Lisa Embo, Mathias De Potter, Ward Diependaele, Robin Verbeke (Master Students, Advanced Study Constitutional Law, Ghent University), Pieter Cannoot (assistant, Ghent University) and Juan Benjumea Moreno (assistant, Ghent University)

OCMW schema _ ENThe Flemish government plans a vast structural reform of the Public Centres for Social Welfare (PCSW).  The PCSWs will no longer be a separate local entity, but will be integrated into the local administrations. An exception will possibly be provided for certain central cities. This is one of the main objectives of the current Flemish government, which they wish to achieve by 2019. The integration is a very ambitious project, as proven by the problems that have already arisen. For example, the Flemish government is yet to agree on how to integrate the PCSWs into the local administrations. This and other similar issues are expected to become the subject of numerous future discussions in the federal, regional and local governments.

The bipolar model

Articles 1 and 2 of the Federal PCSW Act of 8 July 1976 (hereinafter “the PCSW Act”) laid down the legal fundaments of local PCSWs, granting them legal personality and a vast array of responsibilities. This act also provides that everyone is entitled to social support so that they can enjoy a dignified life. Every municipality in Belgium must provide these social services through a separate institution with legal personality, the PCSW. In addition, the Federal Pacification Act of 9 August 1988 (hereinafter “the Pacification Act”)  inserted several stipulations with regard to local governments in municipalities with facilities for French, Dutch or German speaking inhabitants. The organic and substantial foundations of the PCSWs are therefore to be found at the federal level. However, the Flemish PCSW Decree did add a new objective stating that the PCSW has to sustainably contribute to the well-being of the citizens.

The federal regulations led to the current structure in which the PCSW must be a separate entity with its own legal personality, means, rights, burdens and obligations. This is referred to as the bipolar model, where the governments apply a strict division between the municipality and the PCSW. During the fourth state reform (the Lambermont Accords of 1993) Flanders was authorized to deviate from the federal legislation and lay down the fundamental rules on the PCSWs’ organisation. However, until recently the Flemish legislator pursued the bipolar model. In its 2005 Municipality Decree and 2008 PCSW Decree, the Flemish legislator upheld the separate organisation of municipalities and PCSWs.

The bipolar model under pressure   
The average PCSW budget of 2015 shows that a third of its revenue comes from the services it provides (e.g. the daily prices in the nursing homes, fees for home care services, etc.). Article 106, paragraph 1 of the PCSW Act states that when the expenses exceed the PCSW’s revenue, the municipality must cover the difference. On average, this means a contribution by the municipalities of 27,1%. This clearly indicates that the PCSWs already have a very important impact on the municipal budgets. Besides the financial aspect, there is also a political connection between PCSWs and the municipalities. Candidates for the PCSW Council are put forward by the members of the municipal council, which votes on its final composition. Also, the president of the PCSW Council is automatically appointed as alderman of municipal social affairs.

Both the PCSWs and the municipalities have competences concerning the local social policy, which explains the close relationship between the two. Despite this fact the PCSW Act established a bipolar model, where the PCSW and the municipality are separate entities. This is contradictory to the nature of their competences as explained before. As a result, the current structure has been long criticized. The current model does not comply with the growing need for effectiveness, efficiency and transparency. The current Flemish cabinet Bourgeois-I therefore wishes to reform this structure by bringing the PCSWs and local administrations closer together or even fusing them.

Objective and ratio legis

The Flemish coalition agreement of 2014-2019 voiced the ambition of the government to turn the municipality into the government closest to the citizen. A simplification of the local structure is a major instrument in achieving this. Municipalities will receive more autonomy to formulate and develop their policies. The concept note made by Flemish Internal Affairs Minister Liesbeth Homans puts forward four key reform objectives: maximum integration of social policy, a stronger municipal council, higher autonomy and efficiency and finally lowering the threshold for citizens to participate. Minister Homans has announced the drafting of a new local governance which will replace several acts such as the Municipality Decree and the PCSW Decree. The Walloon region is also considering integration between the PCSWs and the municipalities. But while in Flanders the fusion will be obligatory, in Wallonia it will be each municipality’s decision. The Brussels Capital Region opposes the integration. This means that a significant policy asymmetry will arise between the Regions. This is due to the fact that, for the first time, the Regions will make use of their extended competence to regulate the PCSWs’ organization.

Pursuant to the Belfort principle, a minister is obligated to create models so municipalities can assess the effects of the proposed reforms. Three of these models are provided in the concept note of Flemish minister Homans. The first model integrates the PCSWs into the existing municipal structure. In this model, individual social support requests will be handled by the existing municipal bodies. The second model creates a new external autonomous agency that will handle the requests. In the third and last model the requests are handled by a special committee under supervision of the municipal council. In each of these models the social policy itself is decided by the democratically legitimized vote of the municipal council and executed by the local government. Finally, the third mentioned model is put forward as the most ideal instrument in achieving the aforementioned goals.

It should be noted that even though the coalition agreement of 2014-2019 emphasizes that the integration will be voluntary for central cities, their eventual fate is unclear. Firstly, the reason for this exception was not given and secondly, in the aforementioned concept note the exception is still foreseen but its usefulness is questioned. Flemish Minister Liesbeth Homans, in the commission meeting of January 20th, 2015, stated: “It would make the legislation much too complicated. Providing for an exception for central cities would mean that the old PCSW Decree would remain in force for central cities, while the other municipalities would use the new act. Therefore the thirteen central cities will also have to participate in the integration of PCSWs. These cities are even enthusiastic about our plans, except for some.” So, it remains uncertain whether the integration will be compulsory for central cities.

The umbrella organisation of Flemish local governments and PCSWs (VVSG) cautiously endorsed the integration plans. In this regard the VVGS points at the economies of scale that could be achieved through this integration, as well as to the higher legitimacy and transparency of social policy in municipalities. They do demand that the financial resources do not diminish during the integration.

Mutual Cooperation

Before the PCSWs can be integrated into the local administration, the federal government has to amend article 2 of the PCSW Act to enable the federated states to integrate the PCSWs into the municipalities.

The federal government is willing to cooperate. The cabinet of Social Integration Minister Willy Borsus has already done extensive research to find a solution on how the integration should look like. The cabinet has also been considering which steps are required to make this integration work. A mere transfer of powers from the federal government to the federated states will not be enough. An amendment of article 2 of the PCSW Act will not be sufficient either.

Without amending the Pacification Act an integration cannot be introduced in the communities with language facilities. However, the two-thirds majority required to amend the Pacification Act will not be easily achieved. But this is not the only problem. The constitutional experts disagree on whether it is necessary to change the Special Act on Institutional Reform as well, since this act awards the powers concerning the organization of local administrations to the federated states. Finally the federated states have divergent opinions on the integration. As mentioned before, the Brussels Capital Region does not support the integration of the PCSWs into the local administration. In Wallonia there is scepticism and opposition to the integration as well. Accordingly, the amendment will not be passed in a foreseeable time.

Conclusion

The plan by the Flemish government to integrate the PCSWs into the local administration, will have to surpass several obstacles. These obstacles will need to be addressed before the objective can be realised. As a result, the first critical voices are being raised. The opposition is afraid that this integration can lead to a loss of quality. Furthermore, there is no certainty that the federal government will be able to amend the relevant federal acts timely. The self-imposed 2019 deadline is perhaps not that realistic anymore.

Concise bibliography

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G. BOUCKAERT, R. MAES, K. VERHOEST & B. VERSCHUERE, Naar een optimale verhouding tussen gemeente en OCMW, Brussel, MVG, 2002, 179 p.

Gemeenten hebben minder overschotten, geraadpleegd op 3 december 2015 via http://deredactie.be/cm/vrtnieuws/binnenland/1.1536667

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M. MAHIEU, De openbare centra voor maatschappelijk welzijn: de organieke wet van 8 juli 1976 en aanverwante wetgeving, Antwerpen, Maklu, 1999, 287 p.

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Wet van 9 augustus 1988 tot wijziging van de gemeentewet, [de nieuwe gemeentewet,] de gemeentekieswet, de organieke wet betreffende de openbare centra voor maatschappelijk welzijn, de provinciewet, het Kieswetboek, de wet tot regeling van de provincieraadsverkiezingen en de wet tot regeling van de gelijktijdige parlements- en provincieraadsverkiezingen, BS 13 augustus 1988, 11.374.

Hand., Kamer. Comm. Voor de volksgezondheid, het leefmilieu en de maatschappelijke hernieuwing, 2014-2015, 17 juni 2015, 29.

Hand., Kamer. Comm. Voor de volksgezondheid, het leefmilieu en de maatschappelijke hernieuwing, 2014-2015, 7 oktober 2015, 18.

Vr. en Antw. Vl. Parl. 2014-2015, 5 februari 2015, 443

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