The high score nobody wants: Automation, welfare sanctioning, and the principle of equality of arms

This article examines the impact of automated systems in welfare sanctioning on the principle of equality of arms, as outlined in Article 6(1) of the European Convention on Human Rights (ECHR). It explores how the use of predictive algorithms in welfare sanctioning affects the procedural rights of benefit recipients, particularly in relation to their right of access to information as a component of the equality of arms. Drawing on examples from Sweden, Denmark, and the Netherlands, alongside relevant European Court of Human Rights caselaw and social security literature, the findings suggest that while automation offers certain benefits, such as efficiency, these do not mitigate the disadvantages caused by the opacity of the algorithms used. The article highlights how this opacity limits recipients’ ability to identify potential biases and discrimination, with special attention to expert opinions and the imposition of benefit sanctions under domestic administrative law, ultimately hindering their ability to effectively challenge sanction decisions.