Social assistance and the end of poverty

Abstract

This article aims to address the stigma and stereotypes inherent in the system of social assistance by addressing poverty as a matter of discrimination. Through the lens of discrimination, the article argues that the welfare system reproduces the very structures it aims to abolish in its alleged care for people living on the margins.

Entry

Social inequality and poverty are persisting problems even in welfare states. Almost 22% of the population in the European Union were, according to Eurostat, at risk of poverty in 2022 (Eurostat, 2022). In the EU, eradicating poverty and social exclusion has therefore been a priority for decades. In 2017, a right to be protected against poverty was proclaimed by EU institutions in the European Pillar of Social Rights, and from this a series of anti-poverty measures have been adopted. The Council Recommendation on adequate minimum income and active inclusion (the Recommendation on minimum income) ¹ and the EU directive on adequate minimum wages in the European Union ² are the most prominent of these. These anti-poverty measures address Member States’ social protection and labour market systems to ensure a minimum income for everyone, in combination with initiatives that support (re)integration into the labour market. In particular, relieving the poor through social assistance benefits, including active labour market policies, takes centre stage in the fight against poverty. This is, however, not due to the ability of social assistance to effectively lift people out of poverty, as social assistance systems have thus far demonstrated limited success in achieving lasting solutions for poverty alleviation.

In my view, the approach taken in the EU context to addressing poverty has thus far proven inadequate. This raises more fundamental questions regarding the legislative strategy to combat poverty. The current approach is based on the premise that poverty stems primarily from a lack of economic resources. Consequently, the strategies employed are limited to modernizing existing legal frameworks aimed at assisting individuals in poverty by guaranteeing a right to minimum income, along with measures to integrate them into the labour market. While it is of course important for individuals to have a right to a minimum income to live on, this approach simplifies what poverty is. It thus runs the risk of overlooking the stigma and the prejudice that come with living in poverty, and how this stigma is also reflected in the social assistance systems and the legal interpretation of rights to social assistance. This places the focus of poverty-alleviation efforts on the shoulders of the individual, leaving the responsibility of the social structures undisturbed.

In this article, I will advocate the inclusion of discrimination and prejudice as contemporary dimensions of poverty. This will add to the understanding and handling of poverty. Poverty, from this perspective, is more than just a lack of sufficient resources. It is a result of complex interactions between individuals, institutions, and broader social and legal structures. In these interactions, the law plays a significant role in maintaining and validating existing institutional arrangements that privilege some and disadvantage others. Efforts to combat poverty are therefore also about the fundamental perceptions and stereotypes underlying institutional arrangements, such as the system of social assistance. This approach moves beyond a mere economic understanding of poverty. It accepts that the unequal relations between groups in society form part of the understanding of poverty, and addresses these power relations to acknowledge the identity and moral habitus of those groups that are assigned an inferior position in society. These prejudices not only place vulnerable people in a subordinate position in society; they also help to keep others in a privileged position by maintaining the social order.

This article does not claim to be exhaustive in the sense of offering a solution to the problem of poverty. Rather, the aim is to add nuances and perspectives to the existing body of legal scholarship on poverty and social exclusion, particularly as this scholarship has unfolded in the context of EU social law. I first provide a contextualizing of poverty within legal scholarship, considering both social law and discrimination law. In the section on social assistance, I offer a discrimination perspective on the mechanisms of poverty in social assistance, exemplified by the recently adopted Recommendation on minimum income. Specifically, I concentrate on the stereotypes ingrained in this system, which impact both the understanding of poverty and the complexities associated with addressing it effectively. The analysis of social assistance illustrates specific and actual manifestations of poverty and social exclusion in a welfare context and at the same time provides an insight into the discriminatory dimensions of poverty.

Law, poverty, and social exclusion – state of play

There is no single, universally accepted definition of poverty, and the concept is interpreted differently across various traditions. However, poverty is most commonly interpreted as an economic category and is quantified using either absolute or relative terms. In the EU context, poverty is often situated within the discourse of politics and economics (Bergman, 1995; Schulte, 2002). According to the EU definition, individuals are considered to be living in poverty ‘if their income and resources are so inadequate as to prevent them from maintaining a standard of living that is deemed acceptable in the society in which they reside’ (Eurostat, 2022). How this is measured is essentially a political decision, and in the EU context, individuals with an income below 60% of the median income are classified as poor. ³ Within the economic discourse, elevating everyone above the politically decided poverty threshold requires legal interventions. Thus, income policies have emerged as a crucial approach to tackling poverty. ⁴ In this understanding, poverty is intrinsically linked to the dynamics of the economy and the market. It increases during economic crises or the emergence of new employment structures that leave individuals outside social security.

Poverty and social exclusion are increasingly also addressed from a legal perspective. Within this tradition, there is again no unanimous agreement regarding the conceptualization of poverty and the role that the law plays in addressing poverty, and substantial disparities exist in the methods applied, contingent upon the particular understanding of poverty. I will elucidate this by highlighting what I perceive as two distinct legal interpretations of poverty, each with its own legal rationale and proposed solution to the handling of poverty: the discourses of social law and discrimination law. The intent behind categorizing these legal discourses is to underscore the foundational assumptions of poverty on which each of these two traditions is based. Of course, it can be argued that this categorization simplifies the many different approaches to poverty seen in the legal tradition. The sole purpose of this division is to show how different traditions and understandings of poverty result in different approaches to poverty alleviation. In other words, this section does not aim to provide a complete overview of all legal literature on poverty.

Poverty as lack of financial resources addressed through the tradition of social law

The discourse of social law is concerned with the legal structures within the welfare state that pertain to individuals’ opportunities in a welfare society (Ketscher, 2014; Vandenbroucke 2020). Typically in the context of the EU, this field of law deals with dimensions of the social as outlined in the social policy chapter of the Treaty on the Functioning of the European Union (TFEU), and, more recently, the areas covered by the European Pillar of Social Rights (EPSR). In broad terms, this encompasses an interest in individual rights associated with access to the labour market, working conditions and social protection. Legal responses to poverty in this framework frequently mirror the economic understanding of poverty and, therefore, often draw upon or borrow notions of poverty as understood in economics. The understanding is that poverty and social exclusion result from the presence of gaps in the legal design of the welfare state, and therefore more effective legal measures and modernization of the legal structures of the welfare state are required. Poverty is, in other words, understood and addressed as a consequence of gaps in social security or social assistance systems, rather than as a result of inequalities ingrained in the social structures of mainstream society. The legal challenges associated with poverty are, in this tradition, intertwined with subsistence, including a right to a minimum income. ⁵ A main area of focus is addressing how social systems in the welfare states can be improved to mitigate economic inequalities arising from insufficient income (Aranguiz, 2022, ch. 1). In the summarizing article in the special issue of this journal on ‘Discussing strategies for Social Europe: The potential role of EU law in contributing to the Union’s policy objective of fighting poverty and social exclusion’, Frank Vandenbroucke concludes: ‘To fight poverty and social exclusion, EU must buttress basic nuts and bolts of welfare edifice’ (Vandenbroucke, 2020). Fighting poverty fundamentally involves modernizing the social structures of the welfare state to ensure that no one slips through the social safety net. Within this tradition, poverty is considered an economic problem that will ultimately be ended through well-established structures in the welfare states, encompassing the tax system, social assistance, social security and adequate working conditions. The focus accordingly is on updating and modernizing the structures and systems of welfare states and thereby mitigating the evolving dynamics of markets. This approach advocates the incorporation of new risk factors into the structure of the welfare state, guaranteeing comprehensive social protection and expanding coverage to include evolving employment relations and forms of self-employment. By tackling these dimensions, the idea is that welfare states will adjust to societal change and persist in delivering effective and inclusive social protection for their populations.

In part, what motivates this research is the observation that, despite successive EU strategies with clear policy objectives aimed at eliminating poverty and social exclusion, there has been little progress made in the EU Member States. The fight against poverty is, in essence, seen as a political goal in which the law functions as one of several tools to realize political aspirations. In this context, certain scholars emphasize the crucial role of the legal system and the law, asserting that the required changes occur through legislation (Aranguiz and Verscheuren, 2020). There seems to be a prevailing inclination towards stronger legal remedies as the most effective mechanism for translating political objectives into actionable legal claims. Criticism has for example been directed at the downgrading of a directive on social protection to a recommendation, as a recommendation is perceived as lacking sufficient legal strength. ⁶ Conversely, there is optimism surrounding the European Pillar of Social Rights, as the principles embedded in it are more comprehensive and offer a more solid foundation for the development of secondary EU legislation.

In summary, scholars in the tradition of EU social law approach the study of poverty from the premise that poverty and social exclusion largely stem from deficiencies in the legal framework of the welfare state. Consequently, they argue for more efficacious legal measures and the modernization of the legal structures within the welfare state. Poverty is perceived and treated as an outcome of shortcomings in social security or social assistance systems.

The structuring of the welfare system is undeniably crucial in addressing poverty. However, it is important to recognize that the design of the social system or the elements within it also influence the perception of poverty and thus the approach taken to address the problem. Therefore, in the following section, I will discuss how the legal prohibition of discrimination can serve as a crucial legal addition in the endeavour to alleviate poverty.

Poverty as discrimination

Viewed through the lens of discrimination and equality law, stigma, prejudice and discrimination are inherent facets of poverty (Ganty, 2021; Rognlien, 2020; Jørgensen, 2023). The legal concept of non-discrimination addresses in general how culturally ingrained stereotypical perceptions significantly contribute to inequalities. Stereotypes are defined as perceptions and generalized views concerning members of particular groups (women, ethnic minorities, disabled persons, or persons living in poverty) that are embedded in our culture and history and are based on the idea of inferiority or superiority. ⁷ Therefore, addressing and eradicating stereotypes is generally linked with achieving formal equality. People living in poverty also face stigma and prejudice. These are common stereotypes referring to the moral character of these individuals and are linked to traits society often condemns, such as the belief that individuals receiving social benefits are lazy or seek to exploit the system. Those subject to discrimination based on more traditional status groups, such as gender, ethnicity, disability or age are disproportionately represented among the impoverished (Fredman, 2011; Ganty, 2021; Rognlien, 2020; Jørgensen, 2023). Hence, it is not surprising that discrimination concerning poverty and vulnerability often centres on ethnicity (immigrants) and gender (single mothers). ⁸ Non-discrimination on grounds of ethnicity is also invoked as a legal tool to foster the inclusion of the Roma community, serving as a strategic approach in the fight against poverty within this specific demography in the 2021 Council Recommendation on Roma equality, inclusion, and participation. ⁹

In addition to facing discrimination based on ethnicity, gender or disability, individuals living in poverty also encounter discrimination because they are poor (Ganty, 2021; Turkington, 1993). Discrimination on grounds of economic condition/status or social origin/status often goes unnoticed, as social discrimination has not been seamlessly integrated into the EU anti-discrimination framework, which addresses more ‘traditional’ forms of discrimination (Ganty and De Vries, 2023). As a ground for discrimination, poverty or social status is still rather underexposed. ¹⁰ The perception that poverty is self-inflicted is also evident in the discrimination category regarding social status. This discrimination category has so far struggled to gain traction. One explanation for this is that it is tied to circumstances that individuals can change themselves. In other words, being poor is seen as a choice, unlike factors such as age, gender, ethnicity and disability (Ganty, 2019).

While there is scattered yet growing awareness in legal scholarly circles of the subjection of those in poverty to stigma and stereotypes leading to their further exclusion, the issue of discrimination based on social origin is only marginally addressed as an independent concern in the EU legal context. Social status is not specifically protected in the EU anti-discrimination legal framework, but social origin and property are mentioned in the EU Charter of Fundamental Rights, Article 21 (CFR). Within the context of the European Convention on Human Rights, social discrimination is emerging as a form of discrimination related to vulnerable citizens. ¹¹ In a compelling dissenting opinion in the Grand Chamber case of Garib v the Netherlands, concerning Dutch housing policy, the issue of social discrimination was explicitly addressed, contending that discrimination against the claimant on account of her socially precarious situation was the crux of the case. ¹² According to the dissenting judges, this perspective is essential in addressing poverty and its consequences. In paragraph 26 of the dissenting opinion, they state:

‘Going beyond its personal dimension and the dramatic effects it entails for the daily life and future of those concerned, poverty further modifies, in the most negative possible way, their relationship with others and with society. The risk of stigmatisation and discrimination is both aggravated and aggravating for individuals in a precarious situation. Access to certain basic services, like their full and complete integration into the social fabric, may be jeopardised by their social and economic situation, as a result of negative stereotypes and prejudices being perpetuated.’

As we can see, the two dissenting judges specifically focus their attention on the correlation between poverty, prejudice, stigma and social discrimination.

Within the EU legal framework, there are also a few examples of acknowledgement of the link between social stigma and social vulnerability. First, I will mention the recent Council Recommendation on minimum income. The Recommendation identifies social stigma as one of the reasons for the occurrence of non-take up of social assistance, which is emphasized as a challenge in guaranteeing everyone a minimum income to live from. Accordingly, the Recommendation, in its paragraph 10 (d), recommends that Member States should take ‘steps to combat stigmatisation and unconscious bias attached to poverty and social exclusion’. The Recommendation, however, does not indicate how this task is to be fulfilled. Furthermore, in its paragraph 9 (a), the Recommendation also addresses non-discrimination concerning the criteria for receiving social assistance, ensuring equal access to minimum income. In this context, the issue of the lack of a permanent address of recipients is specifically mentioned. Thus, to a certain extent, the Recommendation emphasizes discrimination in combination with social assistance, although it is by no means a predominant perspective.

In addition, there is also a reason to mention an older consumer directive, namely the 2014 Directive on the comparability of fees related to payment accounts, payment account switching, and access to payment accounts with basic features. ¹³ Today, access to a bank account is fundamental to being included and taking part in society. The 2014 directive, amongst other things, guarantees a general right to a basic bank account, which is essential for everyone, not least in increasingly digitalized societies. In Denmark, for example, it has been mandatory since 2017 to have a so-called ‘easy account’ for the disbursement of social benefits as well as salaries. ¹⁴ Access to a bank account is thus becoming a critical infrastructure of modern societies. However, vulnerable persons are often denied access to a bank account. They encounter various practical obstacles as well as biases, particularly related to their situation of living in poverty, and are often rejected as customers by the bank. They might lack a permanent address or cannot identify themselves properly, which is of course directly linked to their vulnerability. ¹⁵ However, the 2014 Directive emphasizes the connection between access to a bank account, vulnerability and social discrimination by guaranteeing equal access to a bank account for everyone. Recital 35 of the Directive explicitly states that: ‘Access to payment accounts with basic features should be ensured by Member States irrespective of the consumers’ financial circumstances, such as their employment status, level of income, credit history, or personal bankruptcy’ (my emphasis). Articles 15 and 16 of the Directive refer specifically to the non-discrimination clause in Article 21 of the CFR, which, as mentioned above, also includes a ban on discrimination on grounds of social origin. The Directive thus acknowledges that vulnerable persons are at risk of losing their rights solely due to their vulnerable situation. The Directive is now ten years old but is still of significant importance.

Understanding poverty through the lens of social discrimination directs attention to the stereotypes associated with poverty and vulnerability. By bringing these stereotypes to light, there is a basis for challenging them and thus ensuring recognition for groups that have historically been marginalized by society (Ganty, 2021). This understanding of poverty moves beyond the mere economic aspect and accepts that the unequal relations between groups in society, in which individuals engage and which are based on stigma and prejudice, form part of the understanding of poverty (Bonelli, 2012).

The principle of non-discrimination is a powerful legal tool that aims to bring about change. It seeks to challenge and change prevailing societal perceptions – those that define normalcy and determine what is valuable. A discriminatory practice or criterion is unlawful if it cannot be justified. The prohibition of discrimination holds a transformative potential. This also renders this legal concept controversial, since every societal transformation is always accompanied by friction. The transformative potential of the discrimination narrative is evident in most discrimination cases, but it was explicitly and very clearly formulated by Advocate General T. Capeta in her opinion in case C-356/21, concerning discrimination on the grounds of sexual orientation. In this case, a working relationship based on consecutive short-term contracts was allegedly terminated because of the sexual orientation of JK, who was delivering editing services to a public TV station in Poland, TP. After concluding that Directive 2000/78 applied to the circumstances of the case, the Advocate General went on to discuss whether the freedom to enter into a contract could be relied upon to justify discrimination on the ground of sexual orientation. The Polish transposition of the directive prohibited discrimination on grounds of sexuality in employment relations whereas, concerning the freedom to enter into a contract, the grounds of non-discrimination were limited to sex, race, origin and nationality – thus not sexual orientation. At the outset, the Advocate General establishes that the goal of Directive 2000/78 is to combat discrimination on protected grounds. Therefore, she continues in paragraph 119, by asking Member States to adopt effective sanctions to enforce this, the directive is ‘contributing to the combat against discrimination, as it could be expected that that will lead to a gradual decrease in and, ultimately, the disappearance of such behaviour’ (my emphasis). In simpler terms, combatting discrimination entails altering the behaviour of the discriminators, emphasizing that the necessary change lies with those engaging in discriminatory practices, not with those subject to discrimination. This statement underscores the profound impact of discrimination, highlighting its origins in the interactions and relationships among individuals. When applied to social discrimination, this legal concept has the potential to confront the prevailing perceptions held by the privileged in society of individuals living in poverty. ¹⁶ This implies that the right to be free from discrimination based on social status seeks to alter the perceptions and biases linked to social vulnerability underlying discrimination against this demographic.

As mentioned previously, the combatting of poverty primarily involves the modernization of social assistance systems and guaranteeing everyone the right to a minimum income. However, social assistance systems are not neutral. Rather, they mirror the underlying values related to poverty and wealth in mainstream society. As we will see, stereotypes attribute certain moral habits and behaviours to individuals receiving social assistance. I will now, in the following section, explore social assistance, to deconstruct the stereotypes and values that form the foundation of this system. ¹⁷

Social assistance as an anti-poverty measure

The social assistance system has been implemented as a crucial instrument in the endeavour to eradicate poverty. And of course, a right to a minimum income is vital for people otherwise left without funds. ¹⁸ However, the social system is not neutral. It is based on several assumptions and prejudices, concerning both those who receive social assistance and those who are privileged in society. The purpose of this section is therefore to draw attention to these prejudices, and thus provide a basis for assessing whether these systems are always organized in a way that alleviates poverty, or rather if they contribute to perpetuating poverty through the stereotypes and prejudices associated with receiving public assistance. I will use the recently adopted Recommendation on minimum income as an example, as it represents a generally accepted understanding of the social assistance system. To provide a context for this discussion, I will first take a brief look back at poor relief, which historically was the legal system designed to address poverty.

Poor laws

Poverty is a well-known legal concept, the origins of which can be traced back to the emergence of poor laws in Western European countries during the late 19th century. Systems for providing relief to the poor through alms have existed even longer. Before the development of modern welfare societies, poor relief and the system of poor laws served as the legal framework for addressing the deprivation experienced by individuals. In Denmark, a right to basic subsistence was included in the first Constitution in 1849 (Jørgensen, 2023; Ketscher, 2014). However, the receipt of subsistence (poor relief) was subject to legal effects. The legal consequences were forfeiture of the right to vote and stand for election, prohibition of marriage, and repayment. The legal effects were intended to discourage the individual from receiving public assistance. It was not until 1933 that these harsh legal effects of receiving subsistence were abolished in Denmark (Jørgensen, 2023; Ketscher, 2014).

Poverty was perceived as an inherent characteristic of industrialized societies. It was not considered a problem that could or should be eradicated, but rather, under certain circumstances, as a situation that could be alleviated (Santoro, 2012: 31 ff). Being poor was fundamentally attributed to moral shortcomings or negative behaviour of individuals and was therefore seen as a problem to be addressed on an individual level. The concept of poor laws itself was a moral construct, explicitly categorizing individuals in need into groups of varying degrees of deservingness. This evolved into the concepts of the deserving and undeserving poor, which were part of the poor laws. Linking poverty to personal failure, poor laws functioned within a legal framework that explicitly stripped recipients of poor relief of their civil rights, marginalized them from society and sometimes confined them to workhouses, explicitly excluding them from mainstream society. Punishment and control were employed as mechanisms to steer individuals away from their perceived destiny. With the evolution of modern welfare societies, social security systems were implemented to address risks considered deserving of protection, where it was deemed impractical for individuals to bear the responsibility independently, such as workplace injuries, old age and unemployment.

Today, we see the system of poor laws as inhumane and inappropriate for modern societies that emphasize social justice and the idea of universal human dignity. Nonetheless, despite the temporal and legal evolution away from past poor relief, contemporary welfare systems still retain aspects of the legal frameworks established by poor laws, as we will see (Dalli, 2020).

Combating poverty through minimum income assistance

In January 2023, the European Council endorsed the Commission's proposal for a recommendation on adequate minimum income and active inclusion. This initiative is recognized as a significant step in the fight against poverty and social exclusion. Article 1 of the Recommendation defines the overall aim of the text, which is to combat poverty and social exclusion by ‘promoting sufficient income support, particularly through minimum income, ensuring effective access to essential services for individuals with inadequate resources, and fostering the labour market integration of those capable of working, aligned with the active inclusion approach’.

While all EU Member States have established minimum income schemes, the European Commission suggests that these schemes require updates in both accessibility and adequacy to effectively serve as a framework for lifting individuals out of poverty. The Recommendation aligns with a traditional legal welfare discourse, portraying a caring welfare state that extends support to its most vulnerable citizens. We see this reflected in the rhetorical forms used to depict the system of social assistance, its various components, as well as its portrayal of recipients of social assistance. ¹⁹ In the following, I will give examples of the various perceptions which are embedded in modern social assistance systems. It is important to focus on these perceptions because they often go unrecognized, but inherently shape how poverty is addressed through the social assistance system. My arguments thus are based on an established understanding of the connection between language and understanding the world. This connection has been established in linguistics and philosophy, but also in the legal tradition itself. ²⁰

The Council Recommendation makes heavy use of linguistic images: the term ‘safety net’ is, for instance, consistently used as the metaphor for social assistance. This is a metaphor commonly employed to depict social assistance. ²¹ A safety net catches people as they fall. A safety net is a good thing. It ensures the safety of vulnerable citizens. In this way, the state (and the social system that the state is responsible for) is described as the good state, and we have a picture of a system that cares for its vulnerable citizens and prevents them from falling into poverty. The social system not only catches people who fall, but also helps to get them back on track. This is done, according to the Recommendation, by (re)integrating them into the job market. Social assistance, we are told, is not a passive tool; rather, it is an active instrument designed to ‘act as far as possible, as a springboard for socio-economic integration and upward social mobility, improving inclusion and employment prospects’, (Recital 15). The ideological narrative being created or reinforced here is that of the good welfare state, and of social assistance and activation measures as caring and effective tools. A ‘springboard to upward social mobility’ sounds nice. But anyone familiar with the social assistance system knows that this description has very little to do with reality. This positive portrayal of social assistance and activation measures, however, serves as a platform that significantly fosters stereotypical perceptions regarding the moral compass of individuals in need of social assistance. This picture of the state and social assistance makes it easy to blame the individual when he or she fails in the task of getting a job and thereby leaving poverty. In this depiction of the assistance systems, we only gain the impression of a good system. The Recommendation does not mention the aspects of the social assistance system that relate to control, punishment and own fault – through increasingly stringent eligibility assessments, sanction regimes and control mechanisms – which seem to be the more recent trends in Member States’ reforms of these systems. ²² This omission also shapes the understanding of the social assistance system. We are left with a depiction of a good welfare state that cares for its most vulnerable citizens. In this narrative, the recipients of help are easily made responsible for their destitution.

Social assistance and individualizing poverty

The ideological framing of social assistance and stereotypes assigned to recipients of social assistance create the narrative surrounding individuals living in poverty. Recipients of social assistance are faced with stigma and prejudice relating to their morality and societal worth, thus understood as of diminished value. The prejudice and stigma also translate into legal mechanisms implemented to address poverty. When the state is initially described as a good state helping to stop its citizens from falling into destitution, it is natural to address poverty through mechanisms targeting the behaviour of people living in poverty. Consequently, measures are oriented toward socializing recipients of social assistance by altering their behaviour. This perspective assumes that individuals in poverty bear responsibility for their circumstances and must alter their behaviour or acquire new skills to escape poverty. The individualization of poverty entails treating individuals as the targets of anti-poverty initiatives and shaping programmes and policies to address perceived deficiencies through training, education and activation efforts. This individualistic approach to addressing poverty and social exclusion places significant weight on personal responsibilities, failing to acknowledge that exclusion from the labour market is not solely an individual shortcoming, but also a consequence of systemic inequalities and biases. While an increased emphasis on vulnerable and marginalized individuals is of course positive, it ultimately runs the risk of supporting an individualized approach to poverty and social exclusion, neglecting the societal and legal structures of which they are a part.

Being in the workforce is the prevailing norm in society. ²³ Being outside the job market is therefore initially met with moral condemnation. This is evident both directly in legal regulations and in legal interpretations. Workfare is therefore the central principle underpinning social assistance systems. Recital 12 of the Council Recommendation accordingly states that: ‘Sustainable and quality employment is the best way out of poverty and social exclusion’. It continues: ‘In order to achieve higher employment levels, it is of paramount importance to support people in successful labour market transitions.’ Eligibility for social assistance is contingent upon participating in activation measures or other services designed to prepare and support the recipient for employment. This is so even though at best, these measures have no significant effect; at worst, they negatively impact the recipient's identity and dignity. ²⁴ In essence, the presumption is that everyone is capable of working unless proven otherwise. The Council Recommendation does make a distinction between those who can work and those who cannot. However, it does not provide any guidance on the intricate boundary between capability and incapacity to work. Recipients are therefore burdened with proving their inability to work – an onerous task. To prevent beneficiaries from becoming passive recipients of social assistance, ‘utility work’ has been introduced into the social assistance system in Denmark. Utility work is not work in the traditional sense. It consists of the recipient of social assistance performing so-called ‘socially useful tasks’ for public employers. The content of the tasks must exceed the standardized level of task performance at the public employers in question. ²⁵ Most recently, a political agreement introduces a new work obligation aimed at ‘individuals with integration needs’ (immigrants). From January 2025, individuals are required to contribute an equivalent of 37 h per week through diverse activities such as utility work or other forms of engagement. ²⁶ As mentioned, benefit jobs are not considered work in the traditional sense, and are therefore not covered by the general rules that apply to employees. ²⁷ The utility jobs serve as an illustration of how social legislation considers that welfare recipients are inherently passive recipients of benefits who will cheat the system. In general, insecurity and flexibility concerning the type of job imply that the job is not considered an appropriate (or standard) type of work, also in regard to free movement rights. ²⁸ The attribution of personal fault is particularly directed at migrants and single mothers, who are portrayed, as O'Brien notes, as engaging in acts of ‘civic irresponsibility’ (ÒBrien, 2013: 1668). By crossing borders or living alone, they have placed themselves in a position where assistance is necessary.

To ensure that recipients of assistance do not exploit the system by simply receiving assistance instead of working, the adequacy of the level of minimum income should, according to the Recommendation, be benchmarked against minimum income from work. This is so although there is no evidence ‘of significant negative impact on average on the likelihood of finding a job for people that receive minimum income support’, as explained in Recital 21 of the Recommendation. So, although there is no evidence supporting a general assumption that people receiving social assistance will not work, this principle of calculation serves an important role in maintaining the idea of a social order where it should always be worthwhile to be employed. ²⁹ The calculation of social assistance is thus dependent on the minimum wage in the labour market, resulting in some Member States having social assistance below the defined poverty threshold. ³⁰

The legal structuring of the social system has integrated several legal presumptions about those who receive assistance. These assumptions are expressed both within the legislation itself and in its interpretation in specific cases. The stigma of poverty within social assistance is the stigma of not working, being inactive in the context, and understanding the welfare state. Being an active person who contributes to the labour market is affirmed as the social norm, and social assistance recipients are socialized to conform to this norm. Social assistance is organized on the basis of the premise that recipients of aid typically deviate from the norm. Their requirement for public support is attributed to their circumstances, thus the emphasis is on addressing these situations or shortcomings. Recipients of social assistance are often perceived as passive and are essentially seen as either burdens on society or attempting to deceive it. Individuals outside the labour market are initially viewed with suspicion and their work ethics are questioned, resulting in their stigmatization as unwilling to work. They are met with a presumption that they are potential abusers of the system.

These negative assumptions about recipients of social assistance increase the tendency to blame them for their unemployment and economic problems within society. We observe comparable moral judgments and blame directed at EU citizens exercising their rights as Union members to reside in other EU nations and apply for subsistence in the host country. They are perceived and directly addressed as a burden to society, and the term ‘benefit tourist’ has become the moral (and legal) concept used to describe a person who makes use of the right for Union citizens to freely move within the Union, and who at some point applies for social assistance. The use of this concept is legitimized by the ECJ in its case law, whereby it gains institutional power. The case of Dano C-333/13, decided by the Grand Chamber in 2014, exemplifies how the ECJ, by categorizing Ms Dano as a welfare or benefit tourist, assigned her a moral identity that supports the notion that she intentionally exploited the social welfare system in Germany. Many commentators have criticized this case, which is seen as a politically infused turnaround by the ECJ in citizen cases. ³¹ The ECJ interpreted the factual circumstances of the case in a way that initially placed Dano as a social tourist, implying an attempt to exploit the social system in Germany. This classification of Ms. Dano as a benefit tourist led to the finding of the court that it was in accordance with Article 7 of Directive 2004/38 to refuse ‘to grant social benefits to economically inactive Union citizens who exercise their right to freedom of movement solely in order to obtain another Member State's social assistance (…)’ (my emphasis). However, there is in my view reason to question this very firm interpretation and judgment of her motives, based on the information provided in the facts of the case, listed in para 35–41. It follows from this listing of the facts that Ms Dano and her son are both of Romanian nationality. Her son was born in Germany and she last entered Germany in November 2010. We are also informed that her sister lives in Germany and that Ms Dano and her son have been living with the sister, who has supported them. It follows that Ms. Dano does not have any formal education and she has only limited skills in Germany. Finally, we are informed that Ms Dano received child benefit and a maintenance payment, whereas her first application for social assistance was not until September 2011 (para 40). Based on this information, the ECJ concludes that Ms Dano was exercising her rights to free movement ‘solely in order to obtain another Member State's social assistance although they do not have sufficient resources to claim a right of residence’, in which situation social assistance can be rejected according to the Residence Directive, para 78. In my view, it can be questioned whether, on the basis of the facts of the case, we can so easily assess or judge her behaviour and categorize her as a ‘social tourist’ exploiting the social system in another EU Member State. But this categorization contributes to establishing and perpetuating certain narratives or myths about people living in poverty, such as the belief that they move to exploit other countries’ welfare systems or that they have poor work ethics and want to live off public support. These and several other notions have acquired their meaning and exist as commonly accepted phenomena in the law and legal system. And among those who reproduce them, even if only passively, they nurture a trivialization of, contempt for or indifference to the poorest.

Do social assistance systems discriminate against the poor?

As we have seen, the social assistance system presents itself as a legal tool that contributes to lifting people out of poverty, as it ensures everyone a minimum income to live on as well as helping to (re) integrate them into the labour market. But this system is not neutral. It operates on the basis of numerous assumptions and biases regarding those who seek assistance, thus reinforcing the societal norm as those of us who do not require social assistance. Consequently, the social system also establishes a power dynamic and hierarchy between those included and those excluded. It can be argued that the harsh system of poor relief has metamorphosed into modern public assistance schemes, since these, to a significant extent, carry forward the same notions of stigma, stereotypes, exclusion, punishment and control. In the old system of poor laws, public assistance was explicitly prohibited, with the attendant stigmatization and exclusion. In the modern welfare state, stigmatization and moral condemnation are wrapped in well-meaning narratives of the caring and compassionate state. These prejudices and stereotypes form the basis for the handling of poverty: they are embedded in the legal components of social assistance and are ingrained in the legal interpretation. Recipients of social assistance are in a precarious situation, and therefore there is a risk of discrimination on the ground of social status regarding social assistance systems. When addressing poverty through minimum income schemes, this risk ought to be addressed. To date, the perspective of social discrimination has not systematically been part of the anti-poverty measures adopted in the EU context.

Exit

The EU has set a goal to eradicate poverty, as part of its efforts to create an inclusive society. This is an ambitious goal that seemingly aligns with our understanding of what a modern welfare state should be and do. The welfare state takes care of its most vulnerable citizens. However, despite decades of strategies and efforts, the goal is far from being achieved. This should prompt more fundamental considerations about what poverty is and whether the mechanisms put in place to combat it are relevant and sufficient – assuming, of course, that we truly want to eliminate poverty. This article is an attempt to provide new legal perspectives on poverty and the handling thereof in the EU and its Member States. An understanding of poverty as a relationship between individuals and as part of a social hierarchy means that the goal of eradicating poverty is of a more fundamental nature. The relationship between those who are inside and those outside who need to be included is influenced by fundamental and value-laden perceptions of each individual's significance and position within society. This understanding of poverty is intertwined with the principle of prohibiting discrimination, as it delves into how individuals interact within societal structures and hierarchies. Embedded within the legal framework of non-discrimination are also the stereotypes and prejudices that underpin discriminatory actions.

The principle of non-discrimination to a certain extent remains at the micro level, insofar as it addresses the conditions in which individuals may better fend for themselves in our current societies. This approach challenges the general understanding, stating that poverty is not an inevitable consequence of individual choices but rather a result of complex interactions between individuals, institutions and broader social structures.

The EU’s broader vision of a Europe where poverty has ended is still a utopia. To date, the EU has not provided us with much input to stimulate our imagination to comprehend that vision fully. ³²