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Complaint and Appeals Mechanisms: Protecting the Right to Social Security [Zero Draft]

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Complaint and Appeals Mechanisms: Protecting the Right to Social Security [Zero Draft] ILO brief Social Protection Spotlight Date: January 2021 Complaint and appeals mechanisms: Protecting the right to social security [zero draft] Key points Access to sound and effective complaint and The Social Security (Minimum Standards) appeal mechanisms, as well as remedies, is core Convention, 1952 (No. 102) and the to any rights-based social security system. subsequently adopted more advanced standards lay out the basic principles and Redress mechanisms are an essential vehicle for parameters of the right to complaint and the effective exercise of every individual’s right to appeal as regards the quality and quantity of social security. They provide a means for users to benefits. seek an impartial review of the due application of the legal framework as a means to guarantee the These were most recently confirmed and human right to social security. further elaborated by the Social Protection Floors Recommendation, 2012 (No. 202) Such mechanisms also allow social protection which specifically advocates for redress systems, and the actors that are part of these, to mechanisms to be: impartial, transparent, be held accountable and “in touch” with their effective, simple, rapid, accessible and constituents through the detection and possible inexpensive. remedy of malfunctions, inefficiencies or violation of rights and obligations during the initial stages States have a duty to establish and effectively of collection and processing of complaints. implement the parameters of effective complaint and appeal mechanisms by International human rights and social security translating these principles into tangible standards enshrine the right to recourse and rights and obligations. independent review as well as the underlying principles for the design of social protection systems generally, and complaint and appeal mechanisms specifically. Social Protection Spotlight 2 Complaint and Appeal Mechanisms Introduction protection and can prevent the sense of unlawful or arbitrary deprivation of rights while enabling the Access to complaint and appeal mechanisms, as well as effective functioning of both the administration of social effective remedies, is core to any human rights-based security and of the justice system (ILO, 2011). For social protection system. Every individual is entitled to instance, if the provision of benefits is suspended, as social security and it is the State’s obligation to adopt permitted in article 69 of the Social Security (Minimum measures that enable protected persons to effectively Standards) Convention, 1952 (No. 102), the suspension claim their rights. In this sense, these mechanisms would need a legal basis and be justified according to provide stakeholders with the procedural vehicles to the particularities of the case. Accompanying the legal hold the social security institutions accountable for framework with an easily accessible and reader-friendly effectively complying with the applicable legal course of action to address complaint and appeals frameworks. They also serve to hold social protection related to social security issues enables users to gain administrators but also, to a variable extent, policy clarity and much needed confirmation about their rights makers accountable for how schemes are implemented and obligations. It is therefore of primary importance, and fundamental rights to social security are secured. notably in cases where benefits are refused, suspended Thus, to give effect to the human right to social security, or paid at lower rates or during shorter timeframes. In social protection systems need to incorporate effective this regard, the right to lodge a complaint or appeal is a mechanisms allowing to lodge and process complaints, fundamental part of ensuring procedural fairness, which and provide for independent appeal procedures. in turn is a pivotal dimension of strengthening the International human rights and social security legality of social protection systems (ILO, 2011). standards underline the right to efficient and accessible complaint and appeal procedures, and enshrine many guiding principles that can be used to design sound normative frameworks. In this respect, the overarching Box 1: Guaranteeing complaint and appeal principle established by ILO’s normative framework is mechanisms throughout international standards that the State assumes the general responsibility for the proper administration of national social security systems. This priority has also been highlighted by SDG The following international standards have long 16 aimed at promoting peace, justice and strong 1 since enshrined the right to recourse, as well as institutions, which is key for achieving SDG target 1.3, underlying procedural principles, such as the right namely “implementing nationally appropriate social to an independent tribunal and effective remedies, protection systems and measures for all, including to guide States in the design of accountability floors, and by 2030 achieve substantial coverage of the mechanisms. poor and the vulnerable” (ILO, 2010). International Human Rights Instruments Article 8 & 10 of the Universal Declaration of The role of complaint and appeal Human Rights, 1948 mechanisms: subjecting social protection Article 2(3) of the International Covenant on systems to the rule of law Civil and Political Rights, 1966 The State has the general responsibility to ensure the International Labour Standards adequate provision of benefits to those who are Article 70 of the Social Security (Minimum rightfully entitled to them. Complaint and appeal Standards) Convention, 1952 (No. 102) mechanisms play an essential role in securing observance of the rights and obligations of the State, of Article 23 of the Employment Injury Benefits those involved in the financing of the system, including Convention, 1964 (No. 121) employers, as well as of protected persons. Establishing Article 34 of the Invalidity, Old-Age and a declaratory right to social security is therefore not Survivors’ Benefits Convention, 1967 (No. 128) sufficient. Giving it substance means setting up a Article 29 of the Medical Care and Sickness system but also establishing procedural and legal Benefits Convention, 1969 (No. 130) guarantees to secure the right of complaint and appeal (ILO, 2019). Article 27 of the Employment Promotion and The proper implementation of social protection systems Protection against Unemployment Convention, requires States to provide protected persons or 1988 (No. 168) employers with legally established means for voicing Paragraphs 63, 112 to 114 of the Medical Care their grievances. This promotes claimants’ ownership of Recommendation, 1944 (No. 67) the system by reference to rights and obligations duly established by the national legal framework. Grievance Paragraph 27 of the Income Security and recourse mechanisms also foster accountability of Recommendation, 1944 (No. 69) the institutions responsible for delivering social Paragraph 7 of the Social Protection Floors Recommendation, 2012 (No. 202) __ 1 “Promote peaceful and inclusive societies for sustainable effective, accountable and inclusive institutions at all levels” development, provide access to justice for all and build (https://sustainabledevelopment.un.org/sdg16) Social Protection Spotlight 3 Complaint and Appeal Mechanisms What’s more, grievances also serve as a means to Realizing the right of complaint and appeal – a consistently evaluate and improve the adequacy of State’s responsibility to design and implement policies and service delivery, further ensuring the proper grievance mechanisms responsiveness of social protection systems to protected persons’ needs. Without the establishment of In addition to specifically establishing the right to institutional mechanisms to receive and process complain and appeal, Convention No. 102 sets out that complaints, a State can hardly ensure the proper these rights are an essential part of the State’s administration of social security services and responsibility in the administration of social security institutions. Complaints and appeal mechanisms are (articles 70 to 72). The State is responsible not only for also essential for holding all involved actors the due provision of benefits, but also for the accountable, including policymakers and programme institutions that manage services and must take all administrators. This forms an essential element of a measures required to ensure the respect of social rights-based approach to social protection. security rights and obligations. Oftentimes, national Furthermore, by monitoring the functioning of social security legislations, including in countries such grievance mechanisms, social security administrators as Spain or Viet Nam, have explicitely defined the and policy makers can also determine where the responsibility of the State in the proper supervision and implementation pitfalls remain and reflect on ways of administration of social security to include the reforming the social security system, including to settlement of complaints and disputes.2 secure greater compliance. In certain cases, the In carrying out there responsibility for the proper national judiciary may have the power to declare administraiton of social security systems, States have legislative or regulatory provisions as violating higher the flexibility to organize the adminsitration of both legal norms, as for example the national constitution or social insurance and social assistance according to a ratified international treaty. 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