts play an important role in maintaining
the balance between rights and obligations. e article discusses recent case law in
the three countries and also refer s to a remarkable case at the Czech C onstitutional
Court of November 2012, which paves the way for a more fundamental approach to
scrutinising repressive welfare state ex cesses.
Keywords: abuse of rights; conditionality; forced labour; fraud; mandatory work
activity; sanctions
1. INTRODUCTION
In our present climate, socia l security fraud and abuse of bene t rig hts have become
a real public concern. Individual fraudsters who are caught out are paraded in front
of the camera and collectively scorned and ridiculed in the newspapers. People
increasingly report suspected cases of bene t abuse to specially created complaints
lines. Politicians from both the le and the right promise even stricter rules and
tougher sanctions. W hile it may be true that the improper use of bene t rights used to
be taboo, it has become someth ing of a public obsession.
* Gijsbert Vonk is Professor of Social Security Law at the University of Groningen. Address:
Department of Ad ministrative Law and P ublic Administration, O ude Kijk in ‘t Jatstraat 26, 9712
EK Groningen, the Netherlands; phone: +31 50 363 5765; e-mail : g.j.vonk@rug.nl. is article is
based on one published la st year in the Bullet in luxembourgeois d es questions soci ales, 30, 121–134.
Repressive Welfare State s: e Spi ral of Obligations and S anctions in Socia l Security
European Jour nal of Social Sec urity, Volume 16 (2014), No. 3 189
e increasing attention given to bene t abuse and fraud is not an isolated
phenomenon, but part of a wider trend which I refer to as the ‘rise of the repressive
welfare state’. is is a trend t hat has been commented on by several social academics
on both sides of the Atlantic. e uncrowned champion among them is the French
sociologist Loïc Wacquant, who wrote a stirring account of changes in the welfare
state in the United States. e book bears an ominous title: Punishing the Poor.1
Wacquant argues that, in t he US, 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
to which he or she can part icipate in society. Where these policies fail, t he state reacts
with sanctions and criminal measures. In this way, the ‘light’ American liberal state
has developed a ‘heavy ’ substructure to suppress the poor.
A repressive trend in social secur ity policy and legislation has also been reported
in Australia,2 in Britain3 and in the Scandinavian countries,4 partly as a by-product
of activation policies. is article focuses on the spiral of obligations and sanctions
in the area of both fraud a nd the suspected abuse of bene t r ights. e purpose is to
critically re ect upon t his trend in the legislation of three countr ies, i.e. Germany, the
Netherlands and the United K ingdom. e three objectives of th is article are:
1. to describe the spiralling obligations and sanctions in Germany, the Netherlands
and the UK with reference to legisl ative developments from a dynamic perspective
(sec tion 3);
2. to interpret these changes with reference to possible explanations and common
elements (section 4); and
3. to monitor t he responses of the judiciar y to the repressive trend in the legislation
(sec tion 5).
e l atter point i s of partic ular impor tance to t his art icle. Our so cial secu rity sys tems
function under the r ule of law. is means t hat the balance of rights and obligations
is, ideally, subject to interaction between t he legislature and judiciary. If the legi slature
and the admini stration focus strongly on the disciplinar y function of social security
and neglect the rights of the bene ciaries, then it is up to the courts of restore the
balance. e more uncompromising the pol icies, the more robust and const itutional
the response of the judiciary can be expected to be; addressing the needs of the
individual a nd formulating clear li mitations. It is interesting to see how, and to what
extent, courts have taken up this role. e discussion of case law focuses primarily
on the response to obligatory work activities as a condition for receiving bene t. By
way of a short excursion, I will also brie y pay some attention to a remarkable and
uncompromising decision of the Czech Const itutional Court on this matter.
1 Wacq uant (200 9).
2 Carney (2008).
3 Larkin (200 7) and further reference s included in Section 4 of t his article.
4 van Aerschot (2011).
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