The reform of the social welfare system, is one of the topics of which has been discussed for years, especially in the part related to cash social benefits (cash social assistance, increased cash social assistance and one-time assistance, etc.) and other financial benefits that belong to the population policy sector (child allowance). Thus, the amendments to the Law on Social Welfare and the Law on Financial Support to Families with Children, stand out as necessary in order to adapt the social welfare system to the needs of the poorest.  

Nonetheless, the adoption of the Law on Social Cards has been a key measure of the reform of the social welfare system for some time, as it would enable faster exchange of data between the competent state bodies that keep records of conditions important for exercising social welfare rights. As stated in the exposé for the new composition of the Government of the Republic of Serbia: “the priority reform in terms of better targeted social benefits is reflected in the work on social cards that represent a unified insight into data on current and potential beneficiaries.” At the same time, it is emphasised that “[social] cards will [enable] citizens who are in the most difficult economic situation to be more visible in the system, in order to exercise their rights to the necessary support in a timely and effective manner”. 

Today, the Assembly of Serbia will start the debate on the long-awaited Law on Social Cards. It seems that this Law has completely reformed the social welfare system and that all problems have been solved. At least it seems so to anyone who follows the news coming from the authorities in the Ministry of Labour, Employment, Veterans and Social Policy. 

In this text, we will try to answer the question what is regulated by this brief Law and how all this will affect the procedure of exercising rights in the field of social welfare. 

Introductory provisions - matter regulated by law, aim and purpose of data processing

 

The Law defines that it regulates the establishment and maintenance of a single register called the Social Card, as well as the content of this register, the manner of access, processing and storage of data within this register. Furthermore, the aim of the Law is to establish a single and centralised record of the socio-economic status of individuals and persons related to them. This goal should enable the administrative bodies in charge for decision-making in the social welfare system to better perform data processing in order to determine the facts necessary for the exercise of rights and services from the social welfare system. All this is done for the sake of greater efficiency, fairer distribution of social benefits and proactivity of administrative bodies that decide on rights and services from the social welfare system. 

Indeed, when we know that over the years we have been talking about an increasing number of social assistance beneficiaries, that the Republic Institute for Social Welfare writes about in its annual reports, and about a decreasing number of employees in the social welfare system, it seems that faster data exchange in electronic form will increase efficiency and, ultimately, resolve requests for exercising the right to financial social benefits in less time.  

In accordance with the principles of personal data protection and obligations from the Law on Personal Data Protection, which is the umbrella law in this area, article 4 of the Law on Social Cards precisely defines the purpose of data processing. There are five different issues that determine the purpose of processing:  

determining the socio-economic status of the individual and persons related to him/her; 

automation of procedures and processes related to actions in the field of social welfare; 

creation of social policies through determining the socio-economic status of the individual and persons related to him/her and the wider community; 

prevention of poverty and elimination of the consequences of social exclusion, and 

conducting statistical and other research in the field of social welfare. 

Authority for establishing the Social Card, protection of personal data and other “technical” issues 

 

Article 5 of the Law on Social Cards prescribes that this single register shall be established and maintained by the ministry in charge of social issues, while technical support in establishing, maintaining and ensuring data security and safety shall be performed by the Office for Information Technologies and E-Government.

According to article 11 of the Law on Social Cards, users of data from the Social Card shall be centres for social work, local self-government units that perform entrusted tasks in the field of social welfare (such as the Secretariat for Social Welfare of the City of Belgrade or other bodies), the ministry in charge of social issues, the provincial secretariat in charge of social affairs, as well as other state administration bodies and institutions. 

The second paragraph of this article explicitly stipulates that, in the processing of personal data, users of data from the Social Card shall act in accordance with the umbrella law – the Law on Personal Data Protection. 

Moreover, according to this Law, the natural person to whom the data relate has the right to insight and the right emanating from the realised insight, through the e-Government Portal, in accordance with the law governing the protection of personal data. It should be noted here that the Law on Personal Data Protection, as the umbrella law, places the right of access to personal data in a much wider context than article 11, paragraph 3 of the Law on Social Cards. This is primarily perceivable in the part concerning the manner of exercising the “right to insight” and “the right emanating from the realised insight “. 

Thus, according to the umbrella law, this right, defined by the term “access to data”, can be exercised regardless of the fact whether it is implemented through the e-Government Portal or in any another way. Persons whose data are processed by the Law on Social Cards are beneficiaries of the rights and services of the social welfare system and potential beneficiaries of this system, that can correctly be assumed to be less able to use the e-Government Portal. Therefore, the right to insight and rights emanating from the realised insight referred to in article 11, paragraph 3 should be interpreted as an additional, special right, which, in addition to the one provided by the Law on Personal Data Protection, is regulated by the Law on Social Cards. Any other interpretation would be contrary to the Law on Personal Data Protection and would open a discussion on whether it is set in accordance with the principle of unity of the legal order from the Constitution of the Republic of Serbia. 

The single register we are talking about – the Social Cards, has been established on the basis of data taken from the records in the field of social welfare kept by the relevant ministry, as well as the registers kept by other state bodies. These include: data from the Central Population Register, registers of the organisation for mandatory pension and disability insurance, registers of the Ministry of the Interior on vehicles, weapons, readmission, registers of the National Employment Service on payments of cash benefits and payments of temporary and special benefits. Furthermore, this article stipulates that data from the registers of the Tax Administration and the Republic Geodetic Authority be taken into the Social Cards.

In order to maintain and update the Social Cards, the Law stipulates the exchange of the data contained in the above-mentioned records and registers. However, there is a dilemma: if it is a data exchange – how can it be two-way, i.e. how is it ensured that the data from the Social Cards can be exchanged and disclosed by transferring or submitting to the operators of records and registers that exchange data with the Social Cards. The Law on Social Cards does not provide answers to these questions. 

In article 16, the Law envisages the creation of reports in the Social Cards, which can be pre-defined or defined at the request of the Social Cards’ beneficiaries. These reports serve to present “data relevant to determining the socio-economic status” of a beneficiary or a potential beneficiary of the social welfare system at the level of the wider community, i.e. city, municipality, administrative district of the province and the republic, and an overview of the rights that an individual used or still uses, as well as effects of social welfare measures. 

The second paragraph of this article stipulates that in this way the preparation of reports on beneficiaries who are at risk of natural and other disasters will be ensured. However, it remains unclear how these reports will be compiled and what they will be used for. No relevant provisions on this can be found in the legal text. 

A cuckoo in the nest of the Law on Social Cards – the procedure for creating and submitting notifications

 

In the part entitled “Procedure for creating and submitting notifications” referred to article 17 of the Law on Social Cards, we finally come to an explanation of the purpose of such a wide exchange of data established by the new Law. This article prescribes the procedure in cases where inconsistencies in data on the beneficiary or related persons are determined. Then a notification on data inconsistency is created (it may not be completely clear who creates the notification – whether it is automatically created within the Social Maps or by a ministry or by a third party) and contains instructions to the data beneficiary that it is necessary to check data by viewing and retrieving data from official records, documentation and public documents, that it is necessary to make a decision at the request of the party or that it is necessary to initiate proceedings ex officio because it has been found out about the facts of significant impact on the exercise, change or termination of social welfare rights. 

Article 17 of the Law on Social Cards prescribes the following: 

“If during the data processing there is a discrepancy of data on the beneficiary, i.e. related persons, a notification shall be created and sent to the records in the field of social welfare referred to in article 12, paragraph 1 of this Law.

The notification on non-compliance of data referred to in paragraph 1 of this article shall also contain an instruction to the data beneficiary that it is necessary to: 

Perform data verification by inspecting and taking over data from official records, documentation and public documents; 

Make a decision at the request of the party; 

Initiate proceedings ex officio, because the facts of significant influence on the exercise, change or termination of social welfare rights have been found out.” 

That is why the process of forming and submitting notifications can be considered key to understanding what the Social Card actually is.

To answer this question, we must return to the basic concepts defined by the Law on Social Cards. Here, the term individual states that it is a person who is a beneficiary of rights and social welfare services and a person in the process of exercising rights. This is, hence, a person who has exercised the right to social assistance or a person who is trying to exercise the right to social assistance. 

To simplify everything, we will imagine two people with similar life circumstances. 

One is John, who lives in a common-law union with his partner and one child, has been unemployed for a long time, although he regularly reports to the clerk in the National Employment Service, has a tumbledown house in which he lives, does not own property of greater value. John has been a beneficiary of the social welfare system since 2009, when he fell into poverty that he is still struggling with. John is, as the Law on Social Card says – a beneficiary of rights and services from social welfare, i.e. an individual whose personal data is collected and processed. 

On the other hand, Jack has a wife and two children, lives in the basement of an abandoned building, is unemployed, poorly educated, without regular income, ill and due to his lack of information has not yet submitted a request for social assistance. According to the provisions of the Law on Social Welfare, Jack will not be an individual to whom the law applies until he submits a request for exercising the right to financial social benefit. 

Now that we have met John and Jack, let us return to the provision of article 17 of the Law on Social Cards. 

As seductive and beautiful as it may sound, initiating the procedure ex officio, which is provided for in article 17, paragraph 2, item 3 of the Law on Social Cards, is not possible in Jack’s case. The social card does not contain information about Jack, he is neither a beneficiary nor a person in the procedure for exercising the rights from social welfare. He is just a poor man who needs social benefit. 

On the other hand, the moment when John’s partner gets a job in a store, when he goes to Germany “as an asylum seeker”, or when he receives a gift of greater value, during the data processing there will be a discrepancy between the beneficiary, our John, and the provision of article 17, paragraph 2, item 3 will be activated by creating a notice of non-compliance which warns that John receives social benefit for two days, two weeks or a month longer than he is entitled to. 

This provision of the Law leaves us the opportunity only to conclude that the Law on Social Cards is passed not for the proclaimed better targeting of a larger number of people in poverty who will be entitled to cash social benefits, but for the abolition or suspension of benefits in cases in which the beneficiaries “skip” the threshold for exercising the right to financial social benefits due to a certain life situation. Nevertheless, it will be possible to achieve better targeting in cases that concern beneficiaries who have previously been denied a request for social assistance, but who subsequently met the conditions for exercising social welfare rights due to the new life circumstances. The percentage of these cases in the practice is still unknown. 

Furthermore, this provision will additionally strengthen the obligation stipulated in article 97 of the Law on Social Welfare obligating the beneficiaries to report changes, which could affect the right they exercise. This article of the Law on Social Welfare stipulates, inter alia, that the beneficiary of the right to financial social assistance is obliged to report to the Centre for Social Work any change relevant for the recognised right within 15 days from the day the change occurred. 

The key reason for passing this Law is to reduce abuse regardless of their quantity, which is clear from the explanation of the Law.  Incidentally, the Prime Minister once spoke about this abuse, mentioning cases where social assistance beneficiaries “come in an Audi to get social assistance” (not knowing or not caring that the amount of social assistance for an individual does not suffice to cover the cost of full tank of any Audi, even the smallest one). The explanation states that the adoption of the Law on the Social Cards will enable “a fairer distribution and reduction of abuses, efficiency in work and proactivity of public administration bodies.” It is further stated that abuses are prevented in the part concerning the exclusion of all those “who are ‘mistakenly’ included in the rights from the system”. 

When a new perspective of the provisions of the Law on Social Welfare is added to article 96 it is clear that the automatic review, i.e. the creation and submission of notifications under article 17 of the Law on Social Cards significantly “tightens” the conditions provided by the Law on Social Welfare. These provisions stipulate that the Centre for Social Work reviews the conditions for exercising the right to financial social assistance in May, based on the income of beneficiaries realised in the previous three months”, except for those beneficiaries who are able to work, who receive social assistance in Serbia nine months during the calendar year. This fact brings us back to the field of respecting the constitutional principle of unity of the legal order, because the law in the field of special processing of personal data in the social welfare system encroaches on the rights from the social welfare system itself, which are regulated by the Law on Social Welfare. 

At the very end – which personal data does the Law on Social Card collect and process?

 

Almost all of them. 

By roughly listing the data stored in the Social Cards, which are also referred to in articles 7 – 10 of the Law on Social Cards, we can find at least 135 different data! 

There are data ranging from general, such as personal number, place of residence, citizenship, occupation, marital status, place of marriage (it is unclear why this data is important), all the way to data on movable property, paid pensions and other cash benefits, social assistance payments, health status, number of household members, ethnicity, data on domestic violence, disability, etc. 

Data on “related persons” are collected, and according to the Law on Social Cards, they are all persons who “have a closer or distant kinship, i.e. property relationship, with an individual who is a beneficiary of the social welfare system, which has an impact on the exercise of rights”. More precisely – in addition to the circle of related persons and relatives already defined according to national regulations, a former partner is also included.

While after reading the new Law, the verses of the popular song “Be Careful Who You Love” occupy our mind as one’s partner’s income can cancel one’s social assistance, we can only hope that by the announced start of the application of the Law on Social Cards – March 1st, 2022, there will be enough time to create and submit a notice that the legal text is inconsistent with both laws the matter of which it touches – the Law on Social Welfare and the Law on Personal Data Protection.