Between the rules: Administrative justice and the enforcement of social security law in The Netherlands

Between the rules: Administrative justice and the enforcement of social security law in The Netherlands

By Paulien de Winter

In April 2019, I attended the SLSA conference at the University of Leeds. I presented my work on enforcement of social security law in the Netherlands called ‘Enforcement Styles at Social Security Agencies’.  This empirical research is part of my PhD-thesis that I hope to defend this July at the University of Groningen. The title of my thesis is ‘Between the rules. A social-legal study of the enforcement of social security law’ (written in Dutch). I focus on the role of front-line officials who are involved in the enforcement of social security legislation. For this purpose, I have observed various employees in the course of their daily work. I have analyzed the implementation practice of social security legislation by using multiple perspectives. The perspective I describe in this blog classifies the behaviour of front line officials based on four different enforcement styles. In this blog, I will explain my research methodology and I will present a glimpse of my empirical findings regarding the enforcement styles of front line officials.

Dutch context

The Dutch political and public debate is currently dominated by the notion that fraud in social security must be severely punished.[i] ‘Fraud should never pay off’ is a commonly heard statement in the Netherlands. The Tightening of Enforcement and Sanctions Policy Social Affairs and Employment legislation came into effect on January 1st, 2013. This law introduced a stricter system for the legal sanctions of Social Assistance Agencies and the Employee Insurance Agency with the intention of deterring stubborn fraudsters. The law is therefore referred to as the ‘Fraud Act’. With the introduction of the Act, the Dutch legislator has expressed its wish that social security agencies should enforce the law more strictly.

Enforcement styles – two dimensions

One of the ways in which I analyzed the behaviour of front-line officials (street-level bureaucrats according to Lipsky[ii]), is by classifying them according to their enforcement styles. An enforcement style is a pattern of actions and concerns how officials act in their daily contact with clients to promote compliance with rules.[iii] Most previous studies focus either on how officials execute rules (see for example ‘modes of rule application’ by Kagan[iv]) or on how officials respond to rule violation (see for example Reis, Hawkins, Hutter or Scholz[v]). The enforcement style model that I use in this study – based on Peter J. May and Søren C. Winter – combines both aspects (dimensions): rule application and response to rule violations.[vi] The method of rule application can be (more or less) strict or flexible and the response to (possible) rule violations can be (more or less) persuasive or punitive. The combination of both aspects produces four possible enforcement styles: flexible punishment, strict punishment, flexible persuasion and strict persuasion.

Methods

I have studied five implementing agencies: three Social Assistance Agencies with the fictional names ‘Klarenzicht’, ‘Langebeek’ and ‘Menterhaven’ and two Employee Insurance Agencies with the fictional names ‘Arperdijk’ and ‘Blakendam’. The agencies were selected based on the location of the agency, the size of the agency and the enforcement reputation of the agency. Gaining access went relatively smoothly, probably mainly because I approached the agencies from the bottom-up. For example, I got access to the first agency based on my contact with their ‘social detective’ (enforcement official) and at another agency the first conversation was with their enforcement team manager.

In approaching the agencies, I first sent an e-mail explaining my research and ask to conduct this research at their agency. The second step was a meeting at the location of the agency (sometimes a phone call was necessary to let them agree with the meeting). After this meeting, the officials had to get approval of their managers. Usually I had to present my research to the higher managers before receiving final approval. One agency denied access based on my e-mail. In return for allowing access, I promised insights to the functioning of their organization. Additionally I guaranteed anonymity of their agencies and of their employees and clients. All agreements were recorded in a ‘contract’, especially to prevent them stopping using the collected data.  Next to this, I signed the confidentiality statement at all agencies and all agencies had the opportunity to respond to my manuscript before I published it.

This resulted in five case studies of the enforcement of the obligations laid down in Dutch social security legislation. I used several methods of data collection: participatory observations, in-depth interviews and an analysis of policy documents and files. During my fieldwork, I was present at the agencies for a total of eleven months in the period September 2015 to June 2017. I was there three to five days a week, and recorded my observations in different types of notes. All those involved were aware of being part of my research. The participating observations provided a picture of the daily activities of employees and their dealings with benefit recipients. In addition to observations, I conducted 66 interviews. All field notes and transcripts of the interviews were coded with Atlas.ti.

Glimpse of the results: Differences in enforcement styles

The classification of front-line officials according to their enforcement styles leads to three findings. Firstly, three enforcement styles were found in practice; flexible persuasion, flexible punishment and strict punishment. I have not found the enforcement style of strict persuasion in the practice of social security. The reason that strict persuasion has not been found is that a strict interpretation of the rules implies – because of the strict Fraud Act – a punitive response to violations in social security legislation.

Secondly, some officials combine different enforcement styles. Here we can differentiate between those officials that occasionally apply a different enforcement style than their regular one and those officials that structurally combine different enforcement styles. When enforcement styles are occasionally combined, officials seem to adjust their behaviour when they are ‘affected’ by the behaviour of beneficiaries. In this case, their dominant enforcement style is that of flexible persuasion, whilst occasionally making use of the flexible punitive enforcement style. Officials who structurally combine enforcement styles interpret the rules flexibly and respond both persuasively and punitively to violations. In these cases, the official aligns his or her behaviour with that of the beneficiary. These officials are primarily focused on the attitude and motivation of the beneficiary.

The third finding is that enforcement styles of front-line officials differ between and within the investigated agencies. The variation between the agencies can probably be explained by three factors: the management, the discretion that officials are given to handle the rules and the frequency of contact with beneficiaries. The research shows that the management differs, while some managers focus on work processes and formal rules, others give officials at lot of freedom to deviate from the rules. A great deal of discretion can lead to a more flexible and persuasive enforcement style because officials are given the room for a broader interpretation of the law. At the same time, this discretion can lead to a variation in enforcement styles because officials determine how they want enforce the rules. When analyzing the differences in the frequency of contact between beneficiaries and officials, the research shows that officials are more persuasive in agencies where they have more frequent contact with benefit recipients and therefore know benefit recipients better, than in agencies where officials have less contact with benefit recipients.

Variation within the agencies can partly be explained by the age, gender, position (in case of Social Assistance Agencies) and work history (in case of Employee Insurance Agencies) of the officials. This research suggests that older officials (aged 55 and over) may apply the rules more flexibly and respond less violently than other age categories. I also found a connection between the gender of the employee and the enforcement style of the official. The women surveyed respond more often punitively to violations, whilst men apply the rules more flexibly. The differences in enforcement styles may also be explained by the general attitude and views of officials. Furthermore, the position of officials matters: enforcement officials respond more often to violations by punishing and reintegration officials apply rules more flexibly. Finally, the work history has an influence. Namely, officials with a work history at the reintegration department lean towards a more punitive reaction to rule violations and officials with a work history at the Employee Insurance Agency itself lean towards a more flexible interpretation of the rules.

Between the rules

My study demonstrates that the enforcement of social security law differs in practice. All front-line officials find themselves located between the rules. For some officials, acting between the rules means that they are busy applying the rules in individual situations as correctly as possible. In doing so, they interpret the rules as strictly as possible, whereby they do not include their preference for the reaction to a violation. Yet for other officials, acting between the rules means that in individual situations they are mainly concerned with how they can align the rules to the situation of the client. In this regard, alignment with the beneficiary is paramount and the rules shift to the background. Front-line officials find ways to act between the rules, as they think is best suited in those situations. In their eyes, they deliver administrative justice in this manner by making the ‘right decisions’.

[i] This is also the case in the United Kingdom, see for example M. Adler, Cruel, Inhuman or Degrading Treatment? Benefit Sanctions in the UK, Cham: Palgrave Socio-Legal Studies 2018.

[ii] M. Lipsky, Street-Level Bureaucracy. Dilemmas of the Individual in Public Services, New York: Russell Sage Foundation 1980.

See also more recent the work of B. Zacka, When the State Meets the Street. Public Service and Moral Agency, Cambridge: The Belknap Press.

[iii] P.J. May & S.C. Winter, ‘Regulatory Enforcement Styles and Compliance’, in: C. Parker & V.L. Nielsen (ed.), Explaining Regulatory Compliance: Business Responses to Regulation, Cheltenham: Edward Elgar Publishing 2011, p. 222-244.

P.J. May & R. Burby, ‘Making Sense Out of Regulatory Enforcement’, Law & Policy (20) 1998, 2, p. 157-182.

[iv] R.A. Kagan, Regulatory Justice. Implementing a Wage-Price Freeze, New York: Russell Sage Foundation 1978.

[v] A.J. Reis, ‘Selecting Strategies of Social Control over Organizational Life’, in: K. Hawkins & J.M. Thomas (ed.), Enforcing Regulation, Boston: Kluwer-Nijhoff Publishing 1984, p. 23-35.

1984. Hawkins, Environment and Enforcement, Oxford: Clarendon Press 1984.

B.M. Hutter, The Reasonable Arm of the Law? The Law Enforcement Procedures of Environmental Health Officers, Oxford: Clarendon Press 1988.

J.T. Scholz, ‘Cooperation, Deterrence, and the Ecology of Regulatory Enforcement’, Law & Society Review (18) 1984, 2, p. 179-224.

[vi] P.J. May & S. Winter, ‘Reconsidering Styles of Regulatory Enforcement: Patterns in Danish Agro-Environmental Inspection’, Law & Policy (22) 2000, 2, p. 143-173.