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Out and About in the Welfare State

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Out and About in the Welfare State Andreas Pettersson Pettersson Andreas Out and About in the Welfare State Out and About in the Welfare Umeå University 2015 Umeå University Out and About in the Welfare State – the Right to Transport in Everyday Life for People with Disabilities in Swedish, Danish and Norwegian Law Andreas Pettersson Umeå Forum for Studies on Law and Society ISBN 978-91-7601-252-9 Umeå Forum for Studies on Law and Society Umeå University, SE-901 87 Umeå, Sweden Umeå 2015 www.juridisktforum.umu.se/english Out and About in the Welfare State – the Right to Transport in Everyday Life for People with Disabilities in Swedish, Danish and Norwegian Law Andreas Pettersson Akademisk avhandling som med vederbörligt tillstånd av Rektor vid Umeå universitet för avläggande av juris doktorsexamen framläggs till offentligt försvar i Hörsal C, Samhällsvetarhuset Fredagen den 8 maj, kl. 14:00. Avhandlingen kommer att försvaras på svenska. Fakultetsopponent: Jur dr Richard Sahlin, Juridiska institutionen, Stockholms universitet, Sverige. Juridiskt forum Umeå universitet Umeå 2015 Organization Document type Date of publication Umeå University Doctoral thesis 17 April 2015 Umeå Forum for Studies on Law and Society Author Andreas Pettersson Title Out and About in the Welfare State – the Right to Transport in Everyday Life for People with Disabilities in Swedish, Danish and Norwegian Law Abstract The aim of this thesis is to identify how a social citizenship for people with disabilities is shaped by the normative structures in the Swedish, Danish and Norwegian law governing their right to transport in everyday life. The thesis deals with three types of transport provided by the public to private individuals: transport services, car allowances, and cash benefits for reimbursing transport costs for people with disabilities. For each provision, the focus of the study is directed by the following questions: – Is there a rights/duties relationship between the public and the individual? Who is eligible for provision? How does public funding impact entitlement? Who is obliged to provide? What are the legal guarantees for entitlement? Despite objectives within Nordic law and policy that people with disabilities should be compensated for their impairments, and allowed to lead independent and autonomous lives, the results from the thesis show that the various transport provisions do not fully realize this. The legal relations between the public and those with needs for transport in their everyday lives are characterized by control, scrutiny and questioning. In order to protect the public budgets from costs, the eligibility criteria in the law are so constructed as to ensure that only certain needs for transport, and only some impairments, can meet them. The national, regional and municipal governments, and the administrative courts, subject people with disabilities to intrusive inquiries regarding personal details and other circumstances in their lives, in order to be able to judge which needs for transport are to be considered legitimate and which are not. The thesis shows that the individual rights to, especially, Swedish and Norwegian transport provisions are poorly protected against political decisions to cut funding. Local and regional self-governance is an interest that always competes with individual legal rights and make them weaker, irrespective of whether these rights can be appealed in administrative courts. The conclusion in the thesis highlights how a social citizenship is shaped in the law governing the right to transport for people with disabilities, and that this social citizenship does not reinforce independence and individual autonomy for those who are dependent on the various provisions to meet their needs for transport in their everyday lives. Keywords Disability, transport, everyday life, disability law, social law, transport law, comparative law, welfare state, legal criteria Language ISBN English 978-91-7601-252-9 Out and About in the Welfare State – the Right to Transport in Everyday Life for People with Disabilities in Swedish, Danish and Norwegian Law Andreas Pettersson Umeå Forum for Studies on Law and Society Umeå 2015 This work is protected by Swedish copyright law ISBN: 978-91-7601-252-9 Cover image: Sofia Present, 2008 Electronic version available at: http://umu.diva-portal.org/ Printed by: Umeå University Umeå, Sweden 2015 – We like the cars. The cars that go booom. L'trimm Table of Contents Table of Contents i Abstract vii Acknowledgements viii PART I – Departure 1 1 Introduction 2 1.1 Aim of the Thesis 5 1.2 Theory and Method 7 1.2.1 The Logic of Separation 7 1.2.2 Social Citizenship in Law 9 1.2.3 Redistribution and Recognition – a Theory Concerning Social Justice 11 1.2.4 Legal Cultures in the Nordic Welfare States 16 1.2.5 Framework Law and Social Rights in the Nordic Welfare States 20 1.2.6 Method and Sources for Parts II, III and IV 22 2 Principles of Social Law and Disability Law in Nordic Scholarship 25 2.1 Important Principles in Nordic Social Law 27 2.2 Local Self-governance and Law in the Welfare States 31 2.2.1 Administrative Discretion and the Welfare State 33 2.2.2 National Supervision of Municipal Self-governance 34 2.2.3 Problems with Supervision of Municipalities – a Swedish Example 40 2.3 Disability Law and Policy in Sweden, Denmark and Norway 42 2.3.1 Disability Normalization – a Nordic Ideological Movement 43 2.3.2 Important Principles in Nordic Disability Law 48 2.3.3 Compensation and Mainstreaming from an Everyday Life Perspective 50 3 Development of Law and Policy for People with Disabilities in Sweden, Denmark and Norway 52 3.1 Sweden – Universalism with Exceptions 52 3.2 Denmark – from Nationalization to Decentralization 59 3.3 Norway – from Differentiation to Unification 63 3.4 Transport Policy and Law for People with Disabilities in Sweden, Denmark and Norway 67 PART II – Transport Services for People with Disabilities 81 4 The Law Governing Transport Services in Sweden, Denmark and Norway – Emergence and Development 82 4.1 Special Transport Services in Sweden – from Voluntary Operation to Municipal Obligation 82 4.2 National Special Transport Services in Sweden – from National Experiment to Decentralization 85 4.3 Individual Transport Services for People with Severe Mobility Impairments in Denmark – from Voluntary Operation to Legally Mandated Services 90 i 4.4 Special Public Transport for People with Disabilities in Norway – from Voluntary Operations to County Services 96 5 Transport Services as Social Rights in Sweden 103 5.1 Special Transport Services – a Rights/Duties Relation? 103 5.2 National Special Transport Services – a Rights/Duties Relation? 107 5.3 Who Is Eligible for the Special Transport Services? 110 5.3.1 Impairments which Are not of a Temporary Nature 110 5.3.2 Considerable Difficulties 111 5.3.3 Traveling with Someone Else 113 5.4 Who Is Eligible for the National Special Transport Services? 113 5.5 Impact of Funding on the Right to Special Transport Services 117 5.6 Impact of Funding on the Right to National Special Transport Services 118 5.7 Who Is Obliged to Provide Special Transport Services? 118 5.8 Who Is Obliged to Provide National Special Transport Services? 119 5.9 Legal Guarantees for Entitlement to Special Transport Services 120 5.10 Legal Guarantees for Entitlement to National Special Transport Services121 6 Transport Services as Social Rights in Denmark 122 6.1 Individual Transport Services for People with Severe Mobility Impairments – a Rights/Duties Relation? 122 6.1.1 A Minimum of 104 Journeys per Year 123 6.2 Who Is Eligible for the Individual Transport Services for People with Severe Mobility Impairments? 125 6.3 Impact of Funding on the Right to Individual Transport Services for People with Severe Mobility Impairments 126 6.4 Who Is Obliged to Provide Individual Transport Services for People with Severe Mobility Impairments? 127 6.5 Legal Guarantees for Entitlement to Individual Transport Services for People with Severe Mobility Impairments 128 7 Transport Services as Social Rights in Norway 129 7.1 Special Transport Services for People with Disabilities – a Rights/Duties Relation? 129 7.2 Who Is Eligible for the Special Transport Services for People with Disabilities? 131 7.3 Impact of Funding on the Right to Special Transport Services for People with Disabilities 133 7.4 Who Is Obliged to Provide Special Transport Services for People with Disabilities? 135 7.5 Legal Guarantees for Entitlement to Special Transport Services for People with Disabilities 136 PART III – Car Allowance for People with Disabilities 137 8 The Law Governing Car Allowances in Sweden, Denmark and Norway – Emergence and Development 138 8.1 Car Allowance in Sweden – from Tax Relief to Social Benefit 138 ii 8.2 Car Allowance in Denmark – from National Tax Relief to Municipal Loans 149 8.2.1 Vehicles as Technical Assistive Devices and Durable Consumer Goods 158 8.3 Car Allowance in Norway – Means-tested Benefits 160 9 Car Allowance as a Social Right in Sweden 170 9.1 Car Allowance – a Rights/Duties Relation? 171 9.2 Who Is Eligible for Car Allowance? 172 9.2.1 Five Categories of Eligibility 176 9.3 Impact of Funding on the Right to Car Allowance 181 9.4 Who Is Obliged to Provide Car Allowance? 183 9.5 Legal Guarantees for Entitlement to Car Allowance 185 10 Car Allowance and Vehicles as Technical Assistive Devices and Durable Consumer Goods as Social Rights in Denmark 187 10.1 Car Allowance – a Rights/Duties Relation? 187 10.1.1 Car Purchase Allowance – a Rights/Duties Relation? 191 10.1.2 Exemption from
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