Welfare sanctions and the right to a subsistence minimum: A troubled marriage

AuthorValery Gantchev
Date01 September 2020
DOI10.1177/1388262720940328
Published date01 September 2020
Subject MatterArticles
Article
Welfare sanctions and the
right to a subsistence
minimum: A troubled
marriage
Valery Gantchev
Rijksuniversiteit Groningen, Groningen, Netherlands
Abstract
Can welfare sanctions and the right to a subsistence minimum coexist? The present article sheds
light on this question by examining recent developments in German social assistance law and
placing them in the broader international legal context. In November 2019, the German Consti-
tutional Court declared a large portion of the applicable regime unconstitutional because it vio-
lated the basic right to a guaranteed subsistence minimum. The first part of the article examines
this German basic right and the way its normative requirements are applied by the Constitutional
Court to welfare sanctions. Two important points of reference which are discussed relate to the
effectiveness of the measures and the availability of sanction mitigation instruments that safeguard
the constitutionally guaranteed subsistence minimum. The second part of the article carries out a
similar examination into the international human right to social assistance and the respective case
law of the international supervisory bodies. A comparative legal analysis is carried out in the third
part, which highlights the similarities between the German and the international legal approach to
minimum social protection and welfare sanctions. The article concludes with the observation that
welfare sanctions and the right to a subsistence minimum can only coexist under the condition that
states respect the absolute nature of minimum social protection and reconcile the adopted
measures with the primary objective of social assistance: reintegration and social inclusion.
Keywords
Welfare sanctions, right to social assistance, subsistence minimum, German Constitutional Court,
BVerfG, ESC, ICESCR
Corresponding author:
Valery Gantchev, Rijksuniversiteit Groningen, University of Groningen Oude Kijk in Het Jatstraat 26 Staatsrecht,
Bestuursrecht, Bestuurskunde Groningen, 9700 AS, Netherlands.
E-mail: v.gantchev@rug.nl
European Journal of Social Security
2020, Vol. 22(3) 257–272
ªThe Author(s) 2020
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DOI: 10.1177/1388262720940328
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1. Introduction
In the present day, sanctions have become an indispensable instrument in the toolkit of the modern
welfare state. They lie at the core of the current approach to welfare conditionality which promotes
compliance with benefit conditions through the use of negative incentives: recipients who fail to
‘hold their end of the bargain’ are sanctioned by stopping their benefits. Since the 1990s, the
inflation of welfare conditionality has gone hand in hand with a notable expansion in the scope,
severity and incidence of benefit sanctions.
1
In this landscape, the overwhelming majority
2
of
European welfare states have embraced the 100%benefit reduction sanction – a complete suspen-
sion of welfare payments, like the sword of Damocles hanging above the heads of recipients of
social assistance. Citizens who (repeatedly) fail to comply with the increasingly rigid and difficult-
to-navigate rules of welfare conditionality can be denied nearly any form of social protection. The
situation of these individuals is aggravated by the duration of the sanctions, which can range
somewhere between several months (in Germany and the Netherlands) and an astonishing 36
months (in the United Kingdom).
At the same time, the potentially devastating effect of welfare sanctions on vulnerable groups of
individuals is increasingl y being criticised. In his recent book Cruel, Inhuman or D egrading
treatment? Benefit Sanctions in the UK, Adler asks why benefit sanctions are not a matter of
greater public concern, considering they are ‘so ineffective and cause so much suffering’.
3
The
human suffering resulting from welfare sanctions was also the subject of Ken Loach’s 2016 film I,
Daniel Blake which emotionally touched viewers across European movie theatres. The film
portrayed the mental struggles benefit recipients must undergo when confronted with the rigid
system of rules and sanctions, and it culminated with the death of the main character who suffered a
heart attack. Unfortunately, such tragic events are not limited to the world of fictional movie
characters. The most extensive empirical research on the impact of welfare conditionality available
has concluded that welfare sanctions can ‘exacerbate[e] existing physical and mental illnesses and
[trigger] high levels of stress, anxiety and depression’ and, in a limited number of cases, provide a
fertile ground for suicidal thoughts.
4
The negative impact of sanctions on the well-being of benefit
recipients is amplified by the ineffectiveness of these measures. Academic research concludes that
while benefit sanctions get claimants off benefits, they do not necessarily get them into paid work.
On the contrary, sanctions are proven to have a generally unfavourable impact on the longer-term
employment perspectives of individuals and furthermore cause spill-over effects by pushing ben-
efits recipients into homelessness or turning them into drug dealers.
5
From a legal perspective, far-reaching benefit reductions have a strained relationship with the
right to a subsistence minimum which obliges states to provide minimum levels of assistance to all
vulnerable persons in need. This strained relationship has been subject of relatively little academic
research.
6
The present article contributes to the existing body of knowledge by looking at welfare
1. Dwyer and Wright (2014); Vonk (2014); Eleveld (2016); Adler (2018), pp. 45-61; Eichenhofer (2015).
2. The following countries have adopted sanctions of 100%benefit reduction: Austria, Belgium, Bulgaria, Czech Republic,
Denmark, Estonia, France, Germany, Italy, Lithuania, Luxemburg, Netherlands, Spain, Poland, Portugal, Romania,
Slovenia, Slovakia, and the United Kingdom; cf. Eleveld (2018), pp 463 et seq.
3. Adler (2018), p 9.
4. WelCond and Dwyer (2018), p 7; WelCond (2018), pp 19 et seq.
5. Griggs and Evans (2010); WelCond (2018), pp 18-19; Adler (2018), pp 73-86.
6. Notable exceptions here are Eleveld (2018); Eleveld (2016); for the German academic literature on this matter cf. note
19.
258 European Journal of Social Security 22(3)

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