This paper looks into the diffusion of social assistance rulings, especially about welfare-to-work programs, in Switzerland. It argues that the courts, particularly the Federal Court, has gained an implicit policy making role that is theoretically and practically problematic.
In the context of welfare retrenchment and the rise of the activation paradigm in social policy, “employable” recipients are increasingly requested to show various kinds of “integration efforts” and to perform different kinds of “work” in welfare-to-work programs (WTW) in order to maintain their welfare payments.
However, in contrast to the first labour market as well as to programs under unemployment and disability insurance, this work is largely unregulated and hardly defined in (cantonal) laws and regulations. This concerns, inter alia, notions of decent work, fair and favourable working conditions, pay, holidays or occupational health and safety.
Despite unfavourable conditions of access to justice, some welfare recipients have challenged their mandatory participation in such programs in the courts. Over 230 cantonal rulings between 2005 and 2017 deal with WTW programs. Federal Court decisions are, however, rare but nevertheless very important because no federal regulations exist. Social assistance is the responsibility of the cantons, which results in great heterogeneity. This heterogeneity is partly mitigated by the guidelines of the Swiss Conference of Social Assistance (SKOS), an association where the cantons and almost all municipalities are members.
The analysis shows
1. that the Federal Court (BGE 130 I 71, BGE 139 I 218, BGE 142 I 1 in 2004, 2013 and 2016) has 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 hardly look into the programmes’ realities. Cantonal courts tend to follow the Federal Court’s reasoning, but mostly ignore the legal doctrine that is predominantly critical vis-à-vis mandatory WTW programmes.
2. that the Federal Court’s arguments diffuse also into cantonal manuals on social assistance and that they are even integrated into the legally non-binding guidelines of the SKOS. Interestingly, the source of the arguments, namely the court decision, is omitted in most texts.
These results are problematic from the perspective of the separation of power for several reasons:
a) the decision of the court re-appears in guidelines as “truth” or at least as a reasonable common sense, and not as a concrete legal decision subject to political change;
b) the diffusion of a judicial decision into guidelines is a decision of the executive (in the case of cantonal handbooks), not the legislature
c) the diffusion into the guidelines of the SKOS is result of a corporatist setting where respective amendments, again, are not the result of parliamentary decisions, but of negotiations and compromises between members and cantonal ministers of social affairs.
Finally, the papers discusses possible remedies that prove challenging for a federalist and much decentralized system of social assistance.
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