Law and reality in social welfare Intercantonal comparison of legal mobilisation

Social welfare is an important safety net in Switzerland. At federal level, however, there is very little legal protection on the benefits meant to safeguard people’s livelihood. Article 12 of the Federal Constitution lays down a fundamental right to welfare that seeks to protect citizens from a undignified life of begging. Apart from that, there are no federal regulations on how cantonal social welfare has to be structured.

Social welfare follows the principle of individual needs-based benefits and is primarily governed by cantonal legislation. However, the cantons’ margin of judgement and discretion is considerable and has been little researched from a legal perspective. In addition, social welfare is implemented in extremely different cantonal structures.

At the same time, studies show that the non-take-up of social assistance benefits is a significant problem in quantitative terms, and that across Switzerland as a whole, around a quarter of people living below the poverty line who are entitled to social welfare do not claim it.

The project, which is being carried out in a collaboration between BFH and HSLU, examines the question of what legal framework conditions as objective factors lead to the mobilisation of social welfare law – i.e. a justified claim is asserted – or not.

Course of action

The first module examines the current social welfare legislation of the various cantons, which is anchored in positive law, and compares it with mobilisation-related criteria. These criteria are located on the individual level (e.g. clear communication of entitlements, formulation of obligations and sanctions), as well as on the organisational-structural level (e.g. municipalisation, professionalisation, funding). To visualize how the current social welfare law promotes or hinders mobilisation at both levels a graph is produced for each canton.

Module 2 examines the practice of implementation through case studies. The focus here is on dealing with open legal concepts and the margin of discretion. Interviews with implementing actors as well as people who do not receive social assistance despite precarious life situations are carried out to gain information on whether the subjective reasons for (not) mobilising social assistance can be attributed to the legal regulations.

These results are combined in Module 3 with the analysis of the legal basis so that the strengths and weaknesses of the various cantonal systems can be comprehensively assessed.

Based on this assessment, Module 4 concludes with optimisation proposals aimed at both legislation and the application of the law.

Contact:

Please write to us at the project e-mail address:

Results

The analysis of the cantonal social welfare regimes was based on ten mobilisation indicators. It was assumed that the legal structuring of social assistance can promote or hinder mobilisation at both the individual level (structuring of rights and obligations) and the organisational-structural level (requirements for enforcement structures).

Individual legal situation:

• Welfare-state and integration orientation of social assistance 

• Legal structure of the right to economic social assistance

• Legal structure of the right to personal assistance

• Legal structure of the obligations

• Legal structure of enforcement (including sanctions)

Organisational-structural framework conditions:

• Legal structure of the organisation
• Legal structure of the financing 
• Accompanying measures in legal protection
• Access to legal remedies
• Legal structure of the non-contentious procedure

Based on this assessment, the cantons can be plotted in a coordinate system. It shows which cantons have enacted social welfare legislation that strongly promotes mobilisation (positive characteristics of both levels, green quadrant), which cantons have social welfare legislation that strongly hinders mobilisation (negative characteristics of both levels, red quadrant) and which cantons have mobilisation deficits at one of the two levels (yellow quadrants).

The chart shows that cantonal legislation differs greatly in terms of its mobilisation effect. The differences are particularly pronounced at the organisational-structural level. However, it is also striking that at the individual level, the spread is at a relatively low level and so the potential for optimisation is correspondingly high. These cantonal differences lead to the question of the extent to which this variance is problematic from a constitutional point of view.

Outlook

After a subsequent qualitative examination of mobilization factors in legal reality optimisation proposals for the social welfare system are formulated with regard to the factors identified.