—Sofia Ranchordas, University of Groningen
[Editor’s note: This is one of our biweekly I-CONnect columns. For more information about our four columnists for 2020, please click here.]
President Ronald Reagan famously said, “The nine scariest words in English are: “I’m from the Government and I’m here to help.” This statement, intended as a joke, translates a common and relatable sentiment of distrust vis-à-vis public authorities. When we initiate our students into the complex world of Administrative Law, Social Security Law or Local Law, we teach them that citizens are entitled to various public services. The right to register a newborn, get married or divorced, register a child at a local school, or, when in need, apply for social welfare benefits, connect citizens to public authorities on a regular basis. However, for those that turn to government the most, the reality is very different from the one we teach our students and Reagan’s joke may sound all too familiar. In practice, citizens face multiple bureaucratic hurdles when contacting governments, including the requirement to fill in dozens of forms, comply with overwhelmingly complex procedures, long waiting lists, not to mention incomprehensible language and procedures. Digital government was supposed to come to the rescue of citizens and ensure seamless government transactions. However, this is not yet what is happening.
As discussed in my previous columns, millions of citizens are still left behind because they do not have stable access to the Internet, or have limited literacy or digital skills. In this blogpost, I discuss digital exclusion in digital government by devoting attention not only to the technological perspective but also to the longstanding administrative system that enables and perpetuates it. While many believe that digital government would be ‘transformational’, digital government is not developed from scratch: digital government is still politically tainted, path-dependent, bureaucratic, reproducing or amplifying existing problems and biases of the administrative state. In other words, when digital technology meets traditional paper-based bureaucracy, the result is not always less bureaucracy. In many Western countries, a single parent may be entitled to a number of benefits. However, citizens do not always apply for the benefits they are entitled to because they are not well-informed, do not have the ability to do so independently, or do not have the time to fill in sometimes dozens of complex forms.
In this blogpost, I discuss how the complexity of administrative procedures, along with the growing digitalization of government and disappearance of human assistance, can leave thousands of citizens behind even when the law is in theory on their side. I explore in this context the case of fraud management in light of an ongoing scandal in the Netherlands which illustrates well how citizens can easily fall prey to fraud management systems that regard welfare recipients as numbers on a ranking rather than as citizens with legal entitlements.
The “Benefits-Affair”: Harvesting the Low-Hanging Fruit
Administrative enforcement systems (including tax and social welfare fraud management) are inclined to tackle the ‘low-hanging fruit’. That is, as public authorities are nowadays evaluated by performance indicators, there is evidence that they are more likely to focus on cases that increase their revenue without making them incur high costs. This is particularly worrying as this focus on performance feeds default options and forms which may affect vulnerable citizens that cannot easily prove public authorities wrong. This seems to be precisely what happened in the Netherlands in an ongoing scandal involving thousands of citizens whose benefits were cancelled due to alleged fraud.
In the Netherlands, parents are entitled to childcare benefits (proportionate to their income) when their children go to kindergarten. If fraud is committed, recipients are required to return all undue payments with interest. In 2014, 300 Dutch families were informed that their benefits would be cancelled and the payments they have received for the previous years would have to repaid. They had allegedly committed fraud. Many of these parents were not able to offer counterevidence that they were innocent and were required to pay thousands of euros to the Tax Administration. For many of these (already) low-income families, the burden was too heavy to carry. Several families fell apart, others found themselves on the verge of bankruptcy. More recently, a whistleblower revealed that the Dutch Tax Administration had used falsified and meager evidence against these families. A prize-winning investigative journalist found that this illegal practice had not been limited to these 300 families. Rather, it affected thousands of citizens whose benefits had been canceled in the last decade. It appeared that some citizens had been found more likely to commit fraud because they had double citizenship and they were not able to rebut the evidence of fraud presented to them. There were also reports of citizens who mentioned that their past of addiction had been mentioned during conversations with caseworkers. Existing legal frameworks do not allow discrimination against citizens with double citizenship and safeguard against these types of repressive anti-fraud policies. As far as the public knows, ‘mutant algorithms’ cannot be blamed for what is now known, in the Netherlands, as “the Benefits Affair” (‘toeslagenaffaire’). Rather, this still unresolved scandal shows us that existing fraud enforcement policies and administrative procedures are not helpful towards vulnerable citizens. Even though Dutch administrative law is designed to protect citizens against the abuses of government and it is in theory coined by the principle that administrative judges should compensate for the inequality between citizens and public authorities, citizens still feel vulnerable before the government.
In the Netherlands, the influential think tank WRR pointed out in 2017 that there are multiple barriers that make the contact between citizens and public bodies challenging and can result in mistakes from the part of citizens. In the same year, the Dutch Council of State also warned of potential mistakes that can result from the existence of inconsistent obligations and the compartmentalization of information and forms. The risk of being sanctioned for mistakes, the user-unfriendliness of digital forms, the assumption that citizens have advanced digital skills, and the application of the ‘digital-by-default’ standard are further eroding the trust of citizens in government. The current wave of digitization of public services focuses on technical aspects of technology and sets aside the fact that (digital) government is primarily a social and political phenomenon which requires cultural changes, new skills, and the acceptance of citizens. When these human and social elements are not taken into account, a significant percentage of citizens might not be able to exercise their rights adequately, have access to public services and hence lose trust in government and its representatives.
Digital Government as a Double-Edged Sword
Digital government and administrative law assume that citizens must be able to exercise their rights on their own, particularly now that public services can be applied for 24/7 without leaving one’s house. Empirical research, the UN, the European Commission, and different Ombudsmen have warned that millions of European citizens are at risk of being excluded from equal access to public services and administrative justice because they struggle to comply with administrative requirements. This limitation is worsened by the fact that these citizens are also not always able to engage with the digital technology employed by digital governments. Lack of literacy, distrust, reduced self-reliance, poor socioeconomic conditions and psychological motivations underlie a deep disconnection between citizens and governments. For vulnerable citizens that require special human assistance when requesting public services, digital government amplifies this disconnection.
Technology is a double-edged sword for vulnerable citizens: On the one hand, technology maximizes the efficiency of the combat against fraud, reduces regulatory delays by providing rapid decisions, and thus promotes distributional justice. On the other hand, for vulnerable citizens who require additional assistance, digitalization and automation also increases ‘government anxiety’, the distrust in administrative justice. Many citizens simply refuse to accept technology because they are misinformed (e.g., 5G-conspiracies) or fear for their privacy, security, and health. Unequal treatment in digital government may also result from different features of automation, data collection, and algorithmic processing that add new layers of potential discrimination and exclusion to citizens that are already marginalized. Algorithmic processing analyzes data by assigning categories to data that has previously been collected or that is provided by users. This can happen, for example, during a conversation with a ‘chatbot’. In Australia, empirical research on the automation of welfare payments revealed the challenges of the automation of a range of processes that required individuals to enter their own data and update information about their income. One of the key controversies resulted from the design features of automatic procedures initiated as a result of the inaction of welfare recipients: When a welfare client would not engage with social welfare services online or in person or if there are gaps in the database, the system would fill the gaps with a fortnightly income figure from the national taxation office, further penalizing individuals who were unable to respond due to lack of access to Internet, or who had low digital literacy skills or who simply made inadvertent mistakes because they did not know how to insert information in the system.
Digital Technology: The End of the Bureaucratic Affair?
The ‘Benefits Affair’ cannot be blamed on technology as such. It is instead a classic case of human bias, the need to respond to performance indicators, and a mix of incompetence and lack of values. While the public does not yet know enough about this scandal, technology will not determine the “end of this type of affairs.” While governments continue to see technology as a tool to digitize existing procedures rather than as a tool to move away from bureaucratic hurdles and deep-rooted problems, citizens will continue to be faced with bureaucratic obstacles, discrimination, and ‘administrative vulnerability’. As of September 23, all Dutch governmental websites have to comply with the so-called ‘accessibility rule’ (European standard) and there will be growing need for expertise on this subject. However, this standard focuses on technical specifications (font, language, audio) and not on the real reasons that explain why certain citizens may not be able to exercise their rights and hence feel disconnected.
Many decades after Jerry Mashaw’s pioneering work on administrative justice was published, his legacy has never been so important to remember and study: especially in the digital age, administrative law must continue to pursue rationality through consistency, fairness, equal treatment, and the humane treatment of every single citizen. As Mashaw’s work explained, administrative authority without good administration is always dehumanizing.
Suggested citation: Sofia Ranchordas, Bureaucracy and Vulnerability in the (Digital) Administrative State, Int’l J. Const. L. Blog, Sept. 9, 2020, at: http://www.iconnectblog.com/2020/09/bureaucracy-and-vulnerability-in-the-digital-administrative-state/