Right to allowance for assistance and care from another person
29.09.2022
Scope
of the Analysis:
1. Verdict U-4 nr. 538/2019 from 03.10.2019 of the Administrative court, by which the lawsuit against the Decision 10-2088/2019 from 07.06.2019 adopted by the Ministry of Labor and Social Policies – MLSP is accepted, the Decision is nullified and the case is returned to repeated deciding;
2. Verdict U-4 nr. 436/2020 from 15.02.2021 of the Administrative court by which the lawsuit against the decision 10-2088/2019 from 11.09.2020adopted by the Ministry of Labor and Social Policies – MLSP is accepted, the Decision is nullified and the Ministry is obliged to adopt a new individual administrative act within 15 days from the effectiveness of the Verdict.
Summary:
The natural person D.R. from Skopje is facing several serious health problems. Since 2016 she started to exercise the right to allowance for assistance and care from another person with a Decision nr. 3728 UP1/353/16 from 20.10.2016 adopted by the PI Inter-municipal center for social work Skopje-Center. The decision contains an obligation for the person to conduct a control check-up after 24 months.
After the expiry of 24 months and upon filed new request for continuance of the right, she received a new Decision nr. 3728 UP1/812 from 21.05.2019 adopted by the PI Inter-municipal center for social work Skopje-Center. With this Decision, the right to allowance for assistance and care from another person ceases, with the explanation that as per the finding, assessment and opinion for the need for assistance and care from another person of the Professional Commission nr. 1104-23270/2 from 06.11.2018, the conditions as set in the Law on Social Protection are not fulfilled.
Within the given timeframe, D.R. has managed to file an Appeal to the MLSP. Deciding upon the Appeal, the MLSP adopted a Decision nr. 10-2088/2019 from 07.06.2019, by which the Appeal is rejected as unfounded and the Decision is confirmed. In the Decision, MLSP states that it has bee adopted on grounds of the documents in the case, the received medical documentation and on the grounds of the findings, assessment and opinion on the need for assistance and care of the Second instance Commission.
Dissatisfied by the decision, D.R. initiated an administrative dispute before the Administrative court. On 03.10.2022, the Administrative court adopted a Verdict U-4 nr. 358/2019, by which it accepted the lawsuit, nullified the disputed decision adopted by MLSP and returned the case to repeated deciding. In the Verdict, the Court found that the bodies have conducted the procedure invalidly, on grounds of which they incorrectly and incompletely determined the actual situation and adopted an invalid decision. This standing of the Court is based on the determined violations of the procedural rules, since the Findings of the Professional Commission are based on medical documentation only, without conducting physical examination, which, as prescribed with Article 11 from the Rulebook on the manner of exercising the right to allowance for assistance and care from another person, is mandatory. The Court found that without this physical examination, the Professional commission failed to provide sufficient elaboration on the improved health condition of the plaintiff that led to lose of the need for assistance and care from another person. The Court also found that in the part of the Decision that examines the cumulative results from the examinations, the defendant only listed the number of specialist reports, without taking into consideration the diagnosis and the fact that D.R. is an old person with two strokes, with instable walk, disturbed balance, inability to move independently, with significant pain in the muscles and ankles, with disturbed and impaired speech and need for assistance with exercising everyday tasks.
In addition to this, the Court had found contradiction between the dispositive and the summary of the first-instance decision, assessing the dispositive as unclear. The reason for this, the Court finds in the fact that paragraph 1 of the Decision states that the right ceases, while paragraph 2 states that a decision without number and date ceases to be valid due to lack of renewal before the Center.
The Court gives instructions that in the repeated procedure the bodies are obliged to conduct immediate examination of the plaintiff and to clearly and unambiguously to elaborate the health condition of the plaintiff.
The Ministry of Labor and Social Policy acted upon the instructions given by the Administrative court and adopted the Decision 10-2088/2019 from 30.10.2019. With this Decision, the Ministry had accepted the Appeal filed by D.R., had nullified the Decision nr. 3728-UP1/812 од 21.05.2019 adopted by the PI Inter-municipal Center for Social Work – Skopje, and returned the case to repeated examination and decision to the first-instance body, with an instruction to act upon the instructions of the Administrative court.
In the repeated procedure before the authorized CSW, a Decision nr. 3728-UP1/812/1 has been adopted on 07.07.2020. The dispositive of this decision states that as of the day of the entry into force of this Decision, the Decision nr.3728/UP1/812 from 21.05.2019 ceases to be valid, and that the new Decision shall apply as from 28.09.2018 – retroactively. The Decision is adopted on grounds of the Findings, assessment and opinion on the need for assistance and care from another person of the Professional Commission with nr. 1-1085/20 from 10.06.2020, where the Commission on grounds of the gathered documentation determined that there is no need for assistance and care from another person, with a note that new documentation needs to be obtained.
D.R. filed another Appeal to the MLSP, accompanied by additional evidence on her health condition, i.e. on her heavy physical disability, which proved that as of the moment she was granted with the right, her health condition had not improved at all, it has even worsened. In the Appeal it is stated that the Professional Commission had once again reached the Findings on grounds of the documentation and without physical control check-up.
On 11.09.2020, MLSP acted upon the Appeal and adopted the Decision 10-2088/2019 by which it rejected the Appeal as unfounded, and confirmed the disputed Decision reached by the authorized CSW.
D.R. filed a lawsuit against this Decision before the Administrative court. On 15.02.2021, the Administrative court adopted the Verdict U-4 nr. 436/2022 by which the lawsuit is accepted, the Decision is nullified, the case is returned to repeated deciding and the defendant is obliged to adopt a separate administrative act within 15 days from the effectiveness of the Verdict.
The Court took into consideration Article 60 para 3 and 5 from the Law on Administrative Disputes, as per which, when the Court nullifies an act against which an administrative dispute was initiated, the case can be returned in the state as before the adoption of the disputed act. With that, the Court states that the defendant is obliged by the legal opinion of the Court when it comes to the application of the material law and its standings regarding the procedure given in the Verdict and that the defendant is obliged to act in that direction once the Verdict becomes effective. The Court emphasized the need for the defendant in the repeated deciding to take into consideration all of the quoted provisions from the Law on General Administrative Procedure (Article 10), the Law on Social protection (Article 48 and 49), the Rulebook on the manner of granting the right to allowance for assistance and care from another person (Article 10) as well as the instructions given by the Administrative court. The Court had especially instructed the defendant to determine the fact whether in this case the criteria for exercising this right are met, as well as to conduct physical examination of the plaintiff, to re-examine the evidence in order to reach rightful and legal decision.
After the receipt of this Verdict, the first instance body – CSW understood its mistake that was repeated in the previous two procedures and adopted a Decision by which it granted the plaintiff the right to enjoy allowance for assistance and care from another person. However, even in the adoption of this Decision, the first instance body failed to follow the instructions of the Administrative court and once again failed to conduct physical examination of the plaintiff as per the instructions given in the Verdict of the Administrative court of Republic of North Macedonia in order to determine her health condition, and the Decision is once again based on medical documentation only, which had been delivered with all of the previous requests and appeals.
Conclusion and significance of the Verdicts:
These Administrative court Verdicts are of utmost significance since they not only show the direction of the decision-making body towards a lawful decision trough a lawful application of the material law and determination of the actual situation in the specific case, but they also provide guidelines for every other same or similar action by the centers for social work when deciding upon requests for social allowances.
Regarding specific aspects of this case that can be used for other cases, one can highlight the multiple adoption of the decisions by the first and second instance body without even determining the actual situation and the list of omissions in their acts and procedures, which directly damages the vulnerable person which has been left without social protection for three years, incorrectly and illegally. The Administrative court in the both Verdicts finds violations of the procedure and provides instructions towards complete determination of the actual situation, which is one of the basic principles of a lawful decision. What is arguable is the fact that the body, even after these instructions, has adopted the last decision, by which it approved the request, without conducting an immediate examination. These verdicts of the Administrative court serve to finally clear the dilemma whether it is legal to assess the right only on grounds of documentation without conducting physical examination which could clearly describe the health condition.
Regarding assessment of the evidence, their significance can be seen from the conducted public hearings of the Administrative court, which provide guidelines for conduction and treatment of the right of free assessment of evidence. The actions of the Court, especially its treatment of assessing each end every evidence separately and further the assessment of their interrelated connection, lead to an example and guidance for correct and complete establishment of the actual situation. Furthermore, through conducting the public hearings the Court conducts an immediate examination in the personality of the plaintiff who is present during the hearing, and determines all of the legal elements and preconditions which should be used by the defendant to approve the right.
1. Verdict U-4 nr. 538/2019 from 03.10.2019 of the Administrative court, by which the lawsuit against the Decision 10-2088/2019 from 07.06.2019 adopted by the Ministry of Labor and Social Policies – MLSP is accepted, the Decision is nullified and the case is returned to repeated deciding;
2. Verdict U-4 nr. 436/2020 from 15.02.2021 of the Administrative court by which the lawsuit against the decision 10-2088/2019 from 11.09.2020adopted by the Ministry of Labor and Social Policies – MLSP is accepted, the Decision is nullified and the Ministry is obliged to adopt a new individual administrative act within 15 days from the effectiveness of the Verdict.
Summary:
The natural person D.R. from Skopje is facing several serious health problems. Since 2016 she started to exercise the right to allowance for assistance and care from another person with a Decision nr. 3728 UP1/353/16 from 20.10.2016 adopted by the PI Inter-municipal center for social work Skopje-Center. The decision contains an obligation for the person to conduct a control check-up after 24 months.
After the expiry of 24 months and upon filed new request for continuance of the right, she received a new Decision nr. 3728 UP1/812 from 21.05.2019 adopted by the PI Inter-municipal center for social work Skopje-Center. With this Decision, the right to allowance for assistance and care from another person ceases, with the explanation that as per the finding, assessment and opinion for the need for assistance and care from another person of the Professional Commission nr. 1104-23270/2 from 06.11.2018, the conditions as set in the Law on Social Protection are not fulfilled.
Within the given timeframe, D.R. has managed to file an Appeal to the MLSP. Deciding upon the Appeal, the MLSP adopted a Decision nr. 10-2088/2019 from 07.06.2019, by which the Appeal is rejected as unfounded and the Decision is confirmed. In the Decision, MLSP states that it has bee adopted on grounds of the documents in the case, the received medical documentation and on the grounds of the findings, assessment and opinion on the need for assistance and care of the Second instance Commission.
Dissatisfied by the decision, D.R. initiated an administrative dispute before the Administrative court. On 03.10.2022, the Administrative court adopted a Verdict U-4 nr. 358/2019, by which it accepted the lawsuit, nullified the disputed decision adopted by MLSP and returned the case to repeated deciding. In the Verdict, the Court found that the bodies have conducted the procedure invalidly, on grounds of which they incorrectly and incompletely determined the actual situation and adopted an invalid decision. This standing of the Court is based on the determined violations of the procedural rules, since the Findings of the Professional Commission are based on medical documentation only, without conducting physical examination, which, as prescribed with Article 11 from the Rulebook on the manner of exercising the right to allowance for assistance and care from another person, is mandatory. The Court found that without this physical examination, the Professional commission failed to provide sufficient elaboration on the improved health condition of the plaintiff that led to lose of the need for assistance and care from another person. The Court also found that in the part of the Decision that examines the cumulative results from the examinations, the defendant only listed the number of specialist reports, without taking into consideration the diagnosis and the fact that D.R. is an old person with two strokes, with instable walk, disturbed balance, inability to move independently, with significant pain in the muscles and ankles, with disturbed and impaired speech and need for assistance with exercising everyday tasks.
In addition to this, the Court had found contradiction between the dispositive and the summary of the first-instance decision, assessing the dispositive as unclear. The reason for this, the Court finds in the fact that paragraph 1 of the Decision states that the right ceases, while paragraph 2 states that a decision without number and date ceases to be valid due to lack of renewal before the Center.
The Court gives instructions that in the repeated procedure the bodies are obliged to conduct immediate examination of the plaintiff and to clearly and unambiguously to elaborate the health condition of the plaintiff.
The Ministry of Labor and Social Policy acted upon the instructions given by the Administrative court and adopted the Decision 10-2088/2019 from 30.10.2019. With this Decision, the Ministry had accepted the Appeal filed by D.R., had nullified the Decision nr. 3728-UP1/812 од 21.05.2019 adopted by the PI Inter-municipal Center for Social Work – Skopje, and returned the case to repeated examination and decision to the first-instance body, with an instruction to act upon the instructions of the Administrative court.
In the repeated procedure before the authorized CSW, a Decision nr. 3728-UP1/812/1 has been adopted on 07.07.2020. The dispositive of this decision states that as of the day of the entry into force of this Decision, the Decision nr.3728/UP1/812 from 21.05.2019 ceases to be valid, and that the new Decision shall apply as from 28.09.2018 – retroactively. The Decision is adopted on grounds of the Findings, assessment and opinion on the need for assistance and care from another person of the Professional Commission with nr. 1-1085/20 from 10.06.2020, where the Commission on grounds of the gathered documentation determined that there is no need for assistance and care from another person, with a note that new documentation needs to be obtained.
D.R. filed another Appeal to the MLSP, accompanied by additional evidence on her health condition, i.e. on her heavy physical disability, which proved that as of the moment she was granted with the right, her health condition had not improved at all, it has even worsened. In the Appeal it is stated that the Professional Commission had once again reached the Findings on grounds of the documentation and without physical control check-up.
On 11.09.2020, MLSP acted upon the Appeal and adopted the Decision 10-2088/2019 by which it rejected the Appeal as unfounded, and confirmed the disputed Decision reached by the authorized CSW.
D.R. filed a lawsuit against this Decision before the Administrative court. On 15.02.2021, the Administrative court adopted the Verdict U-4 nr. 436/2022 by which the lawsuit is accepted, the Decision is nullified, the case is returned to repeated deciding and the defendant is obliged to adopt a separate administrative act within 15 days from the effectiveness of the Verdict.
The Court took into consideration Article 60 para 3 and 5 from the Law on Administrative Disputes, as per which, when the Court nullifies an act against which an administrative dispute was initiated, the case can be returned in the state as before the adoption of the disputed act. With that, the Court states that the defendant is obliged by the legal opinion of the Court when it comes to the application of the material law and its standings regarding the procedure given in the Verdict and that the defendant is obliged to act in that direction once the Verdict becomes effective. The Court emphasized the need for the defendant in the repeated deciding to take into consideration all of the quoted provisions from the Law on General Administrative Procedure (Article 10), the Law on Social protection (Article 48 and 49), the Rulebook on the manner of granting the right to allowance for assistance and care from another person (Article 10) as well as the instructions given by the Administrative court. The Court had especially instructed the defendant to determine the fact whether in this case the criteria for exercising this right are met, as well as to conduct physical examination of the plaintiff, to re-examine the evidence in order to reach rightful and legal decision.
After the receipt of this Verdict, the first instance body – CSW understood its mistake that was repeated in the previous two procedures and adopted a Decision by which it granted the plaintiff the right to enjoy allowance for assistance and care from another person. However, even in the adoption of this Decision, the first instance body failed to follow the instructions of the Administrative court and once again failed to conduct physical examination of the plaintiff as per the instructions given in the Verdict of the Administrative court of Republic of North Macedonia in order to determine her health condition, and the Decision is once again based on medical documentation only, which had been delivered with all of the previous requests and appeals.
Conclusion and significance of the Verdicts:
These Administrative court Verdicts are of utmost significance since they not only show the direction of the decision-making body towards a lawful decision trough a lawful application of the material law and determination of the actual situation in the specific case, but they also provide guidelines for every other same or similar action by the centers for social work when deciding upon requests for social allowances.
Regarding specific aspects of this case that can be used for other cases, one can highlight the multiple adoption of the decisions by the first and second instance body without even determining the actual situation and the list of omissions in their acts and procedures, which directly damages the vulnerable person which has been left without social protection for three years, incorrectly and illegally. The Administrative court in the both Verdicts finds violations of the procedure and provides instructions towards complete determination of the actual situation, which is one of the basic principles of a lawful decision. What is arguable is the fact that the body, even after these instructions, has adopted the last decision, by which it approved the request, without conducting an immediate examination. These verdicts of the Administrative court serve to finally clear the dilemma whether it is legal to assess the right only on grounds of documentation without conducting physical examination which could clearly describe the health condition.
Regarding assessment of the evidence, their significance can be seen from the conducted public hearings of the Administrative court, which provide guidelines for conduction and treatment of the right of free assessment of evidence. The actions of the Court, especially its treatment of assessing each end every evidence separately and further the assessment of their interrelated connection, lead to an example and guidance for correct and complete establishment of the actual situation. Furthermore, through conducting the public hearings the Court conducts an immediate examination in the personality of the plaintiff who is present during the hearing, and determines all of the legal elements and preconditions which should be used by the defendant to approve the right.