6. A new legal context for social services in Spain
The chapter discusses how a national law on social services could improve the supply and accessibility of social services. The first part elaborates how the law can advance the coverage of subjective rights, ensure that citizens can claim these rights, and facilitate the transferability of rights when moving from one Autonomous Community to another. The second part discusses how to improve the co-operation between levels of government following the establishment of a national law.
The distribution of competences and the financing of social services contributes to variations in the provision of, and access to, social services across Spain. As discussed in Chapter 5, local bodies are responsible for providing primary services and for funding a variable, but significant, share of those services. The autonomous communities provide and fund specialised social services. In contrast, the central government’s financial contribution through the Concerted Plan is relatively low. The decentralisation of expenditure and revenue, combined with differing needs related to, for example, levels of urbanisation and population structure, lead to inequalities in the ability to fund and provide adequate services. These differences can cause disparities in the offer of services and conditions to access to services for users in different regions.
A series of reforms detailed in Chapters 6 to 9 of this report would help to reduce disparities in the supply of, and level of access to, social services. In particular, although responsibility for social services still lies with the autonomous communities, a new national law should be the first element in the process of reform in order to contribute to better protection throughout the country by establishing basic conditions for services across Spain. The enactment of such national law, as well as other subsequent possible changes outlined in the rest of the report, will also require a process of dialogue and for co-operation to be strengthened between the different levels of government, given the decentralised nature of social services.
As mentioned in Chapter 2, under Article 148. 1.20 of the Constitution, competence for social assistance lies with the autonomous communities, and the possibility of national legislation is therefore limited. However, constitutional case law has established that the central government may address general social issues that require a comprehensive approach in cases of inequality by creating social programmes or benefits. The central government may also establish and fund its own benefits for matters that logically require regulation at the national level. Such circumstances may arise mainly in relation to problems that occur across autonomous communities or when it is necessary to provide assistance to people across a geographic area that exceeds the boundaries of one autonomous community. In this sense, the presence of disparities in social services may serve as motivation to adopt measures to move towards guaranteed minimum protection.
A national law in the area of social services must be formulated in a way that respects the autonomous communities’ competence with respect to social assistance. The Constitution permits at least two different types of legislative intervention by the central government: a law on harmonisation and a law on basic conditions. Of these two types of law, a law on basic conditions guaranteeing equality in the exercise of social rights seems more feasible from a constitutional standpoint. A law on harmonisation may be adopted when the variation in regulations clearly harms the general interest. Such harm would be difficult to prove, and the process would require an absolute majority in Parliament. A law on basic conditions guaranteeing equality would be based on Article 149.1.1 of the Spanish Constitution. This article grants the central government competence to establish the basic conditions guaranteeing the equality of all Spaniards in the exercise of their rights. For effective implementation, the law should be developed with the co-operation and participation of all public administrations to reach consensus on the shared minimum level of rights throughout the entire country.
6.1.1. Defining the minimum social services across the country
The most important element of the law would include the thematic areas of the social services catalogue to be agreed as the new minimum services at the national level. Either this definition of the areas could constitute a list of shortcomings or state areas in which there will be minimum services or rights. Las Heras proposes an exhaustive list of situations of social need that could provide inspiration for the law (Las Heras, 2019[1]):
basic needs: social urgency and emergencies; poor access to basic social resources; homelessness
family: risk factors and/or family breakdown; family vulnerability, neglect and/or child abandonment; situations requiring guardianship; single-parent families with dependent minors or adults; domestic abuse or gender-based violence
vulnerability: social isolation; risk of exclusion; drug addiction; exile or immigration.
As it will be challenging to include all services and benefits for the minimum catalogue and such services are likely to change over time, a possible option is to specify that the Territorial Council on Social Services (hereafter named the Council) will establish this. Even so, the preparation of a minimum catalogue would require the creation of channels for co-operation, likely through a working group involving all autonomous communities, the cities of Ceuta and Melilla and, possibly, the Spanish Federation of Municipalities and Provinces. To this end, the law could draw inspiration from the Long-term Care Act and entrust the Council with agreeing on a framework for inter-administrative co-operation; defining the minimum catalogue of social rights and benefits; agreeing on scales and needs assessments, concession requirements and benefit amounts; adopting common criteria for action and evaluation of the system; facilitating the provision of common documents, data and statistics; and other tasks that allow the system to be subsequently deployed through the relevant agreements with the autonomous communities. All social services councillors from the autonomous communities and a central government’s representative are currently involved in the Council’s operations.
It would be important for the law to establish the obligation to share information on benefits and services across different levels of governments. Likewise, the law may propose an information system established by the Ministry of Social Rights and the 2030 Agenda that guarantees the availability of information and two-way communication between public authorities, as well as compatibility and co-ordination between the different systems. To this end, the Council will agree on the objectives and content of the information. The law may also require the system to provide information on the catalogue of services and incorporate a range of essential data.
6.1.2. Making progress in the coverage of subjective rights and their enforceability
Currently rights to social services are effectively enforceable only in accordance with the requirements and conditions set out in each legislation. Because regional legislations state that rights will be enforceable under the terms established in the portfolio or catalogue of services and only seven autonomous communities have an official catalogue or portfolio of services,1 this limits the possibility of claiming and enforcing these rights for citizens.
Converting minimum services and benefits into effective and legally binding rights. A national law on basic conditions would be an improvement for the effectiveness of rights. While it is true that the law does not create rights directly, the national law can itself create subjective rights by establishing standard basic conditions that ensure a minimum level of equality throughout the country.
This right may be directly enforceable before the courts, although it will be defined in the terms established by each autonomous community. Thus, for example, the national law on minimum social services may declare that all Spaniards, regardless of their place of residence, are entitled to benefits guaranteeing access to housing should they suffer gender-based violence. A survivor of gender-based violence who is denied access to housing outright in his or her autonomous community may claim that right in court.
It is important that the national law, and any consequent amendments to regional legislation, recognises and guarantees the right to the benefits that the system offers to all people who require them, without any form of discrimination or limitation. Under current regulations, registration and/or residence in a particular autonomous community is required for access to benefits or services, resulting in a loss of rights for people registered in other autonomous communities. Furthermore, in many cases, a minimum length of registration and/or residence in the respective autonomous community is required, which also limits people who may apply. Proof of identity should be sufficient.
Codifying this right in autonomous communities’ portfolios or catalogues of social services or centrally funded services
Currently, each autonomous community can decide (by itself or on the basis of an agreement of the Council) the way in which that benefit is provided, for example through financial assistance, access to public housing or access to privately managed supervised housing. The right created by the state law ensures that autonomous communities must provide the benefit, but does not determine how they may do so. A different case would be if the law instead provided for the minimum catalogue of social services to be funded entirely by the central government’s general administration, defining the relevant economic resources annually in the Act on the General State Budget. If, as in the case of the Long-term care Act, the central government fully funds certain benefits, it may create them as state benefits, regulating them closely and leaving only their management to the autonomous communities. If that option were chosen, the benefits included therein would be directly claimable by citizens under the same terms. In the absence of centrally-funded benefits and services, it would be important to still promote the adoption of regional portfolios or catalogues for clarity on the availability of services related to rights.
6.1.3. Improving the transferability of rights for individuals moving between autonomous communities
Most autonomous communities do not have formal mechanisms for co-ordination with other communities, and each has its own social services legislation. This lack of co-ordination among autonomous communities interrupts continuity of care and support when users move to another autonomous community, since most communities’ laws on social services do not address situations beyond their geographic areas of responsibility or cases in which citizens require interventions involving different communities (Casado, 2007[2]). When a citizen moves to another autonomous community, he or she must initiate all the procedures necessary to obtain resources while also bearing in mind that most communities require residents to have been registered there for a set length of time before receiving certain services.
The future law by stipulating the universal rights of Spaniards (and possibly foreign residents) will help guarantee the transferability of rights to certain services when a person moves to a different autonomous community. Such a law assumes that people will have the right – regardless of where they reside in Spanish territory and under equal conditions – to the benefits and services provided for in the law, under the terms established therein.
Nevertheless, central and autonomous government authorities would need to reach an agreement on the modalities for transferring benefits and services in the event of a change of residence. They could draw inspiration from Denmark or Germany, where the government of the place of origin is responsible for payments until a person has been processed in the new location. In the case of Denmark, this obligation is set out in an amendment to social services legislation (Consolidation Act on Social Services No. 102 of 29 January 2018, 96 (b)). The authorities in the place of origin are entitled to be reimbursed for these expenses once the move has been processed. Similarly, in Germany, the location responsible for child protection services retains responsibility for providing the service or benefit until the new local authority assumes that responsibility. The original location must transfer the data required to expedite the processes (German Social Code, Book VIII, 4.1, §86.c).
Another option to consider is the one used in Sweden and Finland, where a person may begin the process and request services in their destination before moving. The destination authorities must treat the person as a resident, and the place of origin is required to transmit the applicant’s records (Swedish Social Services Act SFS 2001:453, Chapter 2, Section 3; Finnish Social Welfare Act 1982, Section 16 (a) (1378/2010)).
A common understanding of citizens’ minimum rights in terms of social services and the transferability of rights in the event of a change of autonomous community requires co-operation among the authorities in different autonomous communities and, where appropriate, at the national level. Fruitful co-operation can, for example, create spaces for the exchange of best practices both in and outside Spain and to agree on the classifications to be used in the different information systems.
Everything related to aspects of the state law will fall within the purview of the Council, and exchanges could take place at Council meetings. Even those meetings could benefit from a broader structure geared towards co-operation, and other exchanges between autonomous communities and between the communities and the central government could be more adequately addressed in other forums. Most autonomous communities currently lack formal mechanisms for co-ordination with other communities, with the exception of the Ministry’s working groups and RESOE – a body facilitating co-operation between Asturias, Cantabria, Castile-León and Galicia, as well as northern and central Portugal, and which lacks funding – as well as informal and occasional co-operation. Under Article 145 (2) of the Constitution, agreements between autonomous communities require the approval of Parliament.
Similarly, when it comes to primary services, co-operation between different local bodies and between the autonomous communities, local and national levels could be beneficial. Mechanisms for co-ordination within autonomous communities are organised in different ways. With the exception of Catalonia, there are no forums for horizontal, inter-municipal co-operation and exchange in addition to the forums for vertical co-operation between the autonomous community and local levels. With regard to co-operation with the autonomous community and central government levels, the Spanish Federation of Municipalities and Provinces represent local bodies on the Council.
Establish rules for regular meetings. A failure to regulate the frequency of meetings of the Council or other co-operation forums may render the forum less relevant or obsolete. The establishment of a minimum frequency of meetings can help.
Consider decisions by a qualified majority. Currently, the Council’s decisions generally require unanimity. Given that the autonomous communities may have diverging interests, this may cripple the Council’s ability to make decisions. However, decisions by simple majority may mean that some communities’ positions are systematically invalidated if their views go against the majority. The new law could define the Council’s composition and determine whether decisions relating to social services outside the Autonomy and Care System for Dependent People may be taken by means of a qualified majority rather than consensus and whether agreements must be published in the form of government decrees. One option would be to establish a relatively high threshold for a qualified majority that nevertheless remains below 100% of the votes.
Support the Council’s work with adequate resources. The preparation of the Council’s meetings requires adequate resources, for example to periodically analyse the status of service provision or to discuss the need to increase the minimum catalogue of services and redefine a new catalogue. However, some of these preparations may be undertaken by the Ministry of Social Rights and the 2030 Agenda and by the competent regional authorities. Additionally, the Council could be granted its own human resources to facilitate its work. For example, the German Standing Conference of Ministers of Education and Cultural Affairs, which co-ordinates education policy among the regions (Länder), has a secretariat of some 200 employees. A standing scientific commission comprising 16 academics from different disciplines that provides scientific guidance to identify challenges and propose evidence-based solutions also supports the conference’s work.
References
[2] Casado, D. (2007), Perfeccionamiento de los Servicios Sociales en España.
[1] Las Heras, M. (2019), Trabajo Social y Servicios Sociales. Conocimiento y Etica.
Note
← 1. In Cantabria, something similar to a catalogue or portfolio of services has been drawn up by the Cantabrian Social Services Institute. However, being an informative guide, it lacks any legal force. In Galicia there is no unified catalogue, but there are two decrees that regulate community social services and their funding (Decree No. 99/2012 of 16 March, regulating community social services and their funding, and Decree No. 148/2014 of 6 November, amending Decree No. 99/2012 of 16 March).