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Legal Mobilization of Welfare Recipients in Switzerland and Implicit Policy Making of the Courts

Welfare State
Courts
Jurisprudence
Gesine Fuchs
Lucerne University of Applied Sciences and Arts
Gesine Fuchs
Lucerne University of Applied Sciences and Arts

Abstract

In the course of welfare retrenchment, the number of Swiss social assistance recipients has increased, also because of cost shifting games between different pillars of social security (social assistance, unemployment and invalidity insurance). The activation paradigm in social policy has reached social assistance as well: recipients are increasingly requested to perform different kinds of “work” and show various kinds of “integration efforts” in order to maintain their welfare payments. However, the legal and human rights status of this “work” in diverse occupational or integration programmes is unclear in terms of employment status, social security contributions, freedom of contract and the meaning of decent work. Despite unfavourable conditions of “access to justice”, some welfare recipients have challenged their mandatory participation in such programmes in the courts. The proposed paper looks into the claimants’ conditions and motivations of their legal mobilization and examines federal and cantonal court rulings between 2005 and 2017. The analysis shows, that a) courts have an ever expanding understanding of the subsidiarity principle (in the sense that self-help is possible on the individual level and thus the person in question is not eligible for benefits) and that b) courts deem almost any work activity as decent and positive for re-integration. However, they deny to discuss or consider decency in material terms resp. in the light of international conventions. This gives legitimacy to the opinions of politicians and welfarebureaucrats. Thus, courts have an implicit or indirect policy making role in what they state as well as in what they do not touch. The paper will try to assess the extent of this role.