Rescaling Social Welfare Policies in Spain

Transcription

1 A comparative study on the path towards multi-level governance in Europe Rescaling Social Welfare Policies in Spain National report provided by the Team of the Ministry of Labour and Social Affairs under the coordination of: Margarita Bravo Torres Elderly People and Social Services Institute (IMSERSO) Correspondence to Madrid February 2006

2 Table of contents Introduction 3 1 CHANGING CONTEXTS: DEMOGRAPHY, ECONOMY, SOCIETY AND POLICIES Socio-demographic guidelines and trends The state, its organisational structure and founding legislation References to the Spanish Constitution The market, commodification and labour market performance Unemployment benefits on a contributory basis Unemployment benefits on a welfare basis 10 2 INSTITUTIONAL ANALYSIS. PLAYERS AND GOVERNMENT MEASURES Identification of the territorial institutions and their development Origin of the Autonomous Communities Competences and limitations of the Autonomous Communities Faculties of the Cortes Generales (Houses of Parliament) over the Autonomous Communities Areas which are exclusively the jurisdiction of the State Areas for which the Autonomous Communities may assume jurisdiction Local Authorities Competences Institutional change Autonomous Communities Local Corporations The flow of resources towards territorial levels Horizontal institutions and players (subsidiarity) on each level 20 3 THE RESCALING PROCESS IN SELECTED POLICY FIELDS Territorial organisation of the four policies in Spain Non-contributory Social Security benefits Territorial organisation in the field of employment policies Territorial organisation in the field of social services Territorial organisation of care for the elderly Social Welfare and local policies against poverty in Spain Social Welfare Local policies to combat poverty Employment policies Care for older persons Towards a Public Social Services System APPENDIX 48 2

3 Introduction The departure point of the period to be analysed is of the utmost historical importance for Spain, i.e. the restoration of the democratic period whose focal point is the 1978 Constitution, the legislation par excellence that has governed and responded to the whole process of socioeconomic evolution that has taken place in Spain over these years. Social policies have undergone great transformations in Spain, following the consolidation of democracy and particularly, after the Spanish Constitution of 1978, which acknowledged a series of fundamental rights for citizens: education, health, housing, social welfare, etc., thus propitiating a new framework for citizen rights in an incipient democracy. On the other hand, this Constitution also established the State of Autonomous Communities, which was a new framework for the territorial organisation of the Public Administrations. It also meant that the Local Corporations, as the most local of the Public Administrations, took full responsibility, in some matters that were the object of study as public services to citizens, for the management of the most basic public services. We should also highlight the following general characteristics that have had a decisive influence on this process: In this period, Spain went from being a country of emigrants (even in 1978, calculations indicate that there were 2 million Spaniards living abroad, while there were hardly 150,000 foreign residents in Spain) to becoming a country of immigration, with the return of a great number of Spaniards who had been living abroad and an increase in the foreign population, to approximately two million, according to data of the most recent census in It is evident that despite the change of direction of our migratory balances, the Spanish population has aged significantly, which has serious repercussions, especially on the job market, on the ratio of pensioners and contributors to the social security system and on social welfare services. We must also add up the important changes that have occurred in the composition of Spanish families, which traditionally used to be the main support in care for the elderly, childcare and in general, in any situation of need that occurred in extended families where various generations often lived together, which is a very uncommon situation nowadays. The area of education is possibly one of the areas in which the greatest achievements have been made. The traditionally high rates of illiteracy and of people who barely knew how to read and write are now history and the effort made by the families themselves, which is very important, and by the whole of Spanish society, with the advent of mandatory schooling and aids towards education such as grants, etc. now mean that many see the dream of access to higher education come true. Another very noteworthy aspect is the change that has occurred in the role that women play in society. Despite the fact that these changes are still not very noticeable at the level of the overall female population, because of the effect of the older groups, the behaviour of the younger female population has led to a transcendental change that is having a tremendous effect on our society (there are more women than men in university education and for the first time in the history of Spain, the employment rates of young women are the same as those of the men of the same ages). The last aspect to be highlighted refers to the significant change that has occurred in the economic structure of our country and, in general, to the increase in the levels of income and therefore in the standards of living of Spanish citizens. 3

4 These changes meant that even back in the year 1978 when the Constitution was signed, the relative participation of agriculture had gone down from 17.2 % in 1964 to 9 % of the GDP in 1978, that the services sector had reached 51.4% of the overall economy compared to 42.6 % in 1964 and that the relative participation of the industrial sector remained at around 40 % of GDP. As a result of the development that began in the decade of the sixties, the Gross Domestic Product increased at an annual rate of 5.9 % in actual terms in those 20 years. Similarly, there has been a very positive evolution in the levels of consumption registered by households and in the standards of equipment in homes. In the last 25 years, not only have these changes been consolidated; they have undergone very significant progress. Thus, the services sector has gradually increased its participation in GDP to reach 64.2 % in 2002, mostly due to two decisive factors; on the one hand, the greater success of tourist activity in Spain and on the other hand, as a consequence of the process of tertiarisation of industrial companies, where certain services that used to be provided by the latter have been transferred to the corresponding service branches (corporate management, IT and communications, all kinds of corporate advisory services, etc.), in the context of the improved competitiveness of industrial activity. However, as well as coming closer to the economic structures of neighbouring developed countries, all sectors of economic activity have continued to register a considerable increase in activity, so much so that the gross domestic product generated by Spaniards has registered an average annual increase of 2.6 % at constant prices, even after taking into consideration the oil crises suffered at the end of the seventies and the recession of Moreover, in the European context, the Spanish gross domestic product per inhabitant with purchasing power parity, measured against the European average, has gone up 13 points since 1980, reaching 84 percent of the average in 1984, which reflects the speed of the process of convergence that has taken place. We should also mention the changes that have occurred in the field of employment, especially as regards the composition of active workers by foreign nationalities (0.3 % of the total in 1978, compared to 2.3 % in the 4 th Quarter of 2002); the increase in the female employment rates (28.1 % in 1978, compared to 42.3 % in 2002) and, as a negative aspect, the difficulties encountered by young people trying to enter the job market after their studies, as young Spaniards take more than 28 months to find reasonable employment. Another of the most characteristic aspects of the Spanish job market is the low proportion of people working on a part-time basis, as well as the high rates of temporary employment. 4

5 1 CHANGING CONTEXTS: DEMOGRAPHY, ECONOMY, SOCIETY AND POLICIES 1.1 Socio-demographic guidelines and trends Size and evolution of the elderly population in Spain In the year 2003, there were 7,276,620 people aged 65 and over on the record in Spain (see Graph 1.1); the elderly already represent 17.0% of the total population, and this percentage and the absolute figures will not cease from increasing in the coming decades. National demographic data indicated a total population of people in These figures are official and were approved by means of a Royal Decree. The projected figures for the population have taken the new demographic situation into account: the higher longevity of the elderly, increasing immigration among the young and adult populations and a birth rate that is slightly on the upturn after having reached its lowest rate ever in the final years of the previous decade, the end of the 20th century. In the year 2050, there will be 16,394,839 elderly people in Spain, according to the Instituto Nacional de Estadística (INE hereafter) projection based on the 2001 census (published in August 2004), of a total of 53,147,442 inhabitants, i.e. the elderly will represent 30.8 % of the population. Although the changes in the birth rate will not affect the size of this contingent of elderly people (those who were born in the last few years will not yet have reached the age of 65 years in 2050), the uncertainty of the destination of the present-day wave of immigrants means that it is impossible to know if this figure will be maintained, or if it will increase or decrease, because if the immigrants remain, many of them will be aged over 65 in the middle of the century. The number of elderly may be higher, because the drop in the mortality rate of the elderly continues to fall, which lends a higher survival rate to the cohorts, i.e. life expectancy at the age of 65 years is increasing at an even faster rate than the increase in life expectancy at birth, on the basis of which INE s new projected figures have been prepared. There is clearly a process by which the elderly population is ageing still further. The octogenarians are the group that grew the most in the last decade, while the group of young people up to 20 years of age was the group that lost the most population. The number of people aged 80 years or over increased by 53 % between 1991 and 2003, when the increase in the total population was 9.9 %, including the immigrant population. There are already 1,756,844 octogenarians in Spain, a figure that represents 4.1 % of the total population. In 2050, the percentage will have increased to 11.4 % (more than 6 million people). According to projected figures from the United Nations (Updated in 2002), with 12.6 % of octogenarians, Spain would come after Japan (15.5 %), Italy (13.5 %) and Switzerland (13.4 %). 5

6 Figure 1 Evolution of the older population, (in thousands) Miles y Años * From, 1900 to 2000, actual data; from 2010 to 2050, projected data; from 1970 onwards, de jure population.. Source: INE: INEBASE: Population figures. Population according to sex and age from 1900 to INE, INE: INEBASE: Projected population figures calculated on the basis of the Population 2001 Census INE, The territorial structure of the elderly in Spain has hardly varied. Catalonia, Andalusia and Madrid are still the Autonomous Communities with the greatest number of elderly on register in their Municipalities; there are more than one million in each of the first two (2003) (Table 1.2). Castile and Leon (22.9 %), Asturias (22.1 %), Aragon and Galicia (21.3 %) are proportionately the most aged regions; in all of these, at least one in five citizens is aged 65 years or over. On the other end of the scale, the Canary Islands (12.0 %) are still the community with the lowest proportion of elderly, followed by Murcia and the Balearic Islands (14.1 %), Madrid (14.5 %) and Andalusia (14.8 %). See appendix for Graphs and Tables corresponding to Indicators of social services for the elderly in Spain Indicators of social services for the elderly in Spain Since 1999, the Observatory on the elderly has been recompiling data on social services with a view to drawing up on a systematic basis a set of indicators on the network of services aimed at the elderly in Spain. Graphs nos. 1 and 2 and their corresponding explanatory tables, nos. 3 and 4, offer a first indication of our resources, which will be analysed in greater detail below. This data is supported by all existing data from other sources, which, despite the fact that there are some difficulties regarding comparability, we believe offers valuable information in order to build a more complete historical perspective that goes back as far as the seventies, in some cases (see appendix). Finally, we should point out that despite the fact that the data presented offer the total sums of the potential users of these services, as a total of 680,000 people were attended as of January 2004, under no circumstances does this figure mean that 9 % of our population of people aged 65 and over have their needs covered in situations of dependence, as the majority of these services (with the exception of the nursing homes) are services of insufficient intensity and some are also complementary in nature, in order to be able to guarantee permanence in the elderly people s homes. 6

7 1.2 The state, its organisational structure and founding legislation The promulgation of the Constitution in 1978 laid the foundations of the Welfare State. From then onwards, and particularly in the decade of the eighties, measures were implemented in order to configure a decentralised, solidarity-based socio-economic model. The Spanish Constitution of 1978 introduced important new aspects regarding how the State is organised at territorial level and was the framework for the principles and obligations that guarantee citizens rights. Its essential characteristics are that it is democratic, monarchical, autonomic, guaranteeist and ensures the balance of powers References to the Spanish Constitution Fundamental rights and obligations: Spain is defined as a social and democratic State, subject to the rule of law... with all of the implications derived therefrom as regards acknowledgement of social rights. Art It is incumbent upon the public authorities to promote conditions which ensure that the freedom and equality of individuals and of the groups to which they belong may be real and effective. Art Human dignity, man s inviolable and inherent rights, the free development of his personality, respect for the law and for the rights of others are fundamental to political order and social peace. Art Spaniards are equal before the law and may not in any way be discriminated against on account of birth, race, sex, religion, opinion or any other condition or personal or social circumstance.. Governing Principles of Economic and Social Policy: Art The public authorities shall maintain a public Social Security system for all citizens which will guarantee adequate social assistance and benefits in needy situations, especially in cases of unemployment. On the other hand, the Constitution acknowledges social protection for all sectors and especially for the most vulnerable (family and children,- Art. 39; young people, Art. 48; the handicapped.- Art 49; the elderly, - Art. 59). The organisational structure of the State and its founding legislation therefore lie in the constitutional text par excellence and its ulterior implementing rules. Territorial organisation of the State: Art The State is organized territorially into municipalities, provinces and any Autonomous Communities that may be constituted. All these bodies shall enjoy self government for the management of their respective interests. The competencies of the Public Powers in social affairs are established on three levels: State competences : Art All Spaniards have the same rights and obligations in any part of the State territory. 7

8 Art The State holds exclusive jurisdiction over regulation of the basic conditions guaranteeing the equality of all Spaniards in the exercise of their rights and in the fulfilment of their constitutional duties. Autonomous Communities competences: Art The Autonomous Communities hold exclusive jurisdiction over Social Assistance. Local Corporations competences: Art The Constitution guarantees the autonomy of the municipalities, which shall enjoy full legal personality. That is to say, the frame of reference of the role of the State as regards the regions and Municipalities is the constitutional text in which after having restored the right of autonomy of the nationalities and regions of Spain (art. 2 of the Constitution), it opted for a system of decentralisation that brings policies closer to citizens in order to facilitate management and efficiency. The matters in which the State holds exclusive jurisdiction are very few, but of vertebral importance to the State. Jurisdiction for some matters is shared and the text grants jurisdiction for others directly to the Autonomous Communities. The Statutes of Autonomy, which are supreme Organic Laws in their respective territories, have carried out a process of development of some competencies pertaining exclusively to the Autonomous Communities and others that are shared. 1.3 The market, commodification and labour market performance The Constitution establishes a very well defined framework of competencies, differentiating between those that pertain to the State and those that pertain to the Autonomous Communities. By virtue of this distribution of competencies, the State is entrusted with legislative regulation of all matters related to work and employment and with the setting of regulations and the management of the Social Security, while the Autonomous Communities are entrusted with management of employment. After 1990, competencies started to be transferred to the Autonomous Communities and nowadays, professional vocational training and the computation of active policies as a whole are directly administered by 16 of the 17 Autonomous Communities. Moreover, public employment services have been created at autonomic level, the structure, organisation and jurisdiction of which are determined by Chapter III of Employment Act 56/2003, of 16 th December. The Spanish unemployment system distinguishes between unemployment benefits on a contributory basis and unemployment benefits on a welfare basis Unemployment benefits on a contributory basis Benefits on a contributory basis are known as unemployment benefit. In order to qualify for this benefit, as well as meeting the stated requirements referred hereafter, the worker must have contributed to the Social Security for this contingency beforehand. There is protection for situations of unemployment of those who are able and willing to work, but who lose their employment on a temporary or final basis, or whose working day is reduced temporarily by at least a third, according to the terms of an employment regulation file, with the corresponding loss or analogous reduction in wages for some of the causes that are established as legal situations of unemployment. Groups may benefit from unemployment benefit as long as they are in one of the legal situations of unemployment that have been defined, that they have complied with the minimum contribu- 8

9 tion period required for these contingencies and that they are not in a situation of incompatibility. The financial benefit for total or partial unemployment also means that the Public State Employment Services or the Marine Welfare Institute pays for sea workers their contribution to the Social Security, as long as they are receiving unemployment benefit, at a rate of 100 percent of the employers contribution and 25 percent of the worker s contribution. The requirements in order to qualify for unemployment benefit are as follows: To be affiliated and registered or in a situation that is assimilated to registration To be in a legal situation of unemployment To provide proof of willingness to actively look for employment and to accept a suitable job, and to sign a commitment to activity To have covered a minimum period of 12 months contribution in the six years before the legal situation of unemployment To have reached the ordinary age that is required in each case in order to qualify for the contributory retirement pension. Not to be included in any of the causes for incompatibility. The legal situation of unemployment must be proven in order to qualify in the terms that are laid down in legislation. As well as the termination of an employment relationship, suspension of an employment relationship and reduction in working hours, the following are also considered to be legal situations of unemployment: The return to Spain of workers whose employment relationship abroad has been terminated Release from prison Periods of inactivity of discontinuous permanent workers The length of time that the benefit is received depends on the employment period in which the worker contributed to Social Security regimes contemplating this contingency in the six years previous to the legal situation of unemployment or to when the obligation to contribute ceased, or, where applicable, since the commencement of the right to previous unemployment benefit, in accordance with the following scale: Employment period in which contributions were made in the last 6 years Between 360 and 539 days Length of benefit 120 days Between 540 and 719 days 180 days Between 720 and 899 days 240 days Between 900 and 1079 days 300 days Between 1080 and 1259 days 360 days Between 1260 and1439 days 420 days Between 1440 and1619 days 480 days Between 1620 and1799 days 540 days Between 1800 and 1979 days 560 days Between 1980 and 2159 days 660 days 2160 and over 720 days 9

10 The amount of the benefit depends on the workers calculation basis. The amount to be received will be 70 percent of the calculation basis in the first 180 days. From the 181st day onwards, it will be 60 percent of the calculation basis. The benefit will be paid by the Public State Employment Service or the Marine Welfare Institute. The procedure for applying for and being entitled to the benefit implies that the worker must perform the following: He/she must register as a job seeker and apply for the benefit at the Employment Office within the fifteen working days following the legal situation of unemployment, return from abroad or release from prison. On the date of the application, he/she must sign a commitment to activity which consists of the obligation that the receiver of the benefit acquires to actively seek employment, accept a suitable job and participate in specific initiatives for motivation, information, guidance, training and professional reconversion or insertion in order to increase his/ her employability. The regulations also foresee the possibility of unemployment benefit being paid in a single lump sum as a measure to promote employment in the social economy and self-employment Unemployment benefits on a welfare basis 1 Workers who are registered as job seekers within one month, who have not refused a suitable job offer or refused to participate without justified reason in professional promotion, training or reconversion initiatives and who are not receiving income of any kind above 75 percent of the Minimum Multi-sectoral Wage, excluding the part that is proportionate to two extraordinary payments, on a monthly basis, are in some of the situations that are foreseen in the regulations corresponding to the modalities hereafter mentioned. It consists of a financial benefit and of payment to the Social Security of the contribution corresponding to healthcare benefits, family protection and, where applicable, retirement. The duration, amount and contribution to the Social Security depend on the type of allowance to which the person is entitled. The following types of unemployment allowance are available: Workers whose unemployment benefit has expired and who have family dependents. Workers over the age of forty-five whose unemployment benefit for at least twelve months has expired and who do not have family dependents. Emigrant Spanish workers that are returning from countries that do not belong to the European Economic Area or with which Spain does not have an agreement on unemployment protection, who provide proof of having worked for at least twelve months in the last six years in such countries since the last time they left Spain and who are not entitled to unemployment benefit. Workers who have not completed the minimum contributory period in order to qualify for a contributory benefit when the legal situation of unemployment occurs. Ex-convicts Workers that are declared to be fully capable or with partial incapacity as a result of a process to revise a situation of severe invalidity, permanent total or absolute incapacity to exercise their usual profession due to improvement of the latter. Special allowance for workers over the age of forty-five whose unemployment benefit of twenty-four months has expired. 1 For a comparative study, see appendix: Indicators for Employment in Spain

11 Unemployment allowance for workers over the age of fifty-two years. Lastly, and as a measure to provide incentives for employment of workers encountering particular difficulties in finding employment, the Active Insertion Income Programme has been set up. The aim of this programme is to increase the opportunities for unemployed workers with special economic needs and difficulty in finding employment to return to the job market. This programme includes active employment policies run by the public employment services with a view to increasing their opportunities to return to the job market and, where applicable, a financial allowance managed by the Pubic State Employment Service, known as the active insertion income, which is linked to unpaid participation in initiatives in active employment policies. In order to qualify for this programme, unemployed workers under the age of sixty-five years must meet the following requirements on the date of application to join this programme: To be at least forty-five years of age To be a registered job-seeker at the employment office for an uninterrupted period of twelve or more months Not to be entitled to unemployment benefits or allowances or to agricultural benefits. Not to be receiving any kind of income over the monthly amount of 75 percent of the Minimum Multi-sectoral Wage, excluding the part that is proportionate to two extraordinary payments 11

12 2 INSTITUTIONAL ANALYSIS. PLAYERS AND GOVERNMENT MEASURES 2.1 Identification of the territorial institutions and their development Origin of the Autonomous Communities The Constitution of 29th December 1978 transformed the centralised character of the Spanish government by granting greater powers to the autonomous communities and implementing a decentralisation model. The right to autonomy of the nationalities and regions that make up the Spanish nation that was acknowledged in the Constitution represented a radical change from the previous regimen, which had been highly centralised. The aim was to provide a solution for a constant problem throughout the history of Spain, derived from the different identities that are present in the Spanish nation. The structuring of the Spanish State in Autonomous Communities is one of the most important part of the Constitution. Article 2 acknowledges and guarantees the right to autonomy of the nationalities and regions that make up the State. This provision is based on the premise of the indissolvable unity of the Spanish nation. The text of the Constitution establishes the powers that may be taken over by the Autonomous Communities and the attributions that are exclusive to the State (Title VIII, articles 137 to 158). Following the ratification of the Constitution, the process of establishment of the 19 Autonomous Communities was completed and their Statues were passed. There are 19 Autonomous Communities. Of these, 17 are autonomous communities in the strict sense, and two are cities. However, there is no legal difference between the autonomous communities and the cities. Autonomous Communities: Andalusia, Aragon, Asturias, Balearic Islands, Canary Islands, Cantabria; Castile-La Mancha, Castile-Leon, Community of Catalonia, Valenciana, Extremadura, Galicia, La Rioja, Madrid, Murcia, Navarra and the Basque Country. Autonomous Cities: Ceuta and Melilla Nevertheless, the Autonomous Communities did not come about immediately after the Constitution was passed in The Councils of the then provinces, - the local legislative power and two thirds of the Municipalities that were in the latter had to formulate the corresponding legal initiative to become Autonomous Communities. The Cortes Generales of Spain, i.e. the national legislative power, passed the Constitution of autonomies and the Statutes of each one. The Statutes de Autonomy that were issued by each local Council then became the basic legislation in each community, bringing in mind the SC as a common framework. Within less than seven years, the process of establishment of the 19 Autonomous Communities was complete and their Statutes were passed, in the following order: 1. Statute of Autonomy for the Basque Country, Statute of Autonomy of Catalonia, Statute of Autonomy for Galicia, Statute of Autonomy for Andalusia,

13 5. Statute of Autonomy for Asturias, Statute of Autonomy for Cantabria, Statute of Autonomy of La Rioja, Statute of Autonomy for the Murcia Region, Statute of Autonomy of the Community of Valencia, Statute of Autonomy of Aragon, Statute of Autonomy of Castile - La Mancha, Statute of Autonomy of the Canary Islands, Reintegration and Improvement of the Foral Regimen in Navarra, Statute of Autonomy of Extremadura, Statute of Autonomy for the Balearic Islands, Statute of Autonomy of the Community of Madrid, Statute of Autonomy of Castile - Leon, Statute of Autonomy of Ceuta, Statute of Autonomy of Melilla, For a better understanding of our territorial model, we mention broadly speaking the way competences among the different territorial levels are shared, including some complementary clarifications. 2.2 Competences and limitations of the Autonomous Communities The various Autonomous Communities in Spain benefit from the same common framework that limits their autonomy. Article 148 of the Spanish Constitution indicates the areas in which the Autonomous Communities assume jurisdiction and article 149 indicates the areas in which the Spanish State holds exclusive jurisdiction. None of the communities is more autonomous than any other and there are no different levels of autonomy. However, the areas of competence of the Autonomous Communities that are not governed by themselves are governed by national laws. That is why there are differences in areas such as education, culture and budgets, mainly. The differences are due to two factors: Because the Autonomous Communities do not legislate on the areas of competence to which they are entitled according to the Constitution. Because the communities legislate on areas of competence that are not exclusive to the national government. In the former case, if, for example, a community does not legislate on territorial waters or forestry resources, it no longer receives the central government budget for these areas and the national government takes charge of managing these areas. The second case occurs when an Autonomous Community legislates on matters that are not exclusive to the national government, such as secondary education or taxation on workers. 13

14 2.2.1 Faculties of the Cortes Generales (Houses of Parliament) over the Autonomous Communities The Cortes Generales, i.e. the Senate and the Congress of Deputies, have three attributions over the Autonomous Communities, according to the terms of article 150 of the Constitution. They can confer upon all or any of the Autonomous Communities the power to enact legislation for themselves on national laws. They may delegate to the Autonomous Communities, through an organic law, powers appertaining to the Spanish State. They may enact laws establishing the principles necessary for harmonizing the rule-making provisions of all of the Autonomous Communities Areas which are exclusively the jurisdiction of the State The Spanish State reserves, nevertheless, a series of exclusive faculties and competences that may not be exercised by the Autonomous Communities. The most relevant include the following: Regulation of the basic conditions guaranteeing the equality of all Spaniards in the exercise of their rights and in the fulfilment of their constitutional duties. Nationality, immigration, emigration, status of aliens, and right of asylum. The Armed Forces; international relations and the Administration of Justice. Commercial, criminal and penitentiary legislation; procedural legislation. General planning of economic activity. The standing currency system and the official weights, measurements and timetables. The communication channels and public works that are located in more than one Autonomous Community. Legislation on the media. Public security, without prejudice to the autonomic policies. Defending the Spanish cultural heritage, without prejudice to management by the Autonomous Communities. Authorisation for popular consultations through the holding of referendums Areas for which the Autonomous Communities may assume jurisdiction The areas for which the Autonomous Communities may assume jurisdiction are explained in article 148 of the Spanish Constitution. The most relevant competences or faculties are as follows: Organisation of their institutions of self-government. Changes in the municipal boundaries within their territory. Public works within their own territory. Use and regulation of agriculture and livestock raising. Use and regulation of woodlands and forestry. Environmental protection management. Planning, construction and exploitation of hydraulic resources. 14

15 Promotion of the development of the Autonomous Community within the objectives set by national economic policy. The promotion of culture. The provision of Social Welfare. The administration and control over local police forces. As well as the above, the Autonomous Communities enjoy financial autonomy in developing and carrying out their attributions. The resources of the Autonomous Communities come from the following sources: Taxes transferred by the State. Local taxes that are collected and administered by each Autonomous Community. Transfers from the interterritorial compensation fund, from the State budget. Income from heritage. Profits from credit operations. All of the Autonomous Communities are entitled to legislate on matters that are necessary in regulating the above items Local Authorities Competences At local territorial level, it is Law 7/1985, of 2nd April, that regulates the bases of the Local Regimen, the rule that marks out the competences of the authorities that are closest to the citizens. Article 25.2 of this law reads literally as follows: The Municipality shall, in any case, exercise competences in the terms of the legislation of the State and of the Autonomous Communities, on the following matters: k) the provision of social services and social promotion and reinsertion. In its article 26.1, it reads: The Municipalities must provide the following services, either on their own or on an associated basis: c) in Municipalities with a population in excess of 20,000 inhabitants.the provision of social services. In short, the process has diversified the initiatives of Public Administrations (General, Autonomic and Local) in the exercise of their competences and therefore, the current situation of the social services presents initiatives that are managed and carried out by the various public entities. 2.3 Institutional change As well as the Constitution, which represents a transcendental change in all orders, various changes for the implementation of same have been introduced, at the three territorial levels in question: state, autonomic and local. Those changes were promulgated with the objective of facilitating the application of the principles and mandates expressed therein. The constitutional text has not been changed to date and remains in force in its entirety. The last 25 years have witnessed a continuous, scaled regulatory process of development of the constitutional text and of the Statutes of Autonomy that were promulgated immediately after the Constitution entered into force. It has been an ongoing, yet coherent process, consisting of the progressive decentralisation of management of the welfare policies, which can be said to have not yet finished. The powers have been transferred from the State to the Autonomy and in some cases, to the Municipalities. 15

16 The State has reserved its right as coordinator and the establishment of a legal framework of minimums. Basically, it is a question of transferring management to bring it closer to the citizen, which is why the Institutions that are linked to the citizen at territorial level are chosen, which means that credit and human resources are also transferred. Funding is convergent. This means that there is state funding, which is sometimes complemented by autonomic and/or local funding. This depends on the area in question. Regulatory power is not transferred; it is maintained in each territory according to the terms of the Laws that govern the various areas. There has been a transfer of financial resources towards the Autonomous Communities and/or Town Councils. We would like mention under this title in a special way the attention to the elderly and the care of dependents from the perspective of the distribution of competences among the three public administrations. In order to determine the different public responsibilities as regards dependency, we must first of all consider how competences in these areas are distributed between the State and the Autonomous Communities. A quick look at the distribution reveals that there are important differences in the levels of jurisdiction, as may be seen in the following summary: Health matters. The State is responsible for establishing the bases and coordinating health matters (article SC) and the Autonomous Communities are responsible for developing and operating the healthcare systems, according to the terms laid down in the corresponding Statutes de Autonomy. Social Security. The State has jurisdiction to establish the basic legislation and the financial system (article SC), while the Autonomous Communities are responsible for developing and implementing its services, according to the terms of their Statutes. In this section, we must bear in mind the broad constitutional definition of this matter ( The public authorities shall maintain a public Social Security system for all citizens which will guarantee adequate social assistance and benefits in needy situations, article 41 CE), which may allow for the inclusion of new services such as those referring to the care of dependents and the precedent for which would be the retirement and invalidity pensions and the benefits per dependent child in the non-contributory mode. 2 Social services. The Constitution does not reserve for the State jurisdiction in the field of social services; therefore, all of the Autonomous Communities have included in their statutes, albeit under different denominations, exclusive jurisdiction in this field, with the exception of matters corresponding to the Social Security that have followed the shared regimen appertaining to this field (article SC). Labour legislation. The State is responsible for labour legislation (article SC) and the Autonomous Communities may implement the latter, if this is established in their statutes. By virtue of their statutes, the Autonomous Communities may reserve exclusive jurisdiction in the fields of housing and urban planning, tourism and leisure, and also, although to a different extent, as regards associations and foundations. This diversity in the levels of jurisdiction configures a highly complex space that makes it difficult to design transversal institutional responses aimed at meeting the needs that are generated 2 Law 26/1990, of 20th December, by which the non-contributory Social Security benefits were established, indicated in its recitals that such benefits were provided on the basis of implementing the guiding principle contained in article 41 of our Constitution 16

17 by dependency. We should remember that jurisdiction implies the responsibility to guarantee the rights that are acknowledged, including the total or partial funding of the services that are needed to meet them. To sum up, the State has jurisdiction on labour legislation, basic legislation for healthcare and the Social Security and in this latter case, also as regards the financial system of the Social Security. According to the terms laid down in their Statutes of Autonomy and the interpretation made by the mixed committees on transfers, the Autonomous Communities hold jurisdiction in the field of the implementation of legislation on labour and industrial relations, legislative development and implementation of basic legislation on healthcare and the Social Security, with the exception of the rules that configure the financial system of the latter. As regards social services, all of the Autonomous Communities have included in their Statutes of Autonomy exclusive jurisdiction on this matter, albeit under different denominations some of which are clearly excessive, 3 on the basis of which they have promulgated Laws on social services and/or social action. One issue that is of great interest in the subject at hand refers to the interpretation that should be made of the jurisdiction referring to the Social Security Social Services (IMSERSO), as both matters are subject to different systems of jurisdiction, as we have already explained. If we sidestep the interesting debates on this issue and stick to the criterion established in the agreements of the mixed committees on transfers, we see that when the Social Security social services were transferred, priority was given to the origin and thus the shared jurisdiction regimen of article of the Constitution was followed. However, in order to specify the scope of the Social Security services that were transferred, it is necessary to analyse the corresponding Agreements that were established by the aforementioned mixed committees, because the content is not identical, especially among the initial transfers that were agreed upon with the so-called fast-track Communities that we consider to be more wide-ranging 4 and the others, the contents of which were established by means of Organic Laws 5 to reform the Statutes, all of which were issued on 24 th March 1994, and which attributed executive functions in this matter according to the following terms: Management of social services and benefits of the Social Security system: Inserso. The benefits in the system, the requirements in order to qualify as a beneficiary and the funding shall follow the rules laid down by the State in the exercise of its jurisdiction, in accordance with the terms of item 17 of section 1 of article 149 of the Constitution. Moreover, in all cases, this exercise shall be controlled by the high State inspectorate. Of all the matters that fall under the jurisdiction of the Autonomous Communities, special attention should be paid to those that refer to the acknowledgement, statement and specification of Social assistance (Basque Country, Catalonia, Galicia, Madrid, Navarra, Community of Valencia); social assistance and services (Andalusia, Castile-La Mancha, Castile and Leon, La Rioja); social assistance and welfare (Asturias, Aragon, Cantabria, Extremadura, Murcia); social action and benefits (Balearic Islands). For example, in the case of Catalonia, which received the first transfer of powers in the field of the Social Security (Royal Decree 1517/1981, of 8th July) conditions management of the centres, establishments and services solely to the State s basic legislation, although as regards determining who should qualify as beneficiaries, the requirements and intensity of the protective action and the financial and economic systems, the "general Social Security regulations" should be followed. On the other hand, the statutory reforms of 1994 directly subjected management of social benefits and services to the rules laid down by the State. Asturias (OL 1/1994); Cantabria (OL 2/1994); La Rioja (OL 3/1994); Murcia Region (OL 4/1994); Community of Valencia (OL 5/1994); Aragon (OL 6/1994); Castile-La Mancha (OL 7/1994); Extremadura (OL 8/1994); Balearic Islands (OL 9/1994); Community of Madrid (OL 10/1994); Castile and Leon (OL 11/1994). 17

18 the degree of disability and to the application for and granting of benefits, including those that are intended to cover the needs of dependents. Analysis of these may be of interest in determining new benefits. As regards assessment of the current regulations, 6 Royal Decree 1971/1999, of 23rd December, refers in article 6 to the ownership and exercise of jurisdiction, lays down the following: The corresponding bodies in the Autonomous Communities to which a role in the task of specification of degrees of disability and handicap has been transferred, or the Institute of Migrations and Social Services, are responsible for the following: a) Acknowledgement of the degree of handicap; b) Acknowledgement of the need of the assistance of another person in order to perform the essential tasks of daily life and the difficulty in using group public transport, for the purposes of the allowances, services or benefits that are established; c) other roles referring to the diagnosis, assessment and guidance for situations of handicap that have been or may be attributed by state or autonomic legislation. The following article on territorial jurisdiction reiterates the jurisdiction of the Autonomous Communities in carrying out the aforementioned roles. As regards the second issue, Law 26/1990, of 20th December, which creates the Social Security non-contributory pensions, laid down in the fourth additional provision that 1. Invalidity and retirement pensions, in their non-contributory modes, shall be managed by the National Social Services Institute or, where applicable, by the Autonomous Communities that have been granted statutory jurisdiction in this matter and to which the services of the aforementioned body have been transferred Autonomous Communities Local Corporations To this complex jurisdictional structure between the State and the Autonomous Communities, we must also add the structure that corresponds to the jurisdiction of the Local Corporations. The constitutional proposal for the territorial organisation of the State is stated in Title VIII, where it establishes two general levels of Local Administration, the Municipalities and the provinces, although it also contemplates the case of the islands and the possibility that Groups of municipalities other than those of the provinces may be formed (article SC) which, in the case of the Statutes de Autonomy, foresees the possibility that by grouping the bordering municipalities together, they may set up their own territorial electoral districts, which will enjoy full legal personality (article SC). On the other hand, the constitutional text lays down the general principles of this organisation: autonomy (articles 137, 140 and of the SC), solidarity (article SC), the impossibility of economic and social privileges (article SC), equality of rights and obligations (article 139 SC), freedom of circulation and settlement (article SC). The State, in the exercise of its jurisdiction, promulgated Law 7/1985, of 2nd April, which regulates the Bases of the Local Regimen (LBRL), 7 specifying the following local entities: a) the municipality, b) the province, c) the island in the Balearic and Canary archipelagos, d) other entities: those whose territorial scope is less than municipal and which are set up or acknowledged by the Autonomous Communities; the counties or other entities that group together various Municipalities and are set up by the Autonomous Communities; metropolitan areas and the Municipalities. This law specifies the general jurisdiction of the local bodies and defines the areas in which the municipality will always hold jurisdiction, according to the terms of the legislation of the State and the Autonomous Communities. Among the responsibilities that are indicated is 6 7 The background to this rule is Royal Decree 1723/1981, of 24th July, on the acknowledgement, statement and specification of the conditions of mental handicap and disability and its implementing rules. Partially amended by Law 57/2003, of 16th December, on measures to be taken in order to modernise local government. 18