Standards and discretion in the “backyard of law” – case handling of debt relief at the Swedish Enforcement Authority

Paper to the 26th Conference of the Nordic Sociological Association, 15-18 August 2012, University of Iceland, Reykjavik

Work in progress; please contact the authors before quoting!

Bengt Larsson Professor of sociology at the University of Gothenburg (Bengt.Larsson@socav.gu.se)

Bengt Jacobsson Assistant professor of anthropology at the University of Gothenburg

Introduction1

Problems of consumer overindebtedness are related to the rise of consumer credit capitalism since the 1970s, and the de-regulations of credit markets in the 1980s. The possibility to be discharged of debts through debt relief/adjustment has been developed in Europe since the mid-1980s, and the systems for debt relief are continuously reformed to adjust for inaccessibility, unfairness in treatment, and ineffectiveness (Kilborn 2009, Ramsay 2007).

The legal framework for debt relief has been changed a number of times since the Swedish Enforcement Authority (SEA) got the assignment to handle debt relief in 1994 (Sandvall 2011). During the same period the SEA has been a reforming organization, continuously trying to improve its performance in terms of both economic efficiency (productivity) and legal consistency (i.e. in producing just and uniform decisions) (Espersson 2010; cf. Brunsson & Olsen 1997). These reorganizations has been made against the backdrop of the last decades of trends in New Public Management (NPM), aiming to produce a better cost-efficiency through performance based systems and management by goals (e.g. Hall 2012, Hood 1994, Pollitt and Bouckaert 2011).

1 The phrase “backyard of law” in the title is taken from an interview with a case officer who stated that debt relief cases hardly concern the most challenging legal problems, and that being a case officer thus is seen a bit like working in the backyard of law. The project on which this study is based was funded by the Swedish Research Council. We would like to thank the Swedish Enforcement Authority and its personnel for making this research possible, and Ylva Ulfsdotter Eriksson, Lotta Pettersson, Tove Pettersson, Ingrid Sahlin, Hanna Wikström and Malin Åkerström for constructive comments on previous versions.

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Research on overindebtedness and debt relief in the Nordic countries has basically focused on legal changes (Carlsson & Hoff 2000, Kilborn 2009, Niemi-Kiesiläinen 1999); aggregated data to explain the causes and effects of overindebtedness (Dellgran 2000, Niemi-Kiesiläinen & Henrikson 2005, Tufte 2004); surveys and interviews on popular attitudes towards debt relief (Tufte 2005); and interviews to understand the debtors situation and experiences (Jacobsson 2003, Sandvall 2011, Poppe 2008). The effects of reorganizations in public services on the exercise of public authority do exist in other areas of public services in Sweden (e.g. Blomgren 1999, Blomqvist & Rothstein 2000, Forsell & Jansson 2000, Hall 2012; Hasselblad et al. 2008; Larsson et al. 2012), and internationally (e.g. Christensen & Laegreid 2011, Hood 1994, Pollitt and Bouckaert 2011). Studies of the impact of such reform on the micro level of “street-level bureaucracy“ have been done in neighboring areas of public services, such as social work (e.g. Ellis 2007; Evans 2011; Evans & Harris 2004; Ley and Seelmeyer 2008; cf Lipsky 1980). With the exception of Esperssons (2010) study of the reorganization of the SEA in Malmö and Larsson & Jacobsson (2012), no studies have been done on the reorganization of the process of debt relief or the SEA in general in Sweden, and no studies have been done on its impact on street-level bureaucrats and case handling.

This paper aims to discuss the balance between standards and discretion – defined as “a restricted and protected space, where liberty to judge, decide, and act is provided” (Molander & Grimen 2010: 169) – in relation to the ongoing formalization of case-handling of debt relief at the Swedish Enforcement Authority. The focus is in particular on the relation between the reorganizations of the SEA – in order to improve efficiency and legal uniformity – and the existence of two aspects of discretion: structural and epistemic (Molander & Grimen 2010). Methodologically it is based on an approach inspired by “institutional ethnography” (Smith 2005). That is, we are trying to understand how people’s activities or practices are coordinated, not least through language. Of particular significance for our case is to relate practices to ‘documents in action’, that is how they are activated, and used in a routine activity of an organization enacting legally binding decisions (Smith, 2005, pp. 101ff.; cf. Polletta et al., 2011, pp. 114-118; Latour 2010). The data consists of official and internal SEA documents, field notes from observations at the SEA, and interviews with its management and staff (n 29). All data were collected in 2010. All quotes have been translated from Swedish to English by the authors of this paper.

Standards, discretion and formalization

The case handling of debt relief at the SEA is governed by law, as all exercise of public authority. The case officers at the SEA are guided not only by the Debt Adjustment Act in force, in addition to other sources of legal interpretation such as case law and governmental documents, but also SEA directives and policies, organizational routines and practices, and formal rules of thumb inscribed into process maps and software support systems – registers, case-handling systems, etc. which function as storages of knowledge and standards for decision making (Brunsson & Jacobsson 2000).

Formalized by law and standards as it is, in all bureaucratic decision making there always exists a certain amount of discretion – either in a wide “structural” sense of an unregulated space in which case-officers may make decision on the basis of their own judgements, or in more narrow “epistemic” sense of having to make reasoned judgements and justify them in relation to given rules (Molander & Grimen 2010; Lipsky 1980). The latter implies that laws, rules and policies must be interpreted, and the information on which decision is made must be

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collected, selected and translated into decisions with help of the codes, categories and standardized vocabulary of the institution (Hawkins 1992; cf. Tilly, 2006, pp. 119f.; Smith, 2005, pp. 101ff.). 2

The case officers performing such a translation may be seen as “street-level” or “screen-level” bureaucrats. As discussed by Lipsky (1980) street-level bureaucrats actually make up public policy at the micro level through their practices – within the limits of the time, budget and the rules and regulations governing their work. A central point in his approach on street-level bureaucracy is that the front-line staff of public authorities has quite some scope of manoeuvre for using judgement, experience and tacit knowledge in their client-related work, which enables certain degrees of flexibility in matching solutions to clients. This scope of manoeuvre has to do both with the (structural) space of discretion left in governing documents, and the (epistemic) aspect of discretion existing from the fact that given rules and policies must be applied to cases with varying circumstances (Molander & Grimen 2010).

The sheer amount of policies, rules and regulations guiding public services and administration is often so voluminous that they may be contradictory or at least must be invoked selectively. There may for example be tension between the effectiveness of mass processing cases and the requirements of fair treatment and legal consistency in case handling. Consequently, “the fact that the street-level bureaucrats must exercise discretion in processing large amounts of work with inadequate resources means that they must develop shortcuts and simplifications to cope with the press of responsibilities” (Lipsky, 1980: 18). In addition, the street-level bureaucrats are often required to take into account the human dimensions of their clients situations – and the individual situations of concrete cases vary to such a degree that it case handling may not be reducible to programmed formats according to Lipsky.

The last decades of New Public Management (NPM) and managerialism, however, aiming to improve cost-efficiency through performance based systems and management by goals, has been said to undermine or reduce the space for discretion for “street-level bureaucrats” (Evans & Harris 2004; Hall 2012, Hood 1994, Pollitt & Bouckaert 2011). With the accompanying development in Information and Communication Technology (ICT) the traditional “street-level bureaucrat” may even have been replaced to a good part by “screen-level bureaucrats” who interact with their clients electronically rather than physically, and who processes cases through formats designed into computer software (Bovens & Zouridis 2002).

The development of measurable and “lean” process- and work flow systems, and computerized case-management-systems, implies a formalization and standardization of case handling, which is said to place the discretionary power in the hands of centralized “system-level bureaucrats” designing these systems – i.e. managers, legal policy staff, and IT expertise of the organization (Aronsson et al. 2011; Ley & Seelmeyer 2008). Even so, Lipsky may still have a point in his observation that though there may be strong tendencies towards formalization from the management – that is, already before NPM – the front line staff of bureaucracies tend to “create capacities to act with discretion and hang on to discretionary capacities they have enjoyed in the past” (Lipsky 1980: 19).

2 I juridiken kallas denna översättning rättstillämpning, vilket avser ”att en domstol eller en myndighet avgör ett konkret fall i överensstämmelse med en rättsregel” (Peczenik 1974: 54). Denna process bygger på s.k. subsumtion vilket innebär att fastställa relevanta fakta i målet och jämföra dem med rättskällorna (lagen, förarbeten, rättspraxis) med hänsyn till rekvisiten, dvs. de villkor som avgör vilka omständigheter som ska tillmätas betydelse i ett konkret fall och som ska läggas till grund för att en lag ska bli tillämplig (Hydén 1987: 13ff. jfr Lehrberg 1996: 24ff.; 148ff.).

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The amount of discretion left to, or recreated by, the front line bureaucrats of course vary between different public organisations, depending on the subject matter of case-handling and the ways and degrees in which formalization through NPM and managerialism have been implemented. In order to give a background to the following analysis of discretion and formalization of the case handling of debt relief, we will thus begin with giving a short overview of the relevant legal and organizational changes.

Change in the system of debt relief 1994-2012

The main purpose of debt relief according to the governmental documents is ‘that it shall be rehabilitating; gravely indebted persons shall have an opportunity to solve their economic problems and thereby get a new chance to a life more liveable and beneficial to society’ (SOU, 2004:81, p. 143). A central aim of the recurring reorganizations of the systems for debt relief and the organization of the SEA since the establishment of debt relief in 1994 has been to improve the debt relief process in order to avoid inaccessibility, unfairness in treatment, and ineffectiveness. At the level of governmental policy and law, the main changes since 1994 were the reformations of the Debt Adjustment Act in 2007 and 2011. The main ambition behind these legal reforms was, however, not to increase efficiency or uniformity in case handling. They were focused rather on the problem of inaccessibility, and aimed to make it easier for overindebted persons to get debt relief, but also to speed up the turnaround time in case handling – and to some extent these legal reforms realized that aim (Sandvall 2011: 31; SOU 2008:82).

At the level of the SEAs overall organization, there have been a number of major reforms focusing on increasing efficiency and legal uniformity since 1994, though. Not only in the debt relief process but in all the SEA operations – the focus of our presentation is, however, only on the former. The first major change during the period was when the previously 24 local enforcement authorities were reduced to 10 regional authorities in 1997 in order to rationalize the administration and use of resources. In 2002 this was followed by the establishment of common goals and an implementation of team organization at all regional authorities – against the background that the turnaround time were too long, and that there were great divergences in case handling at the different regional authorities (RSV 2000). In 2006 a reorganization of all regional authorities into one national authority, formed as a process organization, followed (Espersson 2010; SOU 2003:97: 114f.). Thereby, debt relief was unified into one of the national processes, with case handling performed at five localities in Sweden. In the break 2011/12 the SEA was again reorganized, now into national divisions, in order to further increase efficiency and improve management and internal communications (Kronofogden 2011).

At the level of case handling, the main reforms since the creation of the unified national SEA in 2006 are the following: In 2006 a network of internal SEA lawyers3 was created in order to increase uniformity, efficiency, coordination and quality control of case handling in cooperation with a national expert group, responsible for producing “governing signals” regarding particularly delicate areas of assessment (Kronofogden 2006a). These laid the basis 3 While many case officers are educated lawyers, those called lawyers at the SEA have a special role, since they serve both as supportive experts for case officers, and are the ones in charge of reconsiderations of debt relief decisions appealed against by the debtor or the creditors. The lawyers thus have both informally and formally a higher authority than the case managers.

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for number of governing documents called Positions from the process owner (Ställningstaganden från processägaren), which aimed to concretize the law by prescribing details on how to assess the conditions regarding the subject matters (rekvisit) of assessment. In addition, a new standardized uniform case handling system was developed, based on productivity measures, process maps and audits.4 This formalization of case handling was developed further through an introduction of a new computer-based system (FENIX) supporting the individual case handling officers in handling applications for debt relief. FENIX was piloted in 2010 and launched in late 2011 in order to control and audit the case handling at all locations of the SEA. The 2011/12 reorganization also included a new performance development program, with individualized performance goals and audits, to be implemented during 2012 (Kronofogden 2011).

One may already from such a brief overview understand that these changes not only aimed to improve economic efficiency (productivity) and legal consistency (i.e. in producing just and uniform decisions), but encompassed new standardizations measures and formats which circumscribe the space for professional discretion in case handling. It is also obvious that the SEA-reorganizations has been influenced by the general impact of New Public Management ideas in the Swedish public sector, encompassing both management bureaucracy practices such as implementing new control and management systems, productivity oriented performance measures, and even some “lean” and “supply chain management” mechanisms focusing on “customer value” and “doing more with less” (Cf Hasselblad et al. 2008; Hall 2012; Aronsson et al. 2011).

The question then is to what extent these changes have delimited professional discretion, and to what extent the standards still leave possibilities for interpretation and judgment – in terms of “structural” as well as “epistemic” discretion (Molander & Grimen 2010)? We will take a closer look at this in the analyses below, in relation to both the legal and regulatory standards and the new policies and programmed formats that where introduced.

The standards – an amoeba-like law accompanied by politicised directives?

The Debt Adjustment Act of 2007 states two general conditions regardning subject matter for granting debt relief. First, the debtor must be qualifiedly insolvent, which implies that ‘The debtor is insolvent and so indebted that he or she cannot be assumed to have the ability to pay the debts within foreseeable time’ (SFS, 2006:548, 4§; cf. Kilborn, 2006). The second condition is that ‘it is reasonable considering the debtor’s personal and financial circumstances to grant him or her debt relief’ (ibid.). Four aspects are to be considered in this assessment of reasonableness, ‘the age of the debts, the circumstances of their origin, the efforts of the debtor to fulfil his/her obligations, and the manner in which the debtor has participated in the case handling ...’ (ibid.).5 These aspects of reasonableness are assessed both

4 According to Kronofogden (2006b) this work was inspired by Ljungberg et al. (2005) Processbaserad verksamhetsutveckling, and Seddon (????) Freedom from command and control. A better way to make the work work.5 A legislative amendment in mid-2011 discharged the assessment of the age of the debts from the assessment of reasonableness. However, this has no implication for our analysis, since the material was gathered in 2010. The first Swedish law of debt relief from 1994-2006 encompassed another aspect of the assessment of reasonableness: ‘the efforts made by the debtor… to reach an agreement with the creditors on his own’. (SFS, 1994:334, 3§). Such a voluntary agreement was called ‘step 1’ and it was the municipal Budget and Debt Counsellor’s task to help the debtors contact the creditors. This step was, however, omitted in the legislative change of 2007 (Kilborn, 2006; cf. Sandvall, 2008, pp. 49ff.).

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separately and in a joint overall assessment – a new element introduced in the Act of 2007. The Act also specifies what nature the debts should have, what the application should contain, and rules for refusal, initiation, investigation and decision on debt relief. This Act is, however, a fairly short coherent framework law which leaves a lot of space or “gray areas” for “balancing” judgment, according to the case officers:

Our esteemed parliament has chosen to give a very large space to the individual case-officer's competence, and discretion. There is extremely little to stand on in the legislation. The legal cases are — or individual debtors are, as different as night and day. And all of them should one attempt to fit into some kind of template. That requires inventiveness. (case-officer, int. 13)

Two respondents believe that the law thereby best can be likened to an “amoeba”. And in addition, case law, which is said to be of the few fixed points they can stick to, consist of relatively few cases, and allows for numerous exceptions. According to one of the lawyers, there is also a fundamental legal paradox inscribed in the debt relief law, namely that the SEA has the task both of resolving a conflict between two parties – creditors and debtors – and have a rehabilitative function for the latter party.

We are to follow an “outline law” (ramlag) which is like an amoeba, on the basis of precedents that are written from 2004 onwards. At the same time we are to maintain the creditor aspect, giving as much dividend as possible. We must ensure that the payment morality of society is not compromised, and at the same time have a conflict-resolving role, so we are a, a rehabilitating function. And in the middle we stand and will try to satisfy it all. There, I can see a problem. That you must, you must meet two so fundamentally different schools of law, conflict resolution and action delegation (handlingsdelegering) (sigh). (Lawyer, int. 22)

The space for discretion created by the law is, however, narrowed down by the Positions of the process owner, as well as the general policies and organizational routines and practices inscribed into process maps and software support systems. If we begin with the Positions from the process owner, they mainly concern numerical details of how to determine matters such as the reservation amount (förbehållsbelopp) for medical expenses and travel expenses, changes in the possibility to pay (betalningsutrymme) which could bring about the basis for reconsideration (omprövning), and how long the period of future incapacity to repay has to be in order to be defined as ” qualifiedly insolvent”. The following summary in the position which controls the assessment of ”qualified insolvency”, may illustrate these governing documents:

In the long-term assessment of the debtor's ability to re-pay, the SEA shall start from the prevailing circumstances at the time of the assessment. From this point of departure, the authority is to make realistic assumptions about the income-development in the individual case. Consideration is to be taken of anything that may affect the debtor's present and future economy, e.g. education, health, past income, dependents to support (försörjningsbörda), and cyclical unemployment. Regarding the condition on the subject matter of ”foreseeable future” the SEA consider that an incapacity to repay lasting between five to ten years is sufficient to fulfill the qualified insolvency requirements of the law. (SEA 2008)

There are somewhat divergent opinions regarding the degrees of discretion left to the officers in these positions. Some suggest that they circumscribe the space for discretion “too much”, and who see a tendency in that the scope for interpretation is becoming be “more and more narrow”, other states that there is still much of interpretation to be done:

The legislation leaves an incredible amount of space, the Positions of the process owner leave very little. There is always interpretation, naturally. But the Positions are there in order to make everything as uniform as possible, and one should not interpret in different ways. [...] There is always a lot of space, and there, it's always a matter of judgment... you should always make an overall assessment. (case-officer, int. 21)

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A recurrent theme in the interviews with officers and lawyers is that some of the space for “assessment” and “balance” is left untouched by the Positions. Some even state that that this is the “thrill” of law; “that it is not always black and white”. Others argue that in practice this space is still really very wide, since the “flexibility” of the rules can be utilized:

You can not deviate from the standards. The regulatory framework is so flexible that it's impossible to go outside the rules. However, it happens that I make reinterpretations, where I deviate from my own practice (case-officer, int. 13)

The most problematic aspect of this interpretative and discretionary space is said to be that decisions may be influenced by the individual officer's person or interpretative style. How much you “dare to cut loose” is said to depend on such things as age and experience, and decisions could is then be at risk of being “heavily influenced by the people we are, and what we worked with before, and our personal experiences” (case-officer, int. 3). The problem is that the SEA, like all authorities, are expected to treat all cases in a consistent and uniform manner, while discretion is said to lead to decisions being “different” depending on who is dealing with, and that a specific application therefore “could lead to different decisions by different officers” (case-officer, int. 2)

The politics of generosity and productivity

Some of the interviewees emphasized that there is no reason from the officer trying to “slant” a case in a particular direction, even though that possibility may exist. In contradiction to that other statements show that the overall policy of the SEA – anchored in governmental documents and the preparatory inquiries to the Act of 2007, rather than in the Act itself – to decrease the turnover time, increase productivity, and make it easier to get debt relief, do actually create such practices. There is an outspoken policy which encourages officers to be “generous” and initiate as many cases as possible, which to some extent contradicts the ideal of neutral objectivity and the task of the SEA to look after the interests of the creditors as well as that of the debtors, as discussed in one of the quotations above. In addition to that, the productivity goals have been increasing on a regular basis during the last years, and emphasized through instructions not to “over investigate” before initiating a case (e.g. Kronofogden 2010: 25). This policy implies a “softening” in the assessment, in order to initiate more cases and process them faster. An officer puts it this way:

Now we have received instructions from the top that if we are uncertain we should rather initiate than reject. And, if this is the line of the SEA one must, one must accept that when working at the SEA. (case-officer int. 9).

This “generousness” is related to the greater emphasis placed on the overall assessment in the new Act of 2007, which seem to increase the space for epistemic discretion for case-officers. Although none of the respondents state that they are promoting a “hard-line”, some believe that others might do that, by looking for things that “delay” the decision to initiate debt settlement, or by setting excessive moral requirements on the applicant, and that is problematic since it is always possible to “find something” in a case if you go looking for it. The tendency to lean towards such an approach is thought to be greater for case-officers trained and experienced in other authorities with higher requirements on citizens to do carry their own weight. When used for the benefit of the debtor (and in line with the productivity goals), there seems to be less reservation in using this space for discretion on the basis of a personal opinion:

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Some things one figures: ”Well it's not so all that important that it is accurate”, like, but you deviate a bit and so, in general, so (laughter). [---] cases where I can see that there are a lot of things speaking to the debtor's detriment, but I still initiate a case. [...] It's not that [...] it is not lawful what I do, but, it is more that, something that I motivate, initiate and motivate, which is perhaps a borderline case, it may be a case which another officer would reject. (case-officer, int. 3)

In spite of the embracement of the more generous attitude following from the new policy of 2006/6, some officers and lawyers believe that the internal control signals has politicized the assessment too much in relation to legislation and case law, and that the authority's interpretation is “extreme”, “radical” or at least “has been taken a little too far”:

Sometimes I do not think they go together with the laws, with the preparatory governmental inquiries, and with case law, from courts. And that is higher up in the hierarchy, really. [...] So it's a little bit, it's a little hard as a lawyer, especially when you worked at the court, that, one sees that the authority has one line and will readily pursue it as hard as possible, and then you find that as soon as it is taken to court, which actually sits higher up in the hierarchy of authority, they say, “No, but this is wrong.” And yet, we are to pursue that line. (case-officer, int. 9)

From the managements point of view one looks differently on this. One of the senior executives interviewed see it as a long learning process that has been going on since the first debt relief law 1994. The possibility to practice assess as they do today have been there all along, but it took time to find the way up to this more “generous” attitude:

I think it is a positive trend. [...] That is, before the law that was, which was passed in 2007, they said that: “You are too strict. You still reject, like on a, you do not perform the overall assessment!” And the SEA was criticized for that, in the prop., that is in the preparatory governmental inquiries. And there they also state that: “But that can be corrected with a little training and so”. Which has, which we have taken into account now. And the lower courts, the District courts (tingsrätterna) also received criticism. So really, those who were good on the overall assessments were the Courts of Appeal (hovrätterna). So I think we have been, it is we who have been a little too strict, the space has existed all along. [...] And I, for, I can imagine that you, you conceive it that way: that we have become more generous just for doing now what we should have done all the time! (manager, int. 19)

But there is also another argument for this move towards a generous approach. It is based on the concept that the SEA should drive the development of new standards, as the authority considers that the debt settlement law is “too rigid and outdated” and need to be developed “at a faster rate than it is developed by the legislator” (case-officer, int. 11) . The SEA is then considered not only as an important consultative body in law-making, but also as a source of legal development:

Sometimes you feel like the legislator has not had time yet, you should change some regulations, and then, we may in a bit anticipate them, or take them to us a little bit. So it’s, it is like a development. The Positions from the process owner can sometimes be a such, that is perhaps to be changed ... (Lawyer, int. 12)

Programmed formats – process maps and computer software

In addition to the laws, positions and policies discussed above, which govern the subject matters of case handling, there are organizational routines and practices inscribed into process maps and software support systems, which govern the process and routines of case handling. One of the more important is the detailed process map which was developed in 2006 to both identify and control individual assessment point and their order in the case process. The process map is a kind of ”institutional codification” or “programming” of existing practice

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with the help of generalized categories – it is also the basis for the software case-management system FENIX, developed and piloted in 2010 and implemented at all locations of the SEA during 2011. The process map contains several levels of abstraction, which means that one can see the steps involved in the overall process as a whole (”level 2” in Figure 1) and get more detailed information about which part is included in each moment (level 3 from step to step 1.2.1, 1.2.5 Figure 1).

Figure 1. (to be translated)

As shown in Figure 1, there are process descriptions for each sub process of the overall process, which clarifies the order of case-handling. In addition, there are detailed descriptions of the purpose of all sub processes, of what rules that govern them, and what choices, exceptions and critical factors that may occur. An example of that is that the task of “investigating” has as its purpose to “reconcile the information in the application with available databases, to identify any ambiguities and/or deficiencies, and to obtain supplementing information from the debtor”. The customer requirements guiding this investigation are that the officer should make sure to have legal support for database access, make a legally accurate and relevant database control, and make a balanced assessment in a rigorous way. Finally, there is yet another level of specifications in the process map, which describes in bullet points exactly what the administrator should do during this investigation:

• Consult information about the debtor's personal and financial circumstances from the following registers and databases:- The investigation- and enforcement database, e-cases, a-cases, proceedings, income distraints.- The tax register; last taxed income, employer, deficits on the tax account/surplus tax, shares, bank accounts, joint taxation, closed corporations, real estate holdings- The database over injunction orders and enforcement assistance; cases and decisions- The population registry

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- The road traffic registry• Check if the information in the application corresponds with the above information.• Register and attach the established documents to the case.• Establish case-management notes, if necessary.

Taken in all, these we here get a picture of a format with which the individual case-officer is guided step by step through a strongly institutionalized routine. Thereby the process map, and its sequel FENIX, circumscribe the case-officers structural discretion in basically two ways. First, this programming of case handling reduces the possibility skip or simplify elements of case handling, or information to base assessment on, at least on paper. Secondly, this format strongly reduces the case officers’ discretion in deciding upon the work process – an aspect of structural discretion than might be called “procedural discretion”. This consequence is enhanced by the fact that the software case-managing-system, makes factors such as number case in process, and turnaround times visible for all levels of management at all times on team level as well as for the individual officers. Previously the different localities ha to keep track manually on these things, and there was thus some space for maneuver and planning left for teams and individuals

On level of epistemic discretion, though, it is not certain that these formats really do circumscribe that much. The process of interpreting, judging and justifying decision must also be applied to these programmed formats. To just given one example of how such space of discretion still exist within the detailed regulation of the process map, is the above specification of the point “investigation”, which states that the officer should make a “relevant” database control and “a balanced assessment” in a “careful” way. What this means is not spelled out, but something to be based on individual judgment and collective practices.

Even so, there naturally exists critique from experiences officers, which see problems with all too strongly programmed formats of case handling. Let us give one example from our field notes:

When asked what it entails to use the process map and the new case-handling software in handling debt relief cases, a case lawyer with long experience of case handling and reconsiderations says that it is hard to get every factor in a complex case into such systems. The lawyer recalls a conversation he once had with a pilot. When asked whether the autopilot could handle landing the plane completely the pilot answered yes, but added that he could land the plane smoother than the autopilot. This is due to the adjustment for small changes in wind and other things that the pilot makes at the last moment. (field note)

The point of the analogy seems to be that a professional who has knowledge and practical experience is more able to take in the situation in its full complexity, and can make more precise judgments from an experiential sense of what is best to do in a delicate situation, than a software programmed format can.

Structural and epistemic discretion – assessing subject matters and reasoning

To understand how case-officers relate to the balance between standards and discretion, we need to dig a little deeper into how managers interpret the space left for interpretation (structural discretion), as well as the space in which interpretation of rules is flexible and based on selection of information and reasoned arguments (epistemic discretion). Taken as a whole, the case-handling procedure is said to encompass quite some space for discretion, since it is governed by “both law and judgment”, as one lawyer expressed it. A

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First, we may note that there seems to be a discretionary space above all before the officer decides to initiate or reject a case on the basis of the two main conditions on subject matter stated in the Act – qualified insolvency and reasonableness. Some case-managers state that the assessment of insolvency is mainly a question of numbers and leaves little space for interpretation or reasoning. Even so, there exists elements of discretion in at least one part of that assessment. One of the lawyers says that the officer's experience may play a major role in making the forecast of the debtor’s future income: “that, is nothing but experience ...” (Lawyer, int. 16). It is even stated in the handbook for the case-managing-system FENIX that “The calculation of insolvency is not an absolute truth, but only an approximation of how many years it could take for the debtor to pay the debts on the basis of the circumstances at hand at the time of the calculation” (Kronofogden 2011: 23).

As regards the subject matter of reasonableness, many of the case-officers recognize the space for making judgments created by the emphasis on the overall assessment introduced in the Act of 2007, in which individual conditions are to be balanced. This element of weighting is also stressed by one respondent from the management:

... The main thing is that we should not let a single negative factor directly lead to a rejection. That was in many ways the case previously. For example, well, damages. Then you were smoked. Or if you had, you lived in a too expensive place, then you couldn’t get debt relief either. Today we really try to it weigh it together. They may have lots of old debts, but happen to live in a slightly expensive place. Yes, but then you have to weigh that against each other. (manager, int. 24)

If there is much space for discretion in the overall assessment, there are varying degrees of discretion also in the different aspects to be taken into consideration in assessing reasonableness – the age of the debts, the circumstances of their origin, the efforts of the debtor to fulfil his/her obligations, and the manner in which the debtor has participated in the case handling. As regards the age of the debts, that is much a straightforward question settled by the Positions by the process owner, and not so much to interpret individually:

To a great extent you stick to the raw facts. So, as long as they are, like, so, you do not care perhaps about the circumstances. If the debts are from the 80s, I don’t care that much about how they were incurred, for example, or who did what in this or that period. (case-officer, int. 8)

The other aspects of the assessment of reasonableness are much more related to the debtors own account of what happened. These are subject matters that open for quite some selection of information, interpretation and reasoned argument in writing up the decision. We will now take a closer look at those processes.

Interpreting stories and selecting from information

As discussed in detail in Larsson & Jacobsson (forthcoming), the debtors are required in the application form for debt relief to account for their present financial situation, for background details concerning education, employment and family relationships, for when the debts arose, for why they failed to pay, and for what they have done to resolve the situation and pay the debts. This information, supplemented by register retrievals, is the data which the case managers must select from, interpret and translate into legally binding decisions. Since this is really the core of “epistemic discretion” (Molander & Grimen 2010, cf. Hawkins 1992), we need to dig a little deeper into how case-officers perform such an act of translation, ‘making

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the actual institutionally actionable’ (Smith, 2005, p. 186) and produce legal “truth” by ‘stringing text and Codes together’ (Latour, 2010, p. 13).

Even though some cases seem simple enough so that the case-officer may just stick to the raw facts, as in the above quotation, other states that it is important that you also get a “little story” from the debtor. This is important not least to know how to present the case to the creditors in the proposal for debt relief. A problem in that situation that many debtors write lengthy descriptions with much “abundant information” that must be screened off by the case-officer.

Some write, like, actual A4-pages about their miseries, and (sigh). There, that’s the way it is. It's administrative law, what is written I must have read. I cannot skip them, if that’s what it says. So it would have been better if it wasn’t written, because it covers lots of things that are not relevant in my assessment, but the debtor does not understand that. So they're in the process of explaining everything, about how good they are and how pity they are, but I do not care about that! (Officer, int. 11)

We may here point out that a previous study showed that many applicants put effort in producing such accounts, not least to get a social recognition of why they got into debt and to be morally reestablished (Larsson & Jacobsson, forthcoming). For the case-managers, however, it is sufficient with short accounts. It may even work to “translate” an application without any data on the circumstances and background of the debt the origin:

Sometimes it’s enough with a single sentence, like: “I have had a business, and the company went bankrupt.” So, I do not need to know more really [...] it may be a bit more difficult to explain consumer debt. [---] That is, we're going to explain the indebtedness to the creditor, and that’s easier when there is something. But if there’s nothing, there’s nothing (laughs) and then, then you just have to write, like, yes “The debt was incurred between 2003 and 2005, and is therefore old enough.” (Case-officer, int. 2).

Some case-managers also find it less important that the description of what happened is accurate. It is more about “sifting out what is of importance”. The base line is the codes you are to translate the application into. There are case managers who believe that they “has neither the time nor the role to dig into what is really correct and not” (case-officer, int. 3). Others emphasize that it even though it might be of importance to have a description of what the debtor has done to reduce their expenses and pay off the debts; there are ways of writing about that without having any real explanation:

What they have done to sort out their financial situation? [...] I look at my records and see if they had a distraint. Distraint of wages. If they had and I see that they do not have this kind of really expensive apartment or a giant flashy car, but that I see that they have had a distraint, then I usually write in the proposal that: “The person has had a distraint of wages, and then he is considered to have made the efforts required to pay off the debts”. It is really [...] a bit silly because it's not the person himself who has chosen the distraint, so he has probably not made an active choice. But you still, you may see it that way. (case-officer, int. 9)

Writing up proposals and decisions

Equally important as selecting and encoding information, is the process of writing up and arguing in a clear way in the proposal for debt relief, since they are sent out to both the debtor and the creditors. The latter must state whether they can accept debt relief, or if they have any objections. Such objections does not prevent the SEA to grant an applicant debt relief, but that may be done first after a lawyer reevaluation by of the decision by a lawyer. And even then, it is of importance how proposal was written. The actual writing of the proposal and decision, thus, also plays a role in the translation of an account into a code, and it is construed on the

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basis of both the application and other documentation, such as data from registers or complementary information from the applicant.

Some case-managers can use the applicant's story in the writing of proposals and decisions, whether it appears true or not – as long as the encoding is built on facts recognized by the authority. One needs to have a sensibility of interpreting what is written, though, regardless of how it is formulated. It is a matter of not giving too much emphasis on “how they express themselves”, but the meaning of what they are saying. Several case-managers stress the importance of the actual writing of proposals and decisions, which may be seen in the following excerpt from an interview with an officer who endorses the Enforcement generous attitude, according to which one should initiate in as many cases as possible:

And I usually argue quite a lot in my proposals. Justify very much. Actually I didnt receive a single objection during the fall [...] That is, as, as a lawyer and academic you have it in you, I think, this. I feel that, that if I just motivate with the right words, and like weight it rightly and show that I've been thinking about this and that. So, really, almost irrespective of what (laughs), what it is, you can make it like sound good. (case-manager, int. 3)

Being able to write convincing formal proposal and decisions it is a professional skill which, thus, plays a major role for the outcome. There are, for example, ways for the case-managers to distinguish between what the he or she thinks has occurred, and what is more of a “story” told by the debtor:

If it’s, like, that you clearly see, then, then I can write with my own words. “This and this has happened”. But if there are those, sometimes you get these really incredible stories [...] Would that be tried in court, they would go through everything, like, really careful. “What is the evidence, did this and that really happen?”. But, but then, I can, it happens that I express things with their own words too, not just try to write “this is what he meant”, but rather use how they expressed themselves a bit. [...] I don’t think I do like quotations marks. I think you get it, well, like by using their tone, a bit. (case-manager, int. 3)

Still, not all cases or case-managers agree on the importance of the writing process, at least not in cases when you may stick to the facts and figures. Some case-managers, embracing the politics of generosity even states that the rest of the application is of less importance if the debtor is qualifiedly insolvent:

There is no need for argumentation, and it is not necessary to describe, in detail, the reason for them to be granted debt relief… argumentation, that, it's not necessary, but. If, objectively, they meet the prerequisites and their situation is such that they have a great need of economic rehabilitation, there is nothing to argument for... (case-manager, int. 5)

Others stress that such an approach would be wrong, since the assessment of insolvency is only half of the assessment, and that the assessment of reasonableness should weigh just as heavy.

Local variation and the creation of uniformity

The creation of a national process of debt relief in 2006 was a way to handle not only what was seen as inefficiency and long turnover time, but also to reduce local variation in interpretive practices. The effort to increase legal consistency has been pursued not only through the creation of a unified organization, the Positions of the process owner, the network of lawyers (involving lawyers at all localities of the SEA), and the programming of case-management-systems. The SEA also audits case-officers’ decision a few times a year.

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Occasionally they find that the case-handling has deviated from the governing documents, or that there are obscurities in the interpretations made. An example of such given from a respondent in the management is that some officers “moralize” too much in their assessment. That may be the case for instance in cases involving mainly older debts, but where the debtor has continued to incur debt up to the time of the application. In such cases one has found that the officers may assess such debts differently depending on what the money was used for. From the management’s point of view, some officers are still a little too “strict” in such cases.

The SEA also launched a particular project called The uniformity project which consisted of a review of 15 cases aiming to assess issues regarding “fresh debts”, the debtor's efforts, and the importance of previous crimes, in the decisions. The project's conclusion was that the unity was ”stable” in the assessment of “fresh debts”, ”good” in the assessment of the debtor's efforts, but that assessment of the importance of previous crimes was “an area where we have different ideas and thus run a clear risk to make different decisions” (SEA 2009: 8).

Another element in the team organization which seems to be created to improve uniformity is the regular team-meetings in which difficult cases are to be presented and discussed. In fact, this may also be seen as a formalization of an old practice of giving and taking advice from colleagues and “reconcile themselves together”. This can still be done in the more informal way, by talking about his case with someone else, paralleling the formal “run through” of the case at a team meeting – the handbook for FENIX states at the end of the passages on how to assess the two major substance matters for debt relief, qualified insolvency and reasonableness, that “if you are unsure how to judge… you must immediately talk to a college or run through the case at a team meeting” (Kronofogden 2011: 24f.)

Sometimes it may be that a case can stand and weigh [...]. And depending on who you ask, you get different answers! (laughs) But it is still you, as an individual official, who must put your foot down then. And then you take in different impressions, partly through all these formalities available, with preparatory government inquiries and so. Then you discuss it. Hopefully, you arrive at a reasonably coherent decision in a group if you discuss in groups. It is an important part of our job, to bandy ideas. (case-officer, int. 7)

The lawyers responsible for the reconsidering of decisions play an important role in this juggling, because their authority weighs a little heavier than the other officers’. Lawyers are resource persons for officers, but there is also the possibility to turn to other officers if you prefer that:

I may be thinking like this: “Yes, I think this is an initiate, but I don’t know.” If then, I go and ask a colleague who I know initiates a lot, then I get the answer: ”Well, initiate this, just do”, and I go and ask another colleague who tend to reject a lot, then that person will say: “reject”. So it's a bit silly really, to be able to choose in that way. Therefore it's better to take it to the team, since then you have many more, but then you might not get an answer to your question, whether to initiate or reject. (case-officer, int. 9)

It is above all the particularly difficulty or “cloudy” cases that are dealt with collectively on the team meetings. One thing we noticed in our observations of such meetings is that there is the occasional regular voting on how a case should be judged, even though the decision is not collective, but the case-officers individual responsibility. This was also confirmed in interviews, though with the reservation that you can still go against the outcome if you have a different opinion.

When attending to such meetings it is obvious that there is quite some discretionary space to handle by the case officers – and that they are not alone with their standards and preprogrammed formats in this. The process of reasoned argument and judgment is at times a

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collective one – despite the individual responsibility for case officers. The following excerpt from a filed note is from a case-manager meeting in which three officials were discussing a debtor whose previous application had been rejected by both the magistrate and the district court. The rejections were based on the fact that the debtor was considered to be living with someone who he claimed to be a tenant. According to the initial draft from the responsible officer (Officer A) the applicant would be assessed as qualifying insolvent if he was a tenant, but probably not if he was cohabiting, since then the assessment would be based on the couple's joint economy. The discussion began with the officers trying to straighten out questions regarding the apartment's size, the age of the two persons involved, and for how long one might be a tenant. Then they went straight at the core question: is the applicant a lodger or a cohabitant, and how can you ensure that? A variety of possible ways to control cohabitation was tried:

Officer B points out that this is a valid form of housing (boendeform). This is a housing market at the side of the regular. But, says Officer C, if they live in the same apartment for ten years, don’t they share food and purchases? No, says Officer A, one is a vegetarian and the other’s not. Officer C points out that cohabitation is to live under marriage-like conditions, it is about physical contact, but adds: we cannot show that, he may actually be a tenant, they are surely friends. Officer A then says that the debtor refuses us to look at her finances. He don’t want to be viewed as cohabiting, but the district court didn’t think he could prove that he was not cohabiting.    Officer B says that the agreement signed by both parties on not having a joint economy suggests that they are not cohabiting. B wonders whether the agreement was signed specifically for the SEA. Officer A sees that as somewhat farfetched, but says that in the previous trial the case-manager injunctioned the applicant to provide information also on the partner's income. Officer B asks about how the Recovery/Wage distraint dealt with the matter. Officer A says that they considered the debtor as single, but adds that Recovery proceeds from their own information and that the issue is a bit different now that when he is applying for debt relief, since it is reasonableness that should be assessed now. But, says B, Recovery must also assess whether the two had joint economy. A points out that the Enforcement also regarded him as single.

Another turn of arguments follows: Officer B is wondering what indicates that they are a cohabiting, is it just that they are of the same age and live together? Officer A replies that the contract regarding divided economy is from 2002, though they did not move into this apartment until 2003. The question is whether they lived together also previously. Officer B thinks that you can reject the application if that is the case. Officer C brings the problem back to its core: how do you know if someone is cohabiting? “Do you ask about sexual intercourse?”. Officer B says that it is usually enough if they have children in common. Then Officer A calls points out that they are too old to have children at living at home. Officer B asks if they have common television licenses or telephone subscriptions.

Next follows a discussion of how to count on these things, and what consequences it would have for case-handling if one would do that in all such cases. They return to the key issue, now with a more sighing tone. Officer A wonders if they should dig further into the question of whether they have bought the apartment in order to live together. Officer B then suggests that you run a check on the national registration, to see where they both lived during the last 10-15 years, because if they have lived together then it's no accident or coincidence that he is staying with her in this apartment. ”Smart!” says Officer A. Officer B adds that it is still technically possible that the applicant is only a tenant, but that the rejection would be stronger then. Officer A says that it may be time to consult with the case-manager of the previous rejection and see whether there is “more in this, too”. With this, the issue seems to be dealt with. The meeting ends and everyone leaves the room. 6

This meeting illustrates several of the things we have indicated above. Firstly, it shows how a case may have details that are not clearly regulated by the Debt Adjustment Act or other

6 The filed notes were written down continuously during the meeting, but were revised linguistically to make them more comprehensible. Some side tracks has been cut out and things have been clarified a bit, but with the ambition to represent the contents of the discussion without too much bias. The meeting was attended only by three officers and one of the researchers.

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governing documents. Second, this is an example of the translation work needed to get a fit between information, registry data, and the legal categories – which in this case turns out to require quite some creativity to find a reasonable point of control relating to facts that may be established as certain. Thirdly, we see that collective negotiation may be a part of deciding in difficult cases. The officers help each other to find a way to tackle the problem. Fourth, this meeting point to the importance of writing up proposals and decisions clearly. Or rather, it would have been shown even if we had not excluded a side track in the discussion, where the group discussed what was the “weakness” with the previous proposal. It was said to actually be the wording of it, and the officer responsible for this case stated that this is a problem, “if one starts to write too much, that indicates that you do not have much to say.”

Conclusions

This paper aimed to analyze the balance between standards and discretion in relation to the ongoing formalization of case-handling of debt relief at the Swedish Enforcement Authority. As described in the background, the reorganizations of the debt relief system in Sweden have mainly aimed to improve efficiency and legal uniformity in case handling, and have been strongly influenced by the trends in New Public Management (NPM), aiming to produce a better cost-efficiency through performance based systems and management by goals (e.g. Hall 2012, Hood 1994, Pollitt & Bouckaert 2011).

From theoretical and general approaches, it seems that the introduction of NPM and managerialism is diminishing the space for discretion for street-level bureaucrats (Evans & Harris 2004; Hall 2012, Hood 1994, Pollitt & Bouckaert 2011). Some even see tendencies that the classical “street-level bureaucrat” is replace by “screen-level bureaucrats” guided by (“lean” and “agile”) programmed formats and computerized case-management-systems which leaves practically no space for discretion in case handling – but rather places all the discretionary power in the hands of centralized “system-level bureaucrats” designing these systems (Aronsson et al. 2011; Bovens & Zouridis 2002; Ley & Seelmeyer 2008). To some extent this tendency does exist in the case of the SEA and the debt relief system. Still, the actual development is more complex than that.

In order to give a nuanced picture of the issue, one needs both to take into account developments at different levels of the system of debt relief: legal changes, organizational changes at the SEA, and changes at the level of case-handling. In addition, there is need to unpack the broad concept of discretion, in order to create more precise analytical instruments. In this paper we did that by using the distinction between “structural” and “epistemic” discretion in order to distinguish aspects of case-handling and decision which are unregulated (structural discretion) – and thus possible for case-managers to decide on from situation to situation – from the interpretative space and reasoned argument (epistemic discretion) that is needed to apply given rules in a concrete situation (Molander & Grimen 2010). In addition, we found it necessary to introduce yet another distinction, that between “substantive” and “processual” discretion, in order to analytically separate yet another area of discretion – the capacity to decide upon the work process of case-handling – from the above substantive aspects of discretion (structural and epistemic) which rather concern the subject matter of decisions.

The empirical analysis points to a change in the balance between standards and discretion in the case handling of debt relief at the SEA, but not in the simplistic sense that discretion is

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diminished trough formalization. At the level of case-handling much formalization has been accomplished, but the narrowing down of discretionary space for judgment mainly concern the structural and processual aspects of discretion, not necessarily the epistemological aspects. In addition, there have been some contradictory changes at different levels of the system which has opened up new areas of discretion. From the interviews and field notes, it seems there is still quite some space for discretion for the individual case-manager in selecting and interpreting information and assessing the conditions regarding subject matter.

Let us summarize some of the main changes in the balance between standards and discretion: First, the structural aspect of discretion has been reduced through the introduction of new governing documents, such as the Positions from the process owner and the joint national legal expert networks guiding interpretations of “cloudy” aspects of assessment. These surely reduce the space for assessment where the individual case-manager may decide from her/his own judgment. On the other hand, the legal change of 2007, which introduced the overall assessment of the conditions regarding the subject matter of reasonableness, in addition to the previous four aspects of reasonableness that were to be assessed individually, actually increased the space for balancing and weighing different factors against each other. Second, the programmed formats materialized in the case-handling systems of the process map and the software program FENIX, have reduced the process discretion of case-managers of deciding over their own work process, though as noted in the analysis, these formats do not really change that much as regards the epistemic aspect of discretion – that is, how to interpret rules and produce reasoned arguments regarding judgments. Third the team organization, and other organizational changes aiming to increase uniformity in case handling has clarified the hierarchy of consultation in difficult cases, however, there is still possibilities to consult colleges from one’s own choosing.

In conclusion: even though there is an ongoing formalization of case handling of debt relief related to NPM inspired organizational changes at the SEA, and much effort has been put to increase productivity and consistency in processing and decision making, two of the central claims made by Lipsky, in his seminal study on street-level bureaucracy, still hold water. First, when enforced strong formalization from the management, the front line staff tends to “create capacities to act with discretion and hang on to discretionary capacities they have enjoyed in the past” (Lipsky 1980: 19). In addition, case handling is not in itself wholly reducible to programmed formats – at least not in the area of epistemic discretion. Laws, rules, policies and regulations always leave areas for interpretation and reasoned argument by the front line staff (cf. Hawkins 1992).

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