- 011-00-382/2024-02 date: October 31, 2024.
MINISTRY OF LABOR, EMPLOYMENT, VETERAN AND SOCIAL AFFAIRS
Nemanja Starović, Minister
11000 BELGRADE
Nemanjina no. 22-24
Subject: Initiative for amendment of provisions of the Law on Social Protection
Dear Mr. Starović,
The Commissioner for the Protection of Equality within the competences prescribed by the Law on Prohibition of Discrimination[1] monitors the implementation of laws and other regulations and initiates the adoption or amendment of regulations to promote equality and protection against discrimination. In this regard, in the previous period, the Commissioner submitted several initiatives to the Ministry of Labor, Employment, Veteran and Social Affairs related to the amendment of several provisions of the Law on Social Protection. Bearing in mind that until the date of writing this letter, the Law on Social Protection has not been amended following the initiatives sent, as well as that the Ministry in the previous period announced amendments to the Law on Social Protection, in the attachment, we are sending you the integrated initiative of the Commissioner for amendments to this law important for all our citizens and citizens.
We remind you that after an ex-post analysis of the law, the Ministry of Labor, Employment, Veteran and Social Affairs drafted the Law on Amendments to the Law on Social Protection, which was offered for public discussion in mid-2018. In the explanation, it was stated that the goals of the amendments were: 1) Improvement of the quality of services and the implementation of professional procedures in social protection; 2) Development of social protection services provided in the local community; 3) Elimination of legal and technical deficiencies in procedures, the implementation of which is regulated by the Law on Social Protection; 4) Improvement of family support measures and services and prevention of displacement of the child from the family; 5) Strengthening the competencies of employees in bodies and organizations that perform social protection activities; 6) Expanding the capacity to provide services in social protection; 7) Strengthening capacity for monitoring, evaluation and improvement of the social protection system; 8) Harmonization of the Law on Social Protection with other relevant laws.
In order to achieve the set goals the Commissioner reminds previously submitted initiatives and recommendations of this body for improving the social protection system.
In 2018, the Commissioner submitted an Initiative to amend Article 82, Paragraph 1, Point 1) of the Law on Social Protection. In the initiative, it was pointed out that in addition to increasing the prescribed area of the land, when deciding on the right to financial and social assistance, it is necessary to consider the quality of the land and the possibility of its cultivation, leasing, or sale. The reasons for launching this initiative primarily lie in the fact that elderly households with a land area larger than prescribed are often at risk of poverty. The results of the research carried out at the time, conducted by the Commissioner for the Protection of Equality and the Red Cross of Serbia, showed that every tenth elderly person in the village has no personal income, while the right to financial social assistance is used by only 4% of respondents. Also, out of the total number of respondents, only 2% of the elderly who live in the countryside have financial help from their children or relatives, while those who earn income from rent make less than 1%, whereby these incomes are minimal. In addition, 70% of the elderly in the countryside live in households with only two members and therefore cannot rely in old age on the benefits that life in a multigenerational household can provide. Although we are one of the countries with the oldest population, the number of elderly citizens who exercise the right to financial and social assistance in the Republic of Serbia, according to data from the report of the Republic Institute for Social Protection, this number is almost negligible compared to the total number of beneficiaries of this right and amounts to around 5%. The Initiative also pointed out the obligations undertaken by the Republic of Serbia within the Employment and Social Policy Reform Program in the process of accession to the European Union, which stipulated that to increase the coverage and improve the adequacy of cash benefits, it is necessary to undertake measures to relax property conditions that are taken into account when realizing the right to financial social assistance, primarily by increasing the land maximum depending on the quality of the land, especially for elderly households. It is necessary to determine the real possibility of generating income from owned land in situations where it exceeds the property threshold prescribed by law because ownership of abandoned land in remote areas, especially in modern conditions of agricultural production, does not mean that the land can provide adequate income for a regular and decent life. The Initiative also pointed out the additional support proposed by the Fiscal Council, which refers to the abolition of the obligation to pay retirement and disability insurance contributions for agricultural households that own less than 10 hectares of land, stating that the establishment of the system of social cards allows the state administration to implement the improved system of social protection of elderly households effectively with modest additional costs of only a few billion dinars per year.[2]
In addition, the Commissioner points to the need to consider the excluding condition from Article 82, paragraph 1, item 2 of the Social Protection Act, which stipulates that an individual or a family cannot exercise the right to financial social assistance if the individual or a family member sold or bestowed immovable property or renounced the right to inheriting immovable property or if a period has passed in which, from the market value of the immovable property they sold, bestowed or waived the right to inherit, they could provide assistance in terms of this law. The Commissioner believes that this condition needs to be considered separately from the aspect of both its expediency as a condition that completely prevents a person from exercising the right to financial social assistance and its permanence in the sense that no deadline is prescribed in the law, but it is only taken as relevant how much a person could take care of themselves or their family members in the case that they did not waive it. The Commissioner believes that the condition, as it is now set in Article 82, paragraph 1, item 2 of the Social Protection Act, can in practice permanently prevent a person or family from exercising the right to social assistance because that person, for example, was not even socially endangered in the earlier period when they waived their rights in favor of their relatives, without knowing about possible consequences of such a waiver. Also, the Commissioner points out that it is necessary to reconsider the justification of this condition, especially in view of the still deep-rooted prejudices, beliefs, and patterns of behavior in which tradition has primacy over the law in the inheritance procedure and where there is still a firmly rooted expectation that property is divided in such a way that women waive their right to inheritance in favor of male relatives. In the Research on Inheritance Rights and Attitudes towards Inheritance in Serbia, conducted by the Commissioner in 2024, it was pointed out that the data that only 64% of the respondents answered that the laws in Serbia prescribe equal rights for men and women in terms of inheritance is worrying. This indicates that as much as a third of the respondents (36%) are either not familiar with the legal provisions or believe that there is a certain degree of inequality that the law allows. Regarding the practical application of the law, although the legal framework guarantees equal rights for men and women, only slightly more than a fifth of the respondents (23%) believe that men and women have equal inheritance rights. An additional 30% believe that they generally have equal rights, and as much as 36% believe that women do not have the same rights as men.[3]
It is also not rare that citizens do not know that renouncing their inheritance, no matter how small, can disable them for a very long period in exercising their rights from social protection. In addition, the question of the justification of such a condition arises, especially when someone gives up property to provide another family member with the necessary accommodation for living. The Commissioner believes that the conditions for realizing the right to financial and social assistance must be such that no person or family is left without this right in a situation where they are endangered to the extent that they cannot secure their existence and the minimum standards that every person should have. In particular, it should be taken into account that persons at greater risk of discrimination, for whom the Constitution stipulates that they enjoy special protection, such as women, children, persons with disabilities, single parents, etc., should be supported and protected following the law, when they find themselves in a state of social need. In relation to this, we suggest that the solutions offered by comparative legal practice regarding the conditions that a person, that is, a family, should fulfill in realizing the right to financial social assistance be reviewed.
The Commissioner for the Protection of Equality further reminds that a recommendation of measures for achieving equality regarding the establishment of standards for the provision of services under Article 60, paragraph 3 of the Law on Social Protection was sent to the Ministry of Labor, Employment, Veterans’ and Social Affairs, and the Ministry of Health, but that these standards have never been developed, despite that the Law on Social Protection came into force back in 2011. This recommendation aimed at initiating the necessary measures and activities to enable exercising of social and health services and provision of services to the category of users who, due to their specific social and health status, need both social care and permanent health care or supervision. The Commissioner pointed out the demographic trends that foresee an increase in the expected length of life, which will lead to a significant increase in the representation of elderly people who are 80 years old and older. Given the high prevalence of elderly people living alone, often without family support, there will be an increasing need for home care and palliative care services.[4] In addition, the importance of palliative care should be taken into account, which is very important for improving the quality of life of patients in the terminal phase because due to their health condition, that is, the stage of development of their disease, in addition to medical therapy, they also need additional support in eliminating physical and psychological pain, as well as in overcoming other difficulties the terminal phase brings. Palliative care services represent a specific and most important type of support for individuals and families who face problems in a certain stage of the disease, and it is thus necessary to define specific standards for this type of service, as well as the competences for monitoring and controlling the provision of the service.
The Employment and Social Policy Reform Program in the Process of Accession to the European Union (ESRP)[5], adopted by the Government of the Republic of Serbia, foresees the continuation of the deinstitutionalization process and development of non-institutional services in the community, i.e., provision of funds and professional capacities for this expansion and development.
The Republic of Serbia also adopted the Strategy of deinstitutionalization and development of social protection services in the community in the period 2022-2026[6] (and the corresponding action plan), which, among other things, should enable the development of social protection services in the community, which will contribute to enabling users of the social protection system who need more intensive support to meet most of their needs in a natural environment.
Observing the satisfaction of the population’s needs, there is an apparent lack of scope and type of social protection services, as well as their availability and continuity. According to the data of the Republic Institute for Social Protection, the most developed home assistance service is not available in all local governments, while within the country, there is only one daycare center for adults and elderly people who need all-day supervision and support, there are only three institutions that provide shelter services and daycare center for children and youth, which operate in two municipalities in Belgrade, the number and capacity of shelters for victims of violence, the so-called “safehouses”, is insufficient, etc. The problem is also the lack of cooperation between local self-governments when, for example, a user of social protection services lives in the territory of one and studies or works in the territory of another local self-government. Also, in practice, there is a problem of continuity of appropriate support that will enable a person with a disability to be fully included. The practice of the Commissioner, as well as various research studies, have shown that the existing social protection system has not adequately recognized, in particular, individuals with autism and those suffering from rare diseases, meaning that certain services do not meet the needs of these users. The problem of obtaining further support from the social protection system, either through daycare services, personal assistance, or some other social protection service, is particularly pronounced when a person completes primary and secondary education and reaches the age of 26.
The lack of social protection services leads to an unequal position of persons who cannot receive support services at all or cannot accept them continuously, that is, it leads to discrimination of those persons based on various personal characteristics – disability, age, state of health, etc. The problem is also that due to the lack of organized services, there is a large number of informal caregivers, who are mostly women, which puts an additional burden on them, prevents them from joining the labor market, creates economic dependence, and deepens gender inequality. In the sense of the above, when amending the law, it is necessary to consider ways of financing and harmonizing the provision of social protection services throughout the entire territory of the country according to the needs of the population, whereby an analysis of the existing services should be performed to establish whether they are provided in such a way that their realization can satisfy different user needs. For example, the Commissioner’s practice has shown that services in the education process support certain persons but that such support is absent in the work process (persons with autism, people suffering from rare diseases…). The problem of obtaining further support from the social protection system, either through daycare services, personal assistance, or some other social protection service, when a person completes primary and secondary education and reaches the age of 26, is particularly pronounced. An example is the personal assistance service, regulated by Article 99 of the Rulebook on closer conditions and standards for the provision of social protection services,[7] which stipulates that personal assistance services are available to adults with disabilities with estimated I or II level of support, who exercise the right to an increased allowance for other people’s care and assistance, can make decisions independently, are employed or actively involved in the work of various citizens’ associations, sports clubs, political parties and other forms of social engagement, i.e. are engaged in a regular or an individual educational program. Following Article 100 of the Rulebook, this service’s purpose is to provide appropriate individual practical support for the user to meet personal needs and engage in community educational, work, and social activities to establish the highest possible level of independence. A person with a disability who is incapable of independent decision-making should be provided with appropriate support to make that decision, that is, they should continue to receive some type of support when they finish primary and secondary school to maintain and improve the achieved level of inclusion. Research[8] which was conducted on a sample of 71 parents and 30 persons with disabilities, aged 18 to 65, shows that the majority of them live with their parents, while only 13 percent have their own family, the same percentage lives independently, and every tenth person is in a social institution protection. Only a fifth of persons with disabilities have the support of a personal assistant, which is financed from the local self-government budget, while 13% of them pay for this service with their own money. Only a quarter of parents of children with disabilities have the support of other family members, which means that practically the entire burden of care falls on them.
Respite accommodation service in the territory of the city of Belgrade[9] is short-term and occasional accommodation for children and youth with developmental disabilities, which is provided as day, weekend, or multi-day accommodation to provide support to users and their families in maintaining and improving the quality of life, with the aim of keeping the user in the family. The respite accommodation service is provided to children and youth with developmental disabilities between the ages of five and 26 and, among other things, to children with intellectual disabilities and autism, multiple developmental disabilities, sensory disabilities, and physical disabilities. In this regard, the Commissioner believes that this service is a good example of the improvement of social protection services, but that it is limited only to the territory of Belgrade and that the capacity of the “Center for accommodation and daycare for youth and children with disabilities” is insufficient, bearing in mind that it is available to 51 users only.
For years, the Commissioner has been pointing out the insufficient quantitative and qualitative capacities of the centers for social work, which represent key institutions in realizing social protection rights and services. The capacity of specific systems is also discussed in the Report on the audit of business expediency – Effectiveness in the work of centers for social work in providing social and family legal protection by the State Audit Institutions (DRI), in which, among other things, it was stated that, in the period 2020 – 2022, on average, eight centers for social work did not have a single employed social worker, 21 centers operated without lawyers, 17 centers without a psychologist, and 57 without a pedagogue. When amending the law, it is necessary to carry out an analysis of all the tasks performed by the centers for social work, as well as whether there is a possibility that specific tasks under the competence of the center for social work can be organized differently, such as, for example, dealing with requests for exercising the right to an allowance for assistance and care of another person and an increased allowance, especially when it comes to the realization of this right at the level of the difference between the right from the field of social protection and the right realized in another system such as, for example, the system of pension and disability insurance. In this regard, we remind that in the Program for the Reform of Employment Policy and Social Policy in the Process of Accession to the European Union, it is foreseen that it is necessary to improve the system of long-term care by reviewing the justifications for the existence of benefits from two systems – based on insurance (PIO) and social benefits from the social security system, with a more detailed analysis of the method of allocation and the use of functional criteria for awarding the aid and care supplement by the PIO Fund Commission, which would enable greater accessibility of the rights of persons with mental and intellectual disabilities.
Furthermore, the Commissioner reminds that in 2019 they sent the Ministry of Labor, Employment, Veteran and Social Affairs a recommendation for measures to achieve equality in connection with the renewal of licenses for professional workers who used pregnancy, maternity, or leave from work to care for a child. Namely, The Law on Social Protection does not regulate cases in which a request for license renewal is addressed to the Chamber by professional workers who, due to pregnancy, maternity leave, absence from work to care for a child, or serious health problems, were absent from work during the period of validity of the license and were therefore unable to meet the conditions for license renewal within the prescribed period. Therefore, there is a legal gap in the Law in terms of the duration of the license, the deadline for submitting a request for license renewal, i.e., the conditions that apply to the renewal of the license, for the aforementioned professional workers, as a result of which they could lose the right to perform the tasks for which the license is intended.
To ensure non-discriminatory application in practice, the Commissioner sent a letter to the Chamber of Social Protection, in which they pointed out the anti-discrimination regulations that must be considered when interpreting how to overcome the existing legal gap. In Article 10 of the Rulebook on the Licensing of Professional Workers in Social Protection, it is established that the professional worker is obliged to professional development following the law, other regulations governing professional development in social protection, and this Rulebook, while professional development includes continuous monitoring of the development of theory and practice of social protection and gaining knowledge and skills that improve the process of protecting and supporting users. This article stipulates that the professional worker’s license is renewed if they meet the conditions for license renewal by acquiring the required number of points, following this Rulebook. Also, in paragraph 6 of this article, it is stipulated that the professional worker participates actively and passively in collecting points, according to the Score List, as well as that they are obliged to submit to the Chamber, by the end of the current calendar year, appropriate evidence of the number of points earned in the past period, and that the expert will be awarded points above the number for license renewal provided for in this Rulebook, if they were gained during the period until the license renewal, and a maximum of 20 points, during the next license renewal. Article 19 of the Rulebook stipulates that a professional worker meets the conditions for license renewal if, within a period of six years from the issuance of the license, they have gained 120 points, with the fact that in the first three years, they should reach 30% of the total number of points set, as well as that they are obliged to acquire at least 30% of points by actively participating in their collection, following the Score List. Analyzing the provisions mentioned above, the Commissioner concluded that even the Rulebook on the Licensing of Professional Workers in Social Protection does not regulate cases in which the request for renewal of the license is addressed to the Chamber by professional workers who, for the reasons mentioned above, were absent from work during the period of validity of the license and therefore were unable to collect the appropriate number of points following the Score List within the prescribed period and renew their license. Therefore, there is also a legal gap in the Rulebook concerning the required number of points for professional workers who were absent from work during the period of license validity for the stated reasons, which is why they were not able to participate in the collection of points, actively and passively, as a result of which they could lose the right to perform the tasks for which the license is intended. In connection with this, the Commissioner pointed out the Convention on Equal Opportunities and Treatment for Workers (Workers with Family Responsibilities Convention) No. 156 from 1981,[10] which applies to workers who have obligations towards the children they support and when those obligations limit their ability to engage economically and progress. The member states have committed themselves to set as a goal of national policy the possibility for these persons to use all their rights from the employment relationship without discrimination. Convention on Maternity Protection of the International Labor Organization no. 183 from 2000[11] stipulates that each member must adopt measures to ensure that maternity is not a source of discrimination in labor relations. Bearing in mind that the Republic of Serbia is in the process of harmonizing its legislation with the regulations of the European Union, we also pointed out the Directive 2006/54/EC of the European Parliament and the Council of July 5, 2006, on the implementation of the principle of equality and equal opportunities for men and women in matters of employment and performing their occupation, which in Article 2, paragraph 2, provides: “For this Directive, discrimination includes… (c) any unfavorable treatment of a woman in connection with pregnancy or maternity leave as stipulated by Directive 92/85/EEC”. We also refer to Council Directive 200/78/EC of November 27, 2000 – General Framework for Equal Treatment in Employment and Profession, which provides in the Preamble: “(3) In implementing the principle of equal treatment, the Community should, following Article 3 (2) of the EC Treaty, tend to eliminate inequality and promote equality between men and women, especially since women are often victims of multiple discrimination.”
Bearing in mind that the Law on Social Protection establishes, among other things, that the conditions for issuing a license, the form of the license, and the method of issuing and renewing the license to professional workers are prescribed by the minister responsible for social protection, the Commissioner recommended measures to prevent the interpretation of the provisions of the Rulebook contrary to anti-discrimination regulations. Although by interpreting the rules following the Commissioner’s proposal the problem is currently overcome, we consider it necessary to regulate the matter mentioned above by law.
Finally, bearing in mind the fact that the Law on Social Protection is the umbrella and most important law in the field of social protection, the Commissioner points out that during the drafting of this law, i.e. its amendments it is necessary to carry out an assessment of the impact of regulations on the realization of the rights of socioeconomically disadvantaged persons or groups of persons, which, in accordance with Article 14 of the Law on Social Protection, should contain: 1) a comprehensive description of the situation in the area that is subject to regulation, with special reference to socioeconomically disadvantaged persons and groups of persons ; 2) assessment of the necessity and proportionality of the intended changes in regulations from the aspect of respecting the principle of equality and the rights of socioeconomically disadvantaged persons and groups of persons; 3) risk assessment for rights, obligations and legally based interests of persons and groups of persons referred to in paragraph 3 of this Article.
Bearing in mind all of the above, we consider it important that, when considering the announced amendments to the Law on Social Protection, these problems that crystallized during the law’s application in practice and indicated that specific provisions of the law need to be additionally amended and improved are taken into account.
[1] “Official Gazette of RS”, no. 22/09 and 52/21, Article 33, paragraph 1, item 7, in connection with item 5.
[2]Proposal for social and tax policy measures to reduce inequality and the risk of poverty in the Republic of Serbia
[3] Research on inheritance rights and attitudes towards inheritance in Serbia, Commissioner for the Protection of Equality, 2024. Available at: chrome-extension://efaidnbmnnibpcajpcglclefindmkaj/https://ravnopravnost.gov.rs/wp-content/uploads/2024/10/Izvestaj-Nasledna-prava-i-stavovi-prema-nasledjivanju.pdf
[4] Strategy of palliative care (“Official Gazette of RS”, no. 17/09)
[5] https://socijalnoukljucivanje.gov.rs/wp-content/uploads/2016/06/SIPRU-ESRP-2016-Srpski.pdf
[6] “Official Gazette of RS”, no. 12/22
[7] “Official Gazette of RS”, no. 42/13, 89/18 and 73/19
[8] https://www.politika.rs/scc/clanak/607594/Mladi-sa-autizmom-nemaju-odgovarajucu-podrsku-sistema
[9] Decision on social protection rights and services (Official Gazette of the City of Belgrade, no. 55/11, 8/12 – corrected, 8/12, 42/12, 65/12, 31/13, 57/13, 37/14, 82/15, 4/16, 37/16 and 56/16)
[10] “Official Gazette of the SFRY”, no. 7/87
[11] Law on ratification of the Convention of the International Labor Organization no. 183 on maternity protection (“Official Gazette of the RS – International Treaties”, number 1/10), Article 8, paragraph 2.
COMMISSIONER FOR THE PROTECTION OF EQUALITY
Brankica Janković
