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Suspected discrimination in the payment of social assistance (TAS 302/2016, issued on 12 January 2017)

Suspected discrimination in the payment of social assistance (TAS 302/2016, issued on 12 January 2017)

In an enquiry received by the Ombudsman for Equality, the Ombudsman was informed that when a person who is married or cohabits with a partner contacts the social welfare office regarding social assistance in the City of X, the appointment is made using the man’s name even if the caller is a woman. Also, the decision on social assistance is always made using the man’s name. Because of the enquiry, the Ombudsman for Equality itself undertook to investigate the matter.

Under section 4 of the Act on Equality between Women and Men (Equality Act 609/1986), the authorities must in all their activities promote equality between women and men purposefully and systematically and create and consolidate administrative and operating practices that ensure the advancement of equality between women and men in the preparatory work undertaken on different matters and in decision-making. In particular, circumstances which prevent the attainment of gender equality must be changed. The same provision also states that the promotion of equality between women and men must be taken into account in the availability and supply of services in the manner referred to above.

The prohibition of discrimination in the Equality Act applies to all activities in society and all areas of life that have not specifically been excluded from the areas of application of the act. It applies e.g. to the actions of the authorities in decision-making concerning social benefits.

According to the report submitted to the Ombudsman for Equality, appointments for spouses or cohabiting partners can be made in the appointment system using either the woman’s or the man’s name. According to the report, the decision can also be made under either the woman’s or the man’s name, but because the programme is not capable of combining calculations made using names of different persons, decisions should always be recorded under the same name. For the sake of clarity, a decision has been made to always record decisions under the man’s name.

The decision can be sent to either of the spouses and it is as a rule issued and sent to the person that submitted the application or had the appointment at the social welfare office. Social assistance is paid to the bank account given to the social worker by the client, which means it can be paid to either of the spouses or, if they wish, to a third party.

The Ombudsman for Equality has discussed the procedure followed by municipalities in matters related to social assistance in its previous statements (e.g. TAS 275/06). Deputy Parliamentary Ombudsman Maija Sakslin also issued a decision regarding decisions on social assistance in 2011 (Dnro 557/4/11). The Deputy Parliamentary Ombudsman states in her decision, for example that, like in all other social welfare decisions concerning individual persons, the person recorded as the applicant must be the person who has in reality applied for the service or social assistance. The fact that social assistance is determined on the basis of the family members’ incomes, expenses and assets does not give the authority the right to make the decision using the name of the head of the family it chooses, when the applicant is another member of the family. The Deputy Parliamentary Ombudsman stated that the practice in which the client status in reality depends on the gender of the applicant is in violation of the Equality Act.

Under section 21 of the Constitution of Finland (731/1999), the principles of good governance include the right guaranteed for everyone to have his or her case dealt with appropriately as well as to have a reasoned decision. Under section 54 of the Administrative Procedure Act (434/2003), an authority shall without delay serve its decision on a party and on other known persons who have standing to appeal against it or seek its rectification. Under the Social Welfare Act (1301/2014), a person who is not satisfied with a decision may make a claim for a revision of a decision on social assistance to the municipal decision-making body responsible for social welfare as provided in the Administrative Procedure Act. Instructions for how the matter can be brought before the body in question must be included in the decision. Under the Social Welfare Act, an appeal against the decision issued by the municipal decision-making body may be made to an administrative court.

Under section 10 of the Constitution of Finland, the secrecy of correspondence, telephony and other confidential communications is inviolable. Chapter 38(3) of the Criminal Code of Finland (39/1889) prohibits unlawfully opening a letter or another closed communication addressed to another. If the decision on social assistance is not addressed to the person who submitted the application, this person does not have the right to open the letter containing the decision that has been posted to another person. Although the women who have submitted the application are considered a party to the appeal, if the decision on assistance is sent to the man, the women lose the right of a party to be informed of the decision secured to them by the Constitution of Finland, the Administrative Procedure Act and the Social Welfare Act. The procedure concerned weakens women’s actual possibilities to appeal against a decision and therefore puts women into a less favourable position compared to men. Such a procedure conflicts with the prohibition of discrimination in section 7 of the Equality act.

In 1991, the Ministry of Social Affairs and Health already issued a letter (no 282/02/91) that states e.g. the following: “The Ministry has also been informed of the fact that some municipalities may have delivered the decision on social assistance to the husband/common-law husband although the applicant has been the wife/common-law wife. The Ministry states that such a procedure is not appropriate, and the decisions must always be given to the applicant, unless there are special reasons to the contrary. Such a reason could be e.g. use of an attorney, legal incompetence of the applicant or some other similar reason.”

Because an individual cannot use the bank account of another person unless this has been separately agreed on, the decision on to whom the social assistance is paid plays an important role in practice. Equal treatment of men and women requires gender neutrality of the payment practice in a manner that ensures women and men are treated according to the same criteria. Therefore, social assistance must always be paid to the spouse who has applied for the assistance, unless the account number submitted in the application is the account number of the other spouse.

According to the report submitted to the Ombudsman for Equality, the Pro Consona client data system is not capable of combining calculations made using names of different persons, for which reason they must always be made using the same name. A decision has therefore been made to record decisions concerning married or cohabiting couples under the man’s name. According to the impression of the Ombudsman for Equality, this in-built feature of the information system does not have an effect on who is recorded as the applicant for the assistance, who is recorded as the recipient of the decision, who the decision is sent to or to whose account the assistance is paid. However, the Ombudsman for Equality concluded that recording decisions under the man’s name strengthens unequal gender roles. Therefore, the procedure would be fully gender neutral if decisions were recorded under the name of the person submitting the first application, whether that be the man or the woman, or under a name or a number describing the family.

The Ombudsman for Equality urged municipality X to change the procedure it follows in matters related to social assistance so that the decision is always made and sent using the name of the applicant and the assistance is always paid to the applicant’s account unless the decision separately mentions to which account the money is paid, and to notify the Ombudsman for Equality when the practice consistently and fully corresponds with the practices that have been considered lawful in this statement.

 

20.02.2017