Pubblicato online: 19 giu 2021
Pagine: 61 - 71
DOI: https://doi.org/10.2478/wrlae-2020-0005
Parole chiave
© 2020 Ewa Żołnierczyk, published by Sciendo
This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License.
New tasks are constantly being set for contemporary Polish social assistance. The purpose of activities launched as part of broadly understood social assistance is to support individuals and families in overcoming a difficult life situation, help in becoming independent in life and creating living conditions corresponding to human dignity. Social assistance is also determined by the creation of a network of social services, assistance in integration with the environment of socially excluded people, as well as providing professional assistance to families affected by pathology, associated with, for example, alcoholism or drug addiction. On the one hand, social assistance is to support, in a rational way, dependent on legal regulations, to grant benefits to persons without income or with low income, of post-working age or people with disabilities; on the other hand, this support must comply with legal rules and in all those cases where these rules violate, be sanctioned. It is difficult to apply penalties in conditions where support centres are required to provide assistance to social assistance centres and other assistance institutions. The application of sanctions is almost always accompanied by negative social overtones, even when it finds strong legitimacy in the law, especially taking into account the often claiming attitudes of social assistance beneficiaries. The goal of the research is to analyse selected sanctions in the social assistance law. The author based his conclusion on an extensive source material in the form of decisions of administrative courts and presented the views of selected representatives of the doctrine. The institution of sanctions applied in the social welfare law raises a lot of controversy, because the goal of social welfare is support, not punishment. On the one hand, imposing sanctions is a last resort under the welfare regulations, but on the other hand, it is also an indispensable element of the effectiveness and efficiency of activities launched as part of social assistance
More about subject of administrative sanctions: Mirosław Wincenciak,
In accordance with art. 11 of the Act on social assistance, if a social worker finds a waste of benefits granted, their deliberate destruction or use in an unintended manner, or a waste of own financial resources, there may be a reduction in benefits, refusal to grant them or the granting of non-cash assistance. Paragraph 2 indicates that the lack of cooperation of a person or family with a social worker or family assistant, (...) refusal to conclude a social contract, failure to comply with its provisions, unjustified refusal to take up employment, other gainful work by an unemployed person or unjustified refusal to take up or interrupt training, internship, vocational training in the workplace, performing intervention works, public works, socially useful works, as well as refusal or discontinuation of participation in activities in the field of social integration implemented under the Activation and Integration Program (...) or unjustified refusal to take addiction treatment in an addiction treatment facility by an addicted person, they may constitute grounds for limiting the amount or size of the benefit, refusing the benefit, repealing the decision to grant the benefit or withholding cash benefits from social assistance. Norm of art. 11 of the Act on social assistance indicates that in the event of refusal to grant a benefit or limitation of the amount or size of benefits from social assistance, the situation of dependents of a person applying for a benefit or benefiting from benefits should be taken into account.
The provision of art. 11 of the Act on social assistance indicates the possibility of applying sanctions in the event of negative behaviour of beneficiaries. These behaviours include the widely understood waste of services. The cardinal task of social assistance is support, but it must take place in conditions of cooperation between beneficiaries with assistance units and social assistance employees
Iwona Sierpowska,
Therefore, if the principles and conditions of this cooperation are not respected by the beneficiaries, a legal tool is created to apply sanctions. These sanctions include the limitation of benefits, refusal to grant benefits, annulment of the decision to grant benefits, suspension of cash benefits or the award of non-cash benefits.
The provision of art. 11 refers to waste, which is primarily the passive or claim attitude of the beneficiary. Social assistance is determined by the pursuit of the recipient's independence. Assistance should be provided to the extent necessary for the individual case. Where there is no cooperation between the parties, there can be no place for effective actions in the area of social assistance, and where these actions have been launched, they must be modified (it must be possible to impose sanctions).
As indicated by the Provincial Administrative Court in Gliwice in a judgement of 12 December 2019, ‘the refusal of the party's consent to carry out a community interview and the circumstances (behavior of the party) in which this happened, undoubtedly indicate the lack of cooperation of the party with the social worker in meaning of art. 11 para. 1 of the Act on social assistance, however, pursuant to this provision, such an attitude of a party does not oblige the authority to issue a negative decision, but can only constitute a basis for ruling this content’
Rufus Frąckowiak et al.,
From the standard of art. 11 uops shows the possibility for the social welfare body to apply various sanctions, among which, in the author's opinion, it is difficult to apply the theory of penalty gradation. Each one can be painful for the party. When imposing a penalty, one should be guided by the goal of social assistance, and the basic one is to enable individuals and families to overcome difficult life situations that they are unable to overcome using their own rights, resources and opportunities. Social assistance is to support in this effort, not to do it. It should be borne in mind that social assistance should not be burdened with the obligation of support in a situation where the beneficiary himself does not make the effort to resolve the difficult life situation in which he finds himself
More on the consequences of refusing social contact see Lidia Zacharko et al., Sierpowska (n 3) 108
It seems important to properly inform the party about the effects of a lack of cooperation already in the initial stage of consideration of a case, even before conducting a family environmental interview, which is the basic evidence in social assistance matters. Determining the personal situation and financial status is crucial for the possibility of positive consideration of an application for assistance, hence making it impossible to carry out an community interview (refusal to carry out, refusal to answer individual questions, failure to submit documents required by the authority, for example regarding health, unemployment or the degree of disability) may be considered as a lack of interaction between a person or family and a social worker, which in turn translates into the possibility of issuing a decision refusing to grant the requested benefit
In accordance with art. 13 sec. 3, persons being detained are suspended from their right to social assistance benefits. No benefits are granted for pre-trial detention. The suspension of social assistance benefits for a detained person is another example of a sanction that is obligatorily applied when there is a condition of temporary detention of a beneficiary. Given the cardinal goals of social assistance, which are to help individuals and families overcome a difficult life situation that they cannot overcome using their own resources and opportunities, and to meet the necessary living needs, it is reasonable to suspend the right to benefits for a detainee, who for the duration of his arrest is not in fact forced to take care of his life, health and accommodation, because he is assured of existence at a basic level
Ł.
The idea of pre-trial detention is to isolate the detainee in order to secure the correct course of criminal proceedings. Obtaining the status of a detained person is associated with a significant limitation of his rights. If so, it is also justified to suspend the detainee's right to social assistance benefits. This regulation must be positively assessed, because the detainee gets to the detention centre gains the subsistence minimum and assistance measures provided by the social assistance centre prove to be unnecessary. This solution is also desirable from the point of view of securing the interests of other beneficiaries of social assistance and is in line with the principle of balancing the legitimate individual interest with the general interest. In addition, the provision extends broadly to the possibility of suspension, which is about suspension of all benefits, both tangible and intangible
An example of another sanction applied on the basis of the provisions of the Act on social assistance, not aimed directly at the beneficiary, but in relation to the entity to which the permit to operate a social assistance home has been issued. This sanction is based on art. 57a of the Act on social assistance, pursuant to which the voivode withdraws the permission to run a social welfare home, if a given entity ceased to meet the conditions set out in the Act on social assistance, ceased to meet the standards referred to in art. 55 item 1 and 2 of the Act on social assistance (i.e. the lack of standards in the scope and forms resulting from the individual needs of the residents of a social welfare home, as well as the organization of a social welfare home and the level of services provided without taking into account, in particular, the freedom, privacy, dignity and sense of security of the resident and his physical and mental fitness), as well as if the entity fails to present, at the request of the voivode, current documents, statements or information referred to in art. 57 sec. 3b of the Act on social assistance
The application for permission to run a social welfare home should be accompanied by: copies of the document confirming the legal title to the property on which the home is located, documents confirming the fulfillment of the requirements set out in separate regulations, the organizational regulations of the social welfare home or its project, and in the case of entities listed in art. 57 section 1 points 1–4 are, among others documents from the National Court Register, the Central Register and Information on Economic Activity, information on the method of home financing, a certificate or statement of non-arrears in the payment of social security contributions and taxes.
The purpose of applying the sanctions under art. 57a, it is possible to withdraw the permission to run a social welfare home when the entity that runs the home no longer meets the conditions and standards set out in the Social Welfare Act. This is extremely important because the services offered as part of a stay in a social care home are mostly addressed to the elderly, infirm, who must be provided with proper living conditions, which are subject to constant monitoring. One should also consider regulation of art. 129 sec. 1 of the Act on social assistance, which concerns the non-implementation of post-inspection recommendations, also resulting in withdrawal of authorization. However, the post-inspection recommendation referred to in art. 128 sec. 1 is institutionally directed to a nursing home, while the call under art. 57a is addressed to the entity operating the facility
Wojciech Maciejko and Paweł Zaborniak, Sierpowska (n 3) 224.
The provisions of the Act on social assistance also provide for a sanction in the form of the return of benefits unduly collected. This is a sanction derived from art. 98 of the act on social assistance. An unduly collected benefit is a cash benefit obtained on the basis of false information or failure to inform about a change in material or personal circumstances (art. 6). The benefit unduly collected applies only to cash benefits. From the standard of art. 6 it is shown that the situation of an unduly collected benefit occurs when the recipient has received the benefit on the basis of false information or when he has not informed about a change in his material or personal situation. These are two different, alternative premises that can be used separately. Interpretation difficulties arise in determining what constitutes false information. In the absence of a statutory definition, it should be assumed that this is all information that does not correspond to actual findings or states. According to T. Krajewski, this is both information that the site is provided to the body consciously and unconsciously
Tomasz Krajewski,
There are two views regarding the statement of a benefit unduly collected in the literature on the subject. Pursuant to the first issue of a decision to return an unduly collected benefit, it is preceded by a decision to revoke or amend the decision granting the benefit (Article 106 (5) of the Social Assistance Act). The jurisprudence of administrative courts indicates that as long as the decision on granting the benefit is not effectively revoked, there are no grounds for demanding a refund. According to the second view, the procedure for determining the amount wrongly collected is a separate procedure from the procedure for the verification of the decision to grant a benefit, so it is not necessary to previously revoke or amend the decision awarding the benefit
Cf Krajewski (n 15) 185
Confirmation of an unduly collected benefit is made by means of an administrative decision. This decision is constitutive, with the proviso that its effects go back, i.e. to the date of the reasons justifying the request for reimbursement
Stanisław Nitecki, Renata Babińska-Górecka and Monika Lewandowicz-Machnikowska,
The provisions of the Act on assistance provide for the possibility of evading the effects of the application of sanctions in the form of a request for reimbursement for benefits unduly collected. Based on art. 104 cl. 4, in particularly justified cases, especially if the demand for reimbursement of expenses for the benefit rendered, due to fees specified in the Act and for unduly collected benefits in whole or in part, would constitute an excessive burden for the obligated person or would destroy the effects of the assistance provided, then the authority that issued the decision on the reimbursement of benefits unduly collected, at the request of a social worker or the person concerned, may refrain from requesting such reimbursement, cancel the amount of unduly collected benefits in whole or in part, defer payment or divide the repayment into installments.
The decision based on art. 104 cl. 4 is a discretionary decision. Not every case will be a particularly justified case. The role of the authority is to thoroughly examine whether, in a given specific state of affairs, there is a possibility of either waiving the application of sanctions or applying mechanisms mitigating the penalty applied. ‘The purpose of art. 104 clause 4 is the protection of a person obliged to reimburse the benefits received, which in turn relates to the 100 paragraph 1, the principle of being guided by the welfare of persons using it in proceedings regarding social assistance benefits. The issuing of a decision on the return of benefits unduly collected from social assistance must precede the explanatory proceedings in relation to the current life, family and material situation of the obligated person in terms of the possibility of using the benefits provided for in art. 104 clause 4 of the act’
R.M v E.J v Judgement of provincial Administrative Court in Szczecin [04 July 2017] I OSK 1116/16 (Supreme Administrative Court in Warsaw) Legalis.
On the one hand, the application of sanctions in the Polish social assistance law, especially those addressed directly to recipients, should be the last resort; on the other hand, the inability to apply them would lead to widespread distribution of taxpayers’ money. Support offered as part of state aid activities is necessary and is part of the legislation of each country, but must be provided rationally, in compliance with legal provisions, in a balanced way. It should reach people who cannot actually overcome their own weaknesses or solve life problems using their own potential. The system must be constructed in such a way that in the absence of cooperation, waste of resources, failure to take up employment, drug treatment, etc., sanctions could be applied. In social thinking about social assistance, the approach should change from claims to active cooperation with aid bodies, the lack of which may result in the application of sanctions.