Complaint to Administrative Court against denial of nursing benefit

Maria Korzeniewska* has been denied a nursing benefit granted to a carer of a person with a disability, because she receives a pension (which is half the amount of the nursing benefit) and the law excludes the possibility of simultaneous payment of a pensions and benefit.  Pro bono attorneys of CMS Cameron McKenna Greszta i Sawicki, who agreed to represent Ms Korzeniewska in a gesture of courtesy to the HFHR, have complained against the unfavourable decision denying the payment of the benefit to the Provincial Administrative Court.

In the complaint, the lawyers noted that applying the law in line with constitutional standards should lead to the award of a nursing benefit in the amount being the difference between the amount of the benefit and the pension received by Ms Korzeniewska.

Nursing benefit or pension

For many years Ms Korzeniewska has been caring for his currently adult son with a disability. Despite her caring duties, the woman was able to take up casual and home-based jobs, which allowed her to obtain early retirement based on special provisions. It amounts to PLN 854, whereas the nursing benefit which was not granted to her is PLN 1,406.

The currently applicable provisions of the Family Benefits Act exclude the possibility of awarding a nursing benefit to carers of persons with disabilities who have the right to a pension or disability benefit, irrespective of their amount. For these reasons, the mayor denied Ms Korzeniewska’s application for the granting of a nursing benefit. The decision was upheld by the Local Government Board of Appeals.

Complaint to Administrative Court

In the proceedings for the award of the nursing benefit, Maria was represented by Ms Katarzyna Kucharczyk and Mr Bartłomiej Kowalczyk from CMS Cameron McKenna Greszta i Sawicki sp. k. who act pro bono, in a gesture of professional courtesy to the Helsinki Foundation.

“In the complaint submitted to the Provincial Administrative Court, we argue that the court should give a proconstitutional interpretation of the Family Benefits Act and take proper account of constitutional norms, and especially of the principle of equality. Such interpretation should lead to the conclusion that Ms Korzeniewska is entitled to a nursing benefit in the amount at least equal to the difference between the current rate of nursing benefit and her pension. Denial of her entitlement to a nursing benefit puts her in a less favourable situation than that of vocationally inactive carers of children with disabilities”, says Katarzyna Kucharczyk.

“Although, technically speaking, nursing benefits are awarded to carers, in reality, they are designed to provide the means of subsistence for persons with a disability. In accordance with the Constitution, public authorities are obliged to assist families facing a difficult financial or social situation and provide aid for persons with disabilities. These values should support the argument for awarding equal support for all carers”, explains Bartłomiej Kowalczyk.

“In itself, a pension entitlement of carers does not change dramatically their situation because they may still have insufficient funds to satisfy their own need and those of the persons with a disability. A reference to such a formal criterion, which disregards the actual amount of the pension in question, may be arbitrary and unjustified. This also results in an unequal treatment of carers in granting them access to support from public authorities”, says Jarosław Jagura, a lawyer working with the HFHR.

* The complainant’s name has been changed.