Social & Economic rights

Friday, 26 August 2011

Problems in Accessing Social Protection Related to the Application of Article 84 of the Law on Social Protection

Although the beneficiaries of financial social assistance already encounter numerous problems, the new Law on Social Protection (hereinafter referred to as the Law) imposes another requirement for obtaining this kind of assistance, thus posing an insurmountable obstacle to the exercise of the rights of many beneficiaries.

Article 84 of the new Law provides that an individual, a family member who is unable to work, must accompany a request for determining eligibility to receive financial social assistance with a final court decision, court settlement or proof on having initiated a procedure before the competent court for determining the obligation of a relative who does not live in the same household but who is obliged and able to participate in his/her support in accordance with the law governing family relations.

This provision further complicates the exercise of the right to social protection, since the legislator has decided to additionally burden the already complicated administrative procedure by filing a lawsuit. However, the filing of lawsuit requires the payment of prescribed fees. Hence, if we take into consideration that in mid-2011, the number of the beneficiaries of financial social assistance grew to 190,000, and that, according to the latest estimates of the Statistical Office, about 700,000 people in Serbia live below the poverty line, it is clear to which extent the support lawsuits will overload the already overburdened courts.

We should also bear in mind that the beneficiaries of financial social assistance are poor, and in most cases, insufficiently educated and informed, often illiterate, and the social welfare centres often do not provide them with clear and complete information about the real meaning and possible effects of a lawsuit. Being a lay party, the beneficiary of financial social assistance is not able to draft documents and file a lawsuit to the court independently and without expert legal assistance. Although some municipal administrations provide free legal aid services, it is still not enough to help all those in need of free legal assistance in order to submit a request for financial social assistance and fulfil the requirements for filing a lawsuit for support.

The Law stipulates that it is sufficient to submit evidence that the procedure has been initiated before the competent court along with a request for financial social assistance. However, it remains unclear whether a final court decision must be presented for the extension of assistance, or whether it is necessary that the court case be completed by the deadline for submitting a request for the extension of financial social assistance. Moreover, it seems unjustified that a lawsuit is filed against those relatives who are themselves the beneficiaries of some form of social assistance or unemployed and unable to support themselves and their family.

The following example shows how the application of this Article of the Law looks like in practice:

Drita lives with her common-law husband Avdul in an informal Roma settlement in Cukaricka suma. They have three minor children and both of them are unemployed. The situation is further complicated by the fact that Drita’s husband is a "legally invisible" person and does not possess any identification documents. Therefore, he was not able to recognise his paternity and without the registered data about the father, he is not legally obliged to support his children since his identity cannot be determined before the court, which formally makes Drita a single mother. On the other hand, Drita’s father is permanently employed in JAT as a manual worker and supports himself and three other people – his unemployed wife, an unemployed son and a minor daughter. In order to qualify for financial social assistance, under the new Law, Drita as a legal representative of her three minor children who have been taken away from her and are currently in the reception centre, must file a lawsuit against her father on behalf of her children because under the Family Law he has an obligation to support his grandchildren since they are unable to work and their parents do not receive any income. Drita is not on good terms with her father because he does not approve of her relationship with Avdul, and filing a lawsuit for support would only worsen their bad family relationships. On the other hand, if Drita does not file a lawsuit, she will lose income and the children will not be returned to her since she will not be able to ensure financial security. The procedure for returning the children to the family is ongoing.

Another problem, faced mainly by Roma people/residents of informal settlements, is that very often they do not have registered permanent residence, and many of them even temporary residence. The situation is especially difficult for "legally invisible" persons who do not have personal documents and for whom it was difficult or impossible to exercise the right to social protection even before this newly imposed requirement. On the other hand, if people without registered permanent or temporary residence have a legal obligation to support the family members who are unable to work, it will be a problem to establish the territorial jurisdiction of the courts before which a lawsuit against these individuals should be filed.

The new legal provisions seemingly allow the increased number of beneficiaries, greater coverage of the poor, as well as higher cash benefits for the existing beneficiaries. Nevertheless, by prescribing such provisions, the legislator undoubtedly intended to reduce the number of beneficiaries of financial social assistance bearing in mind that many people would rather give up requesting assistance than file a lawsuit against their family members. Some of them will give up for the fear of disturbing family relationships or additionally worsening their relatives’ often adverse financial situation, while others will give up because they are not able to initiate a court procedure without legal assistance, and thus meet the requirement for the submission of a request for financial social assistance.

The introduction of mandatory lawsuit against the nearest relatives only further complicates the already complicated administrative procedure. Such a requirement leads to the situation that many beneficiaries will not be able to exercise the right to financial social assistance. This approach stultifies the very essence of social protection whose purpose is precisely to help the most vulnerable layers of population to cope with poverty and penury, and not to deny them that right by placing conditions that they cannot meet, thus directly violating the basic principles of social protection - the principle of efficiency, the principle of availability of social protection and the principle of the best interests of beneficiaries.

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Praxis means action
Praxis means action
Praxis means action
Praxis means action