General changes / decentralisation of social security
On the first of January 2015 the new Youth Act (Jeugdwet), Social Benefits Act (Participatiewet) and the Social Support Act (Wet Maatschappelijke Ondersteuning: WMO) came into effect by which the government decentralized several social security’s acts. As a result municipalities are responsible for the implementation and provision of a wide variety of social welfare programs, youth protection measures and providing reasonable accommodations to vulnerable people within society like the elderly and people with disabilities. The municipalities were given financial and policy discretion in implementing the new system. As a consequence it depends on the municipality where one resides if and which services are provided. As the scheme for income dependent benefits has also been amended the social security scheme no longer provides for an adequate standard of living for some groups that are entitled to social security.
A.1. Social Support Acts (& articles 11 and 13 ICESCR)
In December 2014 the Senate acceded to the new ‘Long-term Care Act’ (Wet Langdurige Zorg: Wlz), which replaced the ‘General Act Special Care Costs’ (Algemene Wet Bijzondere Ziektekosten: AWBZ).126 With this new law health insurances finance necessary nursing and care; municipalities are responsible for domestic support / home care (thuiszorg). The latter mentioned regulation was included in the Social Support Act (WMO). Concurrently budget cuts, up to 42 % in 2016, in the budget for long-term care were announced, with the assumptions that elderly and chronically ill people prefer to stay at home as long as possible. The criteria for admission in a nursing home became more stringent as empowerment of the target group through home care is promoted. Another assumption was that for domestic support the target group primarily can rely on family, friends and neighbours (mantelzorg). The new law came into force on the 1st of January 2015.
Municipalities implemented their new responsibility in different ways. Some leave it to the market and only provide financial support to people with a minimum income; some have contracted agencies of domestic help and limit the provision to a maximum number of hours; and some apply a certain threshold, meaning that the municipality only will finance the hours above this threshold.127 Municipalities have to assess the need for domestic support individually, through so called ‘kitchen table conversations’ by ‘municipal neighbourhood teams’ (wijkteams), but quite some municipalities ignore this regulation. Moreover, people are required to make a personal financial contribution (eigen bijdrage) for the support and care they receive.128 As a result 25 % of those in need are not applying for support anymore.129 Domestic workers lack time to interact with their clients anymore and therefore cannot signal deterioration of their health, such as signs of dementia, loneliness, depression and malnourishment.130 Furthermore, by being more dependent on family, friends and/or neighbours, elderly and others run the risk of physical and/or mental abuse.131
The submitting parties recommend the Committee to urge the Dutch government to
guarantee that vulnerable groups have (equal) access to adequate health related domestic support schemes.
promote and monitor the compliance with national qualitative and quantitative norms for the provision of domestic support to elderly, chronically ill and disabled persons.
A.2. Social and income dependent benefits (& articles 2 and 11 ICESCR)
As a contrast the legal framework and amendments of the Social Benefit Act is too rigid to be able to respond to those in need even in poignant cases. The legal framework does not accord municipalities the competence to compensate income of families in need who as a result of new rules cannot cover the costs of rent, health care, food and clothing anymore.
The new law lowers the legally defined amount a single-parent households receives, equating it to the needs of a single person’s household. Single parent households are compensated for the loss of income by increasing the income dependent child budget (kingebonden budget) with the so called single-parent-cap (alleenstaande ouderkop) provided for by the tax authorities. The act also counterbalances the accumulation of multiple social-aid incomes in one household who can share the costs of living, the legally fixed amount is made dependant on the number of adults living in one household thereby lowering the amount each adult is entitled to. This concept is called kostendelersnorm (cost sharing norm). More incentives with regard to (volunteer) work have been introduced as well punitive sanctions (fines) next to the already existing reparatory sanctions (maatregelen) which can amount to the exclusion of social benefits up to several months. Those sanctions are strictly applied and undermine efforts and legal obligations to prevent poverty and (municipal) debts restructuring schemes.132 In addition a ‘language requirement’ has been introduced to enhance chances of job opportunities. Lack of sufficient effort to acquire Dutch language skills can be punished by lowering the amount of social benefits. This requirement is exclusively targeted at migrants and refugees and therefore discriminatory.
Persons who lack a residence permit are excluded from receiving social benefits. Families where one of the partners lacks a residence permit receive only have the legally fixed amount as to prevent undocumented family members to profit from the social security’s scheme. As a result many families with undocumented members find themselves in a situation of destitution because they are also barred from receiving income dependent benefits for the same reason. Some municipalities have extra-legal schemes to prevent these families from becoming homeless. Those schemes differ greatly as per municipality. Some municipalities have no destitution-schemes. Several governmental and civil society organizations have called upon the government to provide for a solution to the lack of adequate standard of living.133
Income dependent benefits on the other hand are provided by the national tax authorities (Belastingdienst Toeslagen). Those benefits compensate the costs of rent (huurtoeslag), mandatory health insurance (zorgtoeslag), cost of daycare for children (kinderopvangtoeslag) and cost of raising children (kindgebonden budget). Some single-parents are barred by law of receiving income dependent benefits despite their need. The ones that are excluded are single parent households who have a partner who is either undocumented, in detention or residing in a psychiatric care facility. Reason for this discriminatory exclusion lies in the definition of partnership for tax purposes. Partner for fiscal purposes is the person one is legally married to or belongs to the same household. Therefore single parents older than 27 years old who are living with relatives are also affected in the sense that they are excluded from receiving income independent benefits to raise their children (kindgebonden budget en alokop). Municipalities on the other hand consider a single parent someone who effectively is raising his/her children alone, or has a undocumented partner who is not entitled to social benefits. As a result the aforementioned groups of single parents receive less social benefits and no compensation through income dependent benefits resulting in destitution, see appendix A, contrary to the governments statement in their report, para. 102.
The result of the far reaching amendments of law and decentralization is disastrous for these families as the have to make amends with more than 50% less income far below any definition of poverty threshold. According to the government the solution of the problem of destitution can be ‘solved’ through divorce, a solution that violates the right to family life.
The submitting parties recommend he Committee to urge the Dutch government to safeguard that social benefits guarantee an adequate standard of living. To safeguard this goal:
access to income dependent benefits on the basis of need.
access to social and income dependent benefits for eligible persons regardless of lack of residence status of a family member.
access of single parents to income dependent benefits on the basis of need not marital status (e.g. partners in detention, psychiatric care or abusive partners).
A.3. Dutch minors raised by undocumented single parent (& 2 and 11 ICESCR)
Dutch children who are being raised by an undocumented single parent, mostly mothers, are barred from receiving child and family benefits and are growing up in extreme poverty. A Dutch child raised by an undocumented parent is entitled to social benefits of € 240, = a month. Sometimes this benefit is supplemented by the municipality with care in kind (shelter) or benefits for housing costs. This practice differs from municipality to municipality, with some municipalities providing for no help at all.
As undocumented persons are barred from receiving social benefits by law (Koppelingswet) undocumented parents are not eligible for family and child benefits which are intended to safeguard the development of children and prevent child poverty. The exclusion of Dutch minors from receiving child- and family benefits is not mitigated by the courts. Dutch children are not perceived to be victims of discrimination as the courts do not consider rights under the ICESCR and CRC (protection children’s rights) to be applicable. The government knowingly abandons these children contrary to the governments statement in their report, para. 102.134
The position of the government is that Dutch minors who are raised by undocumented mothers can get all the care they need in freedom restricted family centres for rejected asylum seekers even though they are not being deported. Those family centres are purposely of sober character (more sober than asylum reception centres) to stimulate departure. The conditions in those family centres have been severely criticised by several NGO’s for violating children’s rights.135 In a 2014 court verdict these centres have been judged to be harmful for minors and have forbidden the settlement of Dutch minors in these centres by restringing their and their mother’s freedom of liberty. Damages have been rewarded.136 Since this ruling undocumented mothers with Dutch children have been expelled from these centres with no place to go137 as most municipalities reject applications for help of those families and threaten to implement a protection measure separating the children form their only caretaker in violation of the right to family life.138
The submitting parties recommend the Committee to urge the Dutch government to reduce child poverty by safeguarding the rights of Dutch minors to social benefits and adequate standard of living regardless of their parents immigration status.
The submitting parties recommend the Committee to call upon the Dutch government to guarantee to abolish the practice of place Dutch minors in deportation centres and guarantee their access to social services provided by municipalities and enable those children to grow up within the community.