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Report of the committee on civil liberties and social assistance

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Introduction

Definition of Social Assistance
Social assistance is known by many synonyms public assistance, public welfare, relief, the dole, the welfare, and no doubt, others that have not come to our attention. Whatever the name used to designate it, the essence of social assistance lies in this: that it is a form of provision (whether of money, of goods in kind, or of professional services of one sort or another), administered by or on behalf of some public agency, which is intended to supply the necessities of life for those who (for whatever reason) are unable to make such provisions themselves. It differs from those benefit schemes the provision of which, like family allowances, are made available universally to everybody who falls within a class of persons specified in the scheme. Again, it is unlike those plans in which an entitlement has to be earned, as in the case of contributory pensions, but once so earned, is automatic in application. The provision of social assistance is selective and conditional, requiring that application be made by those seeking its benefits, and that eligibility for benefits (assessed, generally, in terms of need) be determined by those administering them. If there is an entitlement, or right, to social assistance, it arises (so to speak) from one’s condition rather than from one’s status.

Inherently objectionable features of social assistance
Much could be said about the significance of the very existence of social assistance schemes. They are almost always used to supply the deficiencies of some other part of the social order, or some other part of the general system of welfare services—a faltering economy and widespread joblessness, unequal and inadequate educational opportunities, a self-defeating miserliness in the payments made on a categorical basis (to the handicapped, for example), actuarial miscalculations in the insurance programs, and so forth. We might almost say when social assistance has to be resorted to, it may be inferred that a critical failure in public intelligence or public good will has already occurred somewhere else. In general, the less of it, the better.

Unfavourable status of social assistance vis-à-vis other kinds of welfare programs
But if social assistance programs are to remain at all (serving, as it were, the purpose of a safety net, which we may hope it will be necessary to use as seldom as possible), they must still be viewed as a means of accomplishing the same civilized purposes that sustain other types of welfare programs. There is a well established tendency to look up social assistance as something in a category by itself, catering to a class of persons who differ in some essential way from those who use other social welfare services, and governed by a radically different set of moral principles. It is as though the man who claimed an income tax exemption for his dependents was simply exercising his elementary rights; the man who drew unemployment insurance was exercising a right that was his so long as he did not invoke it too often; while the man who applied for social assistance was begging a favour that we granted out of the goodness of our hearts.

Possible reasons for unfavourable status of social assistance
It is obviously beyond the scope of this paper to investigate the reasons for the specialized and grudging view we take of social assistance. No doubt it it closely bound up with the doctrines of economic “liberalism”, under which it is held that human rights are won in the competitive struggles of the marketplace, and that those who emerge from these struggles with few rights (i.e. little purchasing power) do so by reason of their own incompetence or irresponsibility. There ar not many people these days who are willing to affirm such doctrines in their pure form; and it must in any case be supposed that anybody who was blind enough to the realities of contemporary economic life to do so would be opposed not only to social assistance but to all forms of social welfare. The fact that notions of this kind are more often applied with critical intention to social assistance than to other types of welfare program is an anomaly that requires exploration. Our concern here is to point out that it is a fact, and to call attention to what appear to be some of its consequences; in particular, its consequences for the civil liberties of the recipients of social assistance.

Civil liberties issues raised by administration of social assistance

Ambiguity of law regarding right to social assistance
A serious ambiguity persists in British Columbia (as in many other jurisdictions) as to whether there is a right in law to social assistance. Granted that the acknowledgement of this right in any given case would depend upon the applicant’s ability to satisfy the prevailing standards of eligibility (such as legal residence in the province, genuine need, and so forth) it should nevertheless be possible to say in an unequivocal manner if a right exists to be claimed when those standards of eligibility have been met. This is not the case at the present time. The statute governing the administration of social assistance in British Columbia is susceptible to alternative and conflicting interpretations; the uncertainties this leads to have never (to our knowledge) been resolved in the courts; and no responsible spokesperson for the provincial government has undertaken to clarify the matter by enunciating a set policy expressing a commitment to one view of the legislation or another.

Now one may hold that the citizen is entitled to know precisely what his or her rights are (whether in regards to social welfare matters or anything else) quite independently of the beliefs one may have concerning what the legal rights of the citizen ought to be. A right of which those who are supposed to remain ignorant is for practical purposes no right at all. A right whose conditions of enjoyment are unpredictable degenerates into an indulgence. The door is opened wide to ministerial and bureaucratic caprice. Those who are denied what they believe to be a right are led to think themselves the victim of an injustice; those who are granted benefits they do not see as rights are led to think of themselves as the objects of patronage. A situation like this appears to us inefficient, humiliating and prejudicial to the liberties of the subject.

Inadequacy of benefits available under social assistance program
Social assistance is designed to “… assist in maintaining a reasonably normal and healthy existence” for those who are unable to achieve it by other means (Revised Statues of British Columbia, 1960, c.360, s.3). Opinions may differ about what constitutes “a reasonably normal and healthy existence”, and we do not propose to say if the possession of a television set or a car is an ingredient nowadays of a reasonably normal existence. But if the levels of assistance provided are such as to consume all the recipient’s ingenuity and energy making ends meet; if they effectively disbar him or her from participating in the processes of social and political life to which the majority of fellow citizens are expected to have access; if they concentrate in the mind upon the brute necessities of survival in the same fashion that Dr. Johnson observed of the prospect of being hanged; if they condemn the person to a manner of living that is calculated to rob anyone of ordinary feelings of self respect; then it seems certain that one of the most fundamental parts of a reasonable normal existence has been destroyed: we mean the capacity to assume and discharge the responsibilities of citizenship without extravagant destruction of mind or precariousness of circumstance. The discrepancies between intention and performance in the provision of social assistance in this province are objectionable not only because they are hypocritical but because they subvert the very conditions of moral freedom.

Arbitrariness of some of the conditions for the receipt of social assistance
It is a characteristic feature of a “right” that once the standards for determining whether someone possesses it have been satisfied, no further conditions can be attached to the exercise of that right in any matters to which it has due relevance. If I have a right to a certain sum in wages when I have completed an agreed amount of work, I cannot then be required to stand on my head for an hour before they are paid to me. Similarly, if I have a right to unemployment insurance when I am without a job and have contributed the necessary number of premiums, I cannot be required to show that I do not beat my wife before the unemployment insurance officials meets its end of the bargain.

Perhaps it is because there is such pervasive uncertainty about whether social assistance is a right that those in receipt of it should often seem not to have the same protections against arbitrariness and irrelevance in the conditions imposed upon it being granted—or once granted, being continued. It may be that the legislators who framed the Social Assistance Act intended that people who were to benefit by it should dance to any tune that might be played to them before the benefits were given. But this is both improbable in itself and contrary to what may be inferred from the law. (See, for example, item 4 in the Social Assistance Regulations: “The need of the applicant shall be the determining factor in granting assistance and the amount thereof”). It is all the more difficult, therefore, to justify the impertinent stipulations that are insinuated form time to time into the administration of social assistance. If social assistance if a privilege, the least we can do is deplore the bad manners bad manners and officiousness of those who would dispense privileges in such a fashion. If social assistance is a right, then we have an authentic case of the violation of civil liberties.

We do not suggest that this kind of administrative capriciousness exemplified in the following list is to be found in more than the minority of instances. But that it is to be found is the common knowledge of large numbers of social workers and even large numbers of social assistance clients.

  1. The enforcement of morals

    There are periodic outbreaks of concern with the so-called morals of social assistance recipients, i.e. their sexual behaviour. Although there may be cases in which common law marriage may raise reasonable doubts about a woman’s claim that she is destitute, and although a series of out of wedlock pregnancies may prompt the thought that the condition of economic dependency thereby precipitated might easily have been averted, there is altogether too short a step between such action as might be warranted by these considerations and action that arises from a craven and unprincipled defence to public censoriousness. Most sexual “immorality” is outside the scope of the law, and rightly so. If there are grounds for enforcing what some of us may judge to be sexual morality upon the indigent when all others are exempt, it is imperative that they candidly and clearly stated; though it is open to question that they would carry much conviction even if they were.

  2. Assistance in kind

    In ordinary parlance, to provide a person with the means of obtaining the necessities of “a reasonably normal and healthy existence” signifies giving that person money. This is what it also means for the vast majority of social assistance recipients. However, there is a minority of applicants whose claims are met by providing them with benefits in kind. That this arrangement deprives the recipient of the normal right to use his or her own judgement in caring for him or herself is obvious. But the forfeiture of ordinary responsibilities is even greater when some other person is mandated to decide how the recipient should use the benefits in kind. This is the situation that arises with social assistance recipients in Vancouver deemed to be alcoholics, and a similar situation has existed with the Sons of Freedom group encamped at Agassiz.

    We do not claim that there are never circumstances in which arrangements of this kind, however regrettable are justifiable. But we do believe that it should always be necessary to provide that justification. It is not always so at the present time. Unless the circumstances are exceptional, and the nature of the exemption can be clearly explained, meal vouchers belong with “improving tracts”—to the history of the subject.

  3. Formal abrogation of civil rights

    There are places in North America whether going on relief rolls virtually means surrendering citizenship. Disenfranchisement is only one of the more striking forms of the surrender. Fortunately, the impairment of the rights of social assistance recipients that sometimes occur in British Columbia has at least the merit of taking place, for the most part, in the interstices of the law than in its very structure.

    But there are some exceptions. It has been reported to use, for example, that one cannot obtain social assistance in Vancouver if one holds a business licence; and it is possible that similar provisions are in force elsewhere. It should go without saying that policies like this have no place in a civilized community. Quite apart from the absurdity that they are at odds with the rehabilitative purpose that is alleged to inform most current social assistance programs, they revive the notion that poverty is a species of crime requiring penalty, or a species of incompetence disqualifying one from the enjoyment of normal rights. Such notions lose credibility in the very act of being uttered.

  4. Needless invasions of privacy

    This Association has already declared itself on the subject of the right to privacy and the many threats to that right that discernible in certain trends of contemporary life. We would take an unfavourable view of violations of the social assistance client’s right to privacy even if it were not the case that the Social Assistance Regulations expressly affirm the existence of such a right. (Item 3(d): “The names of applicants and details of applicant for social assistance shall be considered confidential”).

    One may wonder, however, whether this right is much more than a legislative piety in certain cases that we are aware of. The circumstances under which interviews with social assistance applicants are conducted in the central office of the Vancouver Social Services Department would defeat any attempt to preserve confidentiality even if one could be sure that the attempt was being made. As things stand, many applicants for social assistance are under the necessity of exposing themselves to the public eye and about just those matters concerning which they have the deepest feelings of reticence. It is possible, of course, that the fact that the section of the public they are exposed to is composed mainly of other social assistance recipients is believed to annul the injury.

  5. Undesirability of residence requirements

    One of the most common conditions of eligibility for social assistance, in all parts of the world, is that the applicant should have lived in the jurisdiction in question for a set amount of time before making gan application for benefits. Residence requirements have been strongly criticized for their parochialism, their inappropriateness in an economy calling for high rates of mobility in the labour force, and for their sheer administrative costliness; though none of these considerations is of direct concern here.

    The substance of our objection to residence requirements has to do with the sanction they provide for the practice of repatriation. Repatriation is the procedure by which people who are ineligible, on grounds of insufficient residence, for social assistance in one jurisdiction, may return to the jurisdiction in which they are residentially qualified for assistance. Technically speaking, repatriation can only be carried out with the consent of the applicant; but no great exercise of the imagination is required to conceive how little real freedom of choice the applicant has. Moreover, the de facto forms of coercion implicit in this arrangement can evidently be given statutory force, should the need arise, by referring them to a section of the provincial residence laws that requires a social assistance recipient to obtain permission from authorities to leave the municipality.

    When one consider the venerable place that freedom of movement occupies in the canon of democratic liberties, one is hard put to know how a respectable countenance can be put on provisions like these.

  6. Civility as the ceremonial acknowledgement of legitimacy

    The great majority of the conscientious and overworked officials who deal with the applicants for and recipients of social assistance are helpful and courteous. A minority very definitely are not.

    It is impossible, of course, to legislate for good manners, and a studious concern for the dignity and well-being of others cannot be summoned into existence by decree. But the latitude for bureaucratic boorishness and arrogance is that much greater when the law itself is equivocal on the subject of the client’s status and rights. There is evidence, in fact, at every level of the legislative and administrative authority of a profound reluctance to affirm an unambiguous and effective commitment to the ostensible purposes of social assistance, and it is this prevarication that gives a licence to the petty cruelties of local bumbledom, wherever they occur.

    Immunity form the “proud man’s contumely” is not the sort of thing one expects to obtain from the law; but is may be that protection from the insolence of office is. To the extent that a social assistance client’s legally created vulnerability to this insolence subtracts from the dignity of citizenship, to that extent has the law put the client at an unwarrantable disadvantage, and to that extent has it impaired important liberties.

Defectiveness of appeal procedures
Those who believe that they have been dealt with improperly or unfairly as a result of decisions made about their eligibility for social assistance may apply to the Provincial Director of Social Welfare for a review of their case. This provision of the Social Assistance Regulations is, of course, no more than the minimum safeguard against abuse we are entitled to require of a law having such far-reaching consequences for those who may be affected by it. Indeed, our criticism would be that it does not go far enough, being in some ways seriously inadequate to its nominal purpose.

The principle deficiencies may be indicated with a brevity that is not matched by their importance. First, the amount of publicity given to the existence of an appeal procedure is totally inadequate. Secondly, the composition of the Board of Review is not calculated to inspire confidence in the petitioner that the case will be examined impartially, if only because one of the Board members (the Regional Welfare Administrator) could be regarded as a judge. Thirdly, no explicit provision is made for the ultimate appeal to the courts, of for that matter, to any tribunal wholly without representation from the Department of Social Welfare itself.

Conclusion and recommendations
Even in a statement as excessively long for the occasion of its publication as this, it has been impossible to do anything like justice to the complexities of the subject. In the circumstances, it is inevitable that there should have been little or no mention of a number of issues that are of great relevance; the opinions have in some cases taken on a tendentious appearance that was certainly not intended; the many arguments that are from time to time offered in defence of the practices criticized here have been neither stated nor challenged; and the chain of reasoning through which we have tried to establish the significance of social assistance for civil liberties has some links of dubious strength.

Yet it appears that the complex character of the subject, far from constituting a ground for respectful silence, provides the greatest argument for speech. Too many of the assumptions on which the law appears to rest remain unexamined. Much of the public discussion of social welfare problems, on the infrequent occasions when it occurs at all, takes the form of an unthinking exchange of stereotypes (e.g. the welfare bum) and of sophistries (e.g. calling coercion “rehabilitation). Attempts to come to terms with the particulars of the problem are constantly frustrated by an almost universal unfamiliarity with its first principles.

In other words, there is little chance, if any, of devising equitable policies in this field, and of developing good administrative practices, so long as our law-making continues to be a work improvisation and so long as public concern continues at its present derisory levels. The recommendations offered below are framed with these considerations in mind.

  1. The need for legislative review

    A number of recent events have conspired to call belated notice to the inefficiency and intellectual incoherence of the welfare services not only of this part of the world but of almost every country where public debate remains possible at all: the birth pains of Medicare in Saskatchewan, the parallel events in Belgium, the conflict of the ideologies of welfare and affluence in Britain, President Johnson’s widely publicized war on poverty, the confusions attendant upon the introduction of a contributory old age pension plan in Canada, and not least, the so-called welfare crisis in the northern regions of this province.

    All these events may be construed as symptomatic of an extraordinarily widespread uncertainty of purpose in this field of social policy—an uncertainty which is as much in evidence in British Columbia as it is anywhere. We accordingly recommend that the provincial government appoint or commission some appropriate body to undertake a critical review of the state of public welfare services in the province, the terms of reference of that review should include the implications for civil liberties of the manner of administering public welfare.

  2. The merits of the ombudsman system

    This Association has on more than one occasion made its views know on the virtues of the ombudsman system. There are good reasons for thinking that the important part of the work of such an official would be concerned with grievances arising from the operations of statutory welfare agencies. Since the flexible and informal methods of investigation characteristic of the work of an ombudsman would be well suited to the nature of the problems encountered in the field of social welfare, the system would seem to have a special aptness to the matters under discussion here. We therefore recommend that the provincial government give earnest consideration to the case for the creation of the public Office of the Ombudsman.

  3. The public role of private organizations

    There are a number of private organizations in this province that own explicit concern with the subject os social welfare, even though they are not engaged in direct service. The greater Vancouver Community Chest and Council, for example, has sponsored a number of studies of different aspects of the subject in recent years, including one that dealt with the inadequacy of rates of social assistance payments. The B.C. Association of Social Workers earlier this year submitted a brief to th e provincial government in which a number of proposals were made for the resolution of the welfare crisis alluded to already. Plans are already being made to establish of a provincial welfare council that we hope will provide a badly needed forum for the discussion of social welfare issues.

    Although the activities of these organizations are in no way co-extensive with those of the BCCLA, there are many obvious points of convergence in their interests and those of the Association. It is therefore recommended that the BCCLA take all appropriate steps to exploit such opportunities as may present themselves to establish collaborative relationships with other groups with concerns about social welfare policies.

  4. The crucial importance of informed public opinion

    Attention has already been drawn, in this report, to the low level of public interest in social welfare matters and the apparently causal significance of this situation for the inequitable way social welfare services have been administered. To counsel that the BCCLA engage in a program of public education is, in these circumstances, both natural and empty. Few of the means necessary for the promotion of such a program are available to the Association. Moreover it would be self-deluding to ignore the fact that the Association’s activities in this field are almost certain to expose us to charges of political bias.

    Nevertheless, since the field is replete with issues for a civil liberties organization, and since an informed and alert state of public opinion is a precondition of improvements in the law and its administration, it is difficult to see what alternatives are open to the Association. It is therefore recommended that the BCCLA maintain a watchful concern with the risks to civil liberties arising from the operations of the social welfare services, and that it take every suitable occasion to bring to public notice both the existence of those risks and the principle reason for their being judged as such.

Board of Directors minutes of June 29, 1964

It was also resolved to approve the report of on social welfare and to send a copy to Honourable W.D. Black. The executive secretary is to write to the Canadian Welfare Council to request that they list the address of our association.