No nursing benefit for premature retiree. Case goes to Strasbourg

♦ A carer for an adult with a disability is unable to claim a nursing benefit on account of receiving a minimum early retirement pension.  

♦ Helsinki Foundation lawyers say the carer has been discriminated against. The case was brought before the European Court of Human Rights.

♦ The ECtHR application was drafted by the Helsinki Foundation for Human Rights and a legal team from CMS Cameron McKenna Nabarro Olswang Pośniak i Bejm sp.k.

The case concerns Maria Kowalska (the name has been changed to protect the woman’s privacy), a long-time carer of her (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 benefit (known as the “EWK Pension”) based on special provisions of law. The monthly amount of her EWK Pension is PLN 935, whereas the nursing benefit, which she can no longer receive, is PLN 1583.

No eligibility for the nursing benefit

The currently applicable provisions of the Family Benefits Act exclude the possibility of awarding a nursing benefit, in full or in part, to carers of persons with a disability who have the right to claim a pension or disability benefit, irrespective of their amount. For these reasons, the competent body (a mayor) denied Ms Kowalska’s application for the grant of a nursing benefit. The decision was later upheld by the Local Government Board of Appeals and by a Provincial Administrative Court and, ultimately, Supreme Administrative Court. We have reported here (https://archiwum.hfhr.pl/nsa-bez-zmiany-prawa-opiekun-na-wczesniejszej-emeryturze-nie-otrzyma-swiadczenia-pielegnacyjnego/) and here (https://archiwum.hfhr.pl/skarga-do-wsa-w-sprawie-odmowy-przyznania-swiadczenia-pielegnacyjnego/) on how the case unfolded.

In domestic proceedings, Maria Kowalska was represented by Ms Katarzyna Kucharczyk and Mr Bartłomiej Kowalczyk of CMS Cameron McKenna.

Application to the Strasbourg Court

In the application to the European Court of Human Rights, Maria Kowalska’s lawyers argued violations of the right to respect for property (Article 1 of the Protocol to the European Convention on Human Rights), the right to respect for private life (Article 8 of the Convention) and the prohibition of discrimination (Article 14 of the Convention).

“If the State decides to provide welfare benefits, the eligibility conditions cannot be determined in a discriminatory manner”, says Katarzyna Kucharczyk, an attorney of CMS Cameron McKenna.  “Polish lawmakers have adopted a solution which prevents people from claiming a nursing benefit if they are found eligible for an early retirement pension, regardless of the pension’s amount. This approach is arbitrary and unreasonable. All carers of persons with a disability should receive a similar level of support from authorities” Ms Kucharczyk adds.

Despite several attempts, the Parliament has ultimately failed to amend the relevant pension laws to ensure that all carers of persons with disabilities are treated equally.

“We should remember that financial benefits are a form of assistance received by persons with a disability who need help with independent living and being fully integrated into society, which is referred to in key international instruments such as the Convention on the Rights of Persons with Disabilities”, explains HFHR lawyer Jarosław Jagura. “Publicly funded financial assistance from may prove to be one of the guarantees of the right to respect for the dignity of these persons”, the lawyer adds.

Key points of the ECtHR application

• The Nursing Benefits Act excludes the eligibility of persons who have claimed an early retirement pension for the nursing benefit, regardless of the pension’s amount.
• Maria Kowalska has never had a choice between the nursing benefit and early retirement. Nowadays, the problem is not resolved even if the payment of an early retirement pension is suspended: what matters is whether the person has been determined to be eligible for the pension and not whether they are receiving it.
• Although the European Convention on Human Rights does not guarantee the right to acquire property, when a state decides to provide a specific benefit, its eligibility conditions must be established on a non-discriminatory basis.
• The persons who have resigned from gainful employment because of the need to care for a loved one with a disability, and as a result cannot earn an income sufficient to meet at least some of the family’s needs, are a group of individuals in a similar situation and, as far as access to welfare benefits is concerned, should be treated in a similar way.
• The exclusion of the possibility of claiming a nursing benefit due to the confirmed entitlement to any, even the lowest, early retirement pension is an arbitrary act of the legislator. The fact that a person caring for a child with a disability has a formal right to early retirement does not automatically mean that they have enough money to support themselves and their family.
• The applicant cannot even receive the difference between her pension and the nursing benefit, which is disproportionate.
• Her inability to claim the nursing benefit has a negative impact on Maria Kowalska’s private life, making it significantly more difficult for her to care for her disabled child. She needs the benefit money to satisfy the basic needs – her own and those of a person with a disability.

Timeline:

⇒ 1976 – Maria Kowalska gives birth to her son
⇒ 1995 – Maria Kowalska acquires the right to a special early retirement pension
⇒ February 2017 – Maria Kowalska applies for the nursing benefit
⇒ February 2017 – a mayor refuses to confirm Ms Kowalska’s eligibility for the nursing benefit
⇒ April 2017 – a Local Government Board of Appeals upholds the Mayor’s decision
⇒ September 2017 – a Provincial Administrative Court dismisses the appeal against the decision of the LGBA
⇒ July 2018 – the Supreme Administrative Court dismisses Maria Kowalska’s complaint in cassation, upholding the refusal decision.
⇒ April 2019 – the application is lodged with the European Court of Human Rights