(Anti) Social Card

The Law on Social Card unequivocally governs the area of social protection, that is, the forms of protection our society should provide to those in need, with the intent to battle their social isolation and grant them a life of dignity.

Considering the particular vulnerability of the citizens affected by the implementation of the Law, the legislator was obliged to align the prescribed principles of the Law on Social Card with their practical implementation, so there would be no discrepancies between the "written" and the "actual".

Article 3 of theLaw on Social Card defines its objective as "more effective realization of social protection rights and services, more equitable distribution of social assistance, improvement of the performance efficiency and proactivity of authorities in the field of social protection...".

Within the scope of its regular activities, A 11 Initiative provides legal aid in individual cases of violation of economic and social rights. Therefore, we have had the opportunity to directly see the consequences that the implementation of the Law on Social Card has had on specific beneficiaries.

We will present these cases, leaving it up to each individual to make their own judgment as to whether principles of efficiency, equity, improvement, and proactivity in the realization of rights and services in the realm of social protection have been accomplished.

Otherwise, any income generated during the period when a beneficiary receives the assistance will automatically reduce the amount of 11,122 dinars. This leaves you with a dilemma: either you will receive the financial social assistance amounting to 11,122 dinars per month, or forfeit the entitlement if income surpasses that figure, even if it is by a mere 100 dinars.

This so-called "choice" (which is in fact imposed by the system) often pushes people towards taking on jobs within the informal economy as an alternative, since it is superfluous to ask the question of whether one can survive on 11,122 dinars per month.

One such job is the collection of secondary raw materials - metal, plastic, cardboard, everything that we throw out and produce as waste, which can be collected, sold, and recycled. Recipients of financial social assistance in Kraljevo have been engaged in these jobs for years and with minor earnings and high risk to their health somehow managed to survive. And so it was until May 2022, when the Centre for Social Work in Kraljevo was one of the first centers to actively apply the Law on Social Card.

The Law on Social Card qualifies this activity as a source of income because buyers of raw materials report to the Tax Administration the basis and amount of these transactions. The records of the Tax Administration are the source of data used by the Social Card System, so the majority of beneficiaries entitled to financial social assistance lost this right during the regular revision conducted in May 2023.

The statistics and figures in this particular case were inexorable, so the fundamental principles of social work, - assessing the overall position of a specific beneficiary - was put on the back burner. Had the staff been actually committed to the social work that their institution stands for, they might have observed that the same recycling company was always the buyer, payments were generally "cash in hand" and the raw material collectors often didn't even get a copy of the receipts presented to the Tax Administration; that it is almost impossible to earn up to 200,000 dinars per month from the sale of secondary raw materials (as it is written in the decisions on termination of rights) and that the number of sellers and the amount of secondary raw materials sold are in great disproportion.

For example, according to the decision on the termination of the right to financial social assistance, Jovan from Kraljevo earned about 345,000 dinars in one quarter from the sale of secondary raw materials. For the sake of illustration, if we take into account the then purchase price of iron (which Jovan collects and sells), we can conclude that Jovan collected 11 and a half tons of iron in three months.

Jovan's example is just a generic overview of the situation that happened to dozens of people in the sense that the registered income is not at all in line with the average earning generated from performing this activity.

In some cases, during the purchase of secondary raw materials from a group of persons or residents of the same settlement, the payment is made only to a person provided with the ID document - some people lack personal documents, which is a problem that is still prevalent among some members of the Roma community, especially those who are the most vulnerable.

Despite the income from the sale of raw materials being shared among those who participated, the Social Card System still tracks the income as that of the person who provided the ID document and received the payment.

The automated register cannot analyse why a person would continue to live in a substandard settlement without adequate living conditions if he/she earns 175,000 dinars per month, it cannot answer the question of how it is possible that "generated" earnings can be proven only on the basis of a receipt that anyone could sign, and how the lack of personal documents can be the cause of a discrepancy between formal and factual income.

The answers to these questions can only and exclusively be found by humans, that is, social workers; therefore, Kraljevo is the first place to provide evidence of the devastating impact of the dehumanization of social work on those who need this type of social support the most.

The Law on Simplified Work Engagement on Seasonal Jobs in Certain Activities (Law on Seasonal Workers) unequivocally stipulates that income stemming from seasonal work shall not affect the entitlement to financial social assistance. The assumption was made when the Law on Seasonal Workers was adopted,that these jobs are performed sporadically, often poorly paid, and therefore cannot be considered as regular employment that an individual can engage in long-term and from which he/she can generate a steady income.

However, numerous centres for social work throughout Serbia simply ignored this provision and applied the Rulebook, which is inconsistent with the primary legislation. Therefore, a large number of beneficiaries' rights were unjustifiably revoked.

This problem took a new turn when the implementation of the Law on Social Card began. Namely, the Social Card classifies the income from seasonal work as income affecting entitlements to financial social assistance. Simply, if you were picking fruit, the Social Card system would report this to your social worker by sending a notification with a binding instruction to cancel your right to financial social assistance.

This could happen throughout Serbia and the social workers, due to the nature of the system established by the Law on Social Card, would not have the possibility to interpret such circumstances differently. With the introduction of the Law on Social Card, the aforementioned breach of the law became unison, indisputable, and structured. This revealed all the drawbacks of automated decision-making, which eliminates the potential for critical examination of the obtained information.

Petar, Marija, and Senka from Srpski Krstur, in the proximity of Kanjiža, in Vojvodina, were among the first ones to experience the consequences of such a practice. They were beneficiaries of financial social assistance and at the end of the summer, when they had the opportunity, they went to pick fruit.

Altogether, they worked 10 days for a daily rate of around 2,000 dinars. In December, they received the decision of the Centre for Social Work in Novi Kneževac reducing the amount of their financial social assistance by 80%, without being asked to provide any statement on the existence and kind of income leading to the reduction. On the advice of A 11 Initiative, Petar, Marija and Senka requested the Centre for Social Work to make sources of such information available to them, and they were given an extract from the Social Card System that qualified the above income as „income stemming from employment and work performed outside an employment relationship“.

In order to find out the origin of this income, they were referred to the Tax Administration and the National Employment Service, where they also failed to find out the reason. The final certificate from the Central Register of Compulsory Social Insurance (a document in which the origin of each income subject to mandatory contributions is recorded) showed that the origin of the income that led to the reduction of the amount of financial social assistance was their seasonal job.

Not only did this decision go against the law, but it also reversed the aim of social protection. Instead of providing an individual or family with the means to live independently, it entrenched a cycle of poverty. Fortunately for Petar, Marija and Senka, the second-instance authority accepted all the stated grounds of appeal and annulled the decisions that reduced the amount of their financial social assistance, although it did not take a position on the causes of non-compliance with the Law on Seasonal Workers, but only stated that the Law was violated.

We are pleased that after the appeal submitted by A 11 Initiative to the Ministry of Labour, Employment, Veterans and Social Affairs indicating the violation of the Law on Seasonal Workers, the minister amended the Rulebook on Forms Used in the Procedure for Exercising the Right to Financial Social Assistance de facto removing this type of income from those relevant for exercising the right to financial social assistance.

Although this act removed the possibility of further violations of the Law on Seasonal Workers, it represents only one of a number of negative implications of automated decision-making, which still persist.

Zagorka is a single mother of a preschool boy. In addition to receiving financial social assistance, she occasionally works as a hygienist or as a tourist guide. She worked as a tourist guide for 8 days in total in August and September last year earning 1,500 dinars a day. In order to be eligible to claim financial social assistance, the decision is based on the income generated over the 3 months prior to the decision-making; her monthly average income was about 4,000 dinars, while the monthly amount of financial social assistance for a two-member, single-parent family was about 17,000 dinars. One day, Zagorka was called by a social worker and informed that she would completely lose her right due to her income, that is, the amount will not be reduced but cancelled.

At the Centre for Social Work, she informed the social worker that she had worked for 8 days over the three months and provided the contract with a travel agency as evidence. Unfortunately, the social worker chose to ignore the evidence and showed an indifferent attitude; the social worker also informed Zagorka that she had extracted data from the Social Card System showing that the income was much higher: 45,707.24 dinars in August, 29,181.03 in September and 36,419.00 dinars in October.

Although the certificate from the Central Register of Mandatory Social Insurance - a document in which the origin of each income subject to mandatory contributions is recorded - proves the actual figures, Zagorka did not appeal because she had been told that, until that appeal was decided, (and it can take as long as 6 months) she did not have the right to submit a new application in order to obtain financial social assistance.

This practice is contrary to the law because the amount of income is calculated over the period of three months prior to the filing of the applications, and there are no obstacles to the filing of the appeal and submitting the new application, in parallel - a different period of time is estimated.

The opinion received by A 11 Initiative from the Ministry of Labour, Employment, Veterans and Social Affairs supports the statement. Zagorka has not exercised her right to have the decision reviewed. The beneficiaries cannot afford 6 months (in practice, the period for the decision on the appeal) without receiving financial social assistance, and therefore between material existence and justice, they choose the former.

Another way of calculating income by the Social Card System that violates the Law is illustrated by the case of Vera, who, in addition to exercising the right to financial social assistance, is also the beneficiary of a social apartment in Belgrade.

Given that the concept of social housing, despite its name and primary role, is unaffordable and unsustainable in Belgrade due to extremely high housing costs, it often happens that users of these apartments fall into large debts.

Due to the difficulty of paying all the utility costs on time, which can reach up to 20,000 dinars per month, these tenants are frequently in a predicament where they must choose between paying their bills and attending to their essential needs.

If we take into account that financial social assistance amounts to 11,122 dinars per person, and that in these households there are typically ill people who require consistent medical care, the situation becomes more complicated. In extreme cases, beneficiaries of social housing may face homelessness due to their inability to pay bills and rent in a timely manner, and therefore, eviction proceedings may be taken against them.

The above problems are affecting Vera and her family because her household accumulated significant debts due to the aforementioned reasons. The mediation process, in which Vera’s and several other families participated regarding other matters, resulted in covering all debts caused by unaffordable housing, so that they would not be at risk of becoming homeless.

Paid arrears were considered in this case as income by the Social Card System. Therefore, Vera was warned that she could lose her right to financial social assistance. Although the social workers asked for the details of this "income", from which it could be seen that there was no income involved, Vera was not permitted to state that this was not a factual situation and that she not only did not work or earn, but she was also not responsible for the situation.

The staff of the Centre for Social Work complied with provisions of the Law on Social Card – taking into account data from the Social Card Register exclusively – defining the above income as income from temporary and casual employment. To make things even worse, on the same occasion proceeds allocated to cover the funeral costs of Vera’s daughter who had passed away a couple of months earlier, were calculated as “income”.

Since the Centre for Social Work failed to provide any support at the time, which is one of the main roles of this body, she turned to A 11 Initiative for help. In both of these cases, amounts paid to Vera for completely different purposes were classified as income, therefore violating the law, and preventing her from exercising her right to financial social assistance leaving the entire family without any income.

There are also examples that clearly indicate that the Social Card Register is not set in accordance with the Law on Social Protection. The Law on Social Protection defines the land area that an individual owns as the criteriafor the use of social assistance. Therefore, an able-bodied individual may own up to 0.5 hectares, or up to 1 hectare if a person is incapable of work in order to exercise this right.

However, the Guidance for Aapplication of the Social Card provided to all social workers, includes absolute rights (property rights in particular) as well as inheritance and gifts in the category of irregular income, with the market value being used to assess this category.

For illustrative purposes, if you own 0.1 hectare of land (less than required by the legal census), its market value set by the Tax Administration will be considered as your income and you will therefore lose your right to financial social assistance. Therefore, in this respect, the Social Card fundamentally contradicts the Law on Social Protection, and its implementation leads to a direct violation of this regulation.

Elvira lives in a Roma settlement in Belgrade and her loss of the right to financial social assistance represents an obvious example of the described anomaly in the system. Namely, Elvira is seriously ill and has been diagnosed with a disability and is unable to work. In addition to financial social assistance, she also receives allowance for assistance and care of another person. Considering that she cannot work, financial social benefits represent her only income and therefore precondition of her livelihood.

In November 2022, Elvira was notified of the termination of financial social assistance, and the reason was stated to be inheritance income in the amount of 1,066,656 dinars. After the engagement of A 11 Initiative, it was found out that Elvira inherited land covering an area of 333.33 m2, the market value of which was stated in the decision on termination of the right. Therefore, even though the Law on Social Protection prescribes that the threshold is 10,000 m2 she lost the right since the Social Card expressed the land ownership in market value and not in square footage, hence violating the Law.

The second-instance authority overturned this decision after the appeal, but again without entering into the interpretation of the essential cause (incorrectly set concept of income in the Social Card), but focused exclusively on the violation of procedural and material norms. The inflexibility and callousness of the Law on Social Protection is highlighted by the rule that someone with movable property worth more than six times the amount of social assistance (about 600 euros) is not eligible for the assistance, which is also reflected in the way of determining whether someone owns a car.

Let's say you had a car manufactured in 1980 and you drove it until 2013 when you last registered it. Following unsuccessful attempts to put it on the market, the car ended up in the scrapyard and you were paid for the scrap metal, but not provided with any document as proof. The Tax Administration affirms that you were the last to pay the tax on the transfer of absolute rights - thus, you are still regarded as the legal and formal proprietor of the car.

This type of legal and bureaucratic illogicality has so far been circumvented through field visits and direct communication with rights beneficiaries. Social workers, who used their discretionary right to a certain extent and "soft" provisions of the Law on Social Protection, understood real-life situations and agreed to the continued exercise of rights in the similar situations. The conditions for the exercise of this right were located in the general socio-economic situation of the person who receives financial social assistance.

The implementation of the Social Card Law has resulted in the end of the practice described. The social card prevents the above actions, and if information arrives from the Tax Administration that a person "owns" a car, the notification simply instructs the social worker to terminate the beneficiary's right.

This is usually done without including those concerned in the proceedings of the centres for social work and without giving their unique situations any consideration, despite the fact that such situations may differ from the information in the Social Card.

Therefore, in April 2022, A 11 Initiative submitted an Initiative for the constitutional review of the Social Card Law to the Constitutional Court. The Law on Social Card contradicts the provisions of the Convention of the Council of Europe for the Protection of Individuals with regard to Automatic Processing of Personal Data. The provision of this article of the Law stipulates that, based on the algorithm that automatically checks the fulfilment of the conditions for exercising the right to social assistance, social protection institutions are only notified that it is necessary to take certain actions regarding the rights of the person whose personal data are contained in the Social Card.

As mentioned, contrary to the guarantees referred to in Article 9 of the Convention of the Council of Europe, beneficiaries of the social protection system are prevented from having their views taken into account in relation to this automated processing of personal data. The Law on Social Card also contradicts Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms as well as Article 9 of the International Covenant on Economic, Social and Cultural Rights, which guarantees the right to social security. More details on this topic can be found in the Initiative for the constitutional review of the Law on Social Card.

In November 2022, several members of ESCR-Net, International Network for Economic, Social and Cultural Rights, among which Amnesty International, Centro de Estudios de Derecho, Justicia y Sociedad (Dejusticia), Digital Welfare State & Human Rights Project (DWS Project) based at the Centre for Human Rights & Global Justice at New York University School of Law, European Roma Rights Centre (ERRC), Initiative for Social and Economic Rights (ISER), Kenya Human Rights Commission (KHRC) and Program on Human Rights and the Global Economy (PHRGE) at Northeastern University, submitted the joint legal opinion to the Constitutional Court of Serbia regarding the Initiative for constitutional review of the Law on Social Card stressing the key human rights issues that arise from the application of this Law.