Varuh ДЌlovekovih pravic

Ministry of Labour, Family, Social Affairs and Equal Opportunities (MDDSZ) Accepted the Ombudsman’s Position on the Limitation as an Essential Criterion for Determining the Minimum Income Security of Persons with Disabilities

The Ombudsman was interested in why persons with the status of a person with disabilities according to the Vocational Rehabilitation and Employment of Persons with Disabilities Act (ZZRZI) were not included among the recipients of the solidarity allowance for eliminating the consequences of energy poverty, and recommended that the Ministry of Labour, Family, Social Affairs and Equal Opportunities should form uniform criteria for granting rights to persons with disabilities with the same limitations. The MDDSZ took the Ombudsman's recommendation into account, and also communicated that even in their opinion, the criterion for distinguishing between persons with disabilities cannot be their disease, but the limitation caused by this disease with the additional condition that it is a long-term disease or condition. The Ombudsman is particularly pleased by such a position of the Ministry, as he has been striving to gain an adequate understanding of the issue for quite some time.

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In May 2022, the Human Rights Ombudsman of the Republic of Slovenia (the Ombudsman), on the basis of a previously taken position, that the arrangement, according to which persons with the status of disabled according to the Vocational Rehabilitation and Employment of Persons with Disabilities Act (ZZRZI) were not included among the recipients of the solidarity allowance during the Covid-19 epidemic, contrary to Article 14 of the Constitution of the Republic of Slovenia in conjunction with Article 52 of the Constitution of the Republic of Slovenia,[1] sent an inquiry to the Ministry of Labour, Family, Social Affairs and Equal Opportunities (MDDSZ) as to why persons with the status of disabled according to ZZRZI were not included among the recipients of the solidarity allowance for eliminating the consequences of energy poverty.[2]

The MDDSZ responded that persons with the status of disabled under the ZZRZI, in contrast to people who have the status of disabled under the Social Inclusion of Disabled Persons Act (ZSVI) and as a rule cannot provide themselves with the means of subsistence, have very different disabilities, and as a result their financial situation is also very different, so they were eligible as recipients of the solidarity allowance to eliminate the consequences of energy poverty (only) if they met the conditions set out in Article 2 of the Act Determining Emergency Measures to Mitigate the Consequences of the Impact of High Energy Commodity Prices (ZUOPVCE); i.e. as socially vulnerable persons. Based on the aforementioned, the Ombudsman considered that the MDDSZ used material circumstances of the disabled persons as a criterion for determining the beneficiaries of the solidarity allowance. According to the Ombudsman, the criterion that binds the social benefit to the material situation of the potential beneficiaries is consistent with the test of reasonableness,[3] so we did not object to it.

We assessed, however, that the MDDSZ did not apply the selected criterion in the preparation of the Act Determining Emergency Measures to Mitigate the Consequences of the Impact of High Energy Commodity Prices (ZUOPVCE) to all persons with the status of disabled in comparable life circumstances. Therefore, an individual incapable of work with the status of a person with disabilities according to the ZSVI obtained the aforementioned allowance regardless of material needs, solely on the basis of the disabled status. Individuals incapable of work with the status of disabled according to the Pension and Disability Insurance Act (ZPIZ-2) were entitled to the allowance only if their disability pension amounted to no higher than 732 euros. Persons employed with restrictions or without remaining ability to work according to ZZRZI were not entitled to the allowance as persons with disabilities at all, but were entitled to the allowance only as recipients of social assistance or compensatory supplement (this means that only the general criterion of social risk was considered for them, which is not comparable to the criterion of the amount of the pension, since such a person or their family member may have even larger assets or incomes). Persons with the status of a person with disabilities with restrictions according to ZPIZ-2 were entitled to the allowance only if, in addition to the disability criterion and the social criterion, they also met the labour law criterion (unemployment or waiting for work).

The Ombudsman did not see a reasonable basis for the described distinction between people with disabilities in essentially the same positions, nor was it provided by the MDDSZ, therefore we concluded that the distinction between persons with the status of disabled according to the ZUOPVCE was contrary to Paragraph 3 of Article 14 of the Constitution of the Republic of Slovenia in connection with the right to the protection of persons with disabilities referred to in Article 52 of the Constitution of the Republic of Slovenia.

The MDDSZ, however, took the Ombudsman's comments into account in the preparation of the proposal of the Act Determining Temporary Measures to Remedy the Consequences of Higher Living Costs of the Most Vulnerable Population Groups (ZZUOPD) and proposed that, in addition to beneficiaries of disability benefits under the Social Inclusion of Disabled Persons Act (ZSVI), persons who received a decision on unemployability due to disability or are involved in the process of employment rehabilitation and receive benefits from employment rehabilitation under the valid ZZRZI, beneficiaries under the War Disability Act (ZVojI), who receive family or disability allowance as the only benefit, and persons with disabilities of category I under ZPIZ-2, who are not entitled to disability pensions, are also entitled to the energy allowance. The bill was passed in the National Assembly.

We are also satisfied that the new Minister for Labour, Family, Social Affairs and Equal Opportunities, in the reply with which MDDSZ informed us that it will follow the views of the Ombudsman regarding the establishment of uniform criteria for granting rights to persons with disabilities with the same limitations,[4] also informed us that in their opinion "the criterion for distinguishing between people with disabilities cannot be their disease, but the limitation caused by this disease with the additional requirement that it is a long-term illness or condition". The Ombudsman welcomes this change in thinking about disability (also)[5] in the area of social benefits and expects that the MDDSZ, which wrote that "the Ombudsman's observation of the issue is worthy of thorough consideration, and the Ministry will also carry it out on the amendment of the aforementioned regulations", will prepare appropriate legislative proposals in the future that will address different minimum income social protection of persons with the status of disabled with the same restrictions. 9.5-11/2022


[1][1] Persons with the status of disabled according to the ZZRZI were entitled to the solidarity allowance only as a (second) socially disadvantaged group and only in the first wave of the epidemic (see: www.varuh-rs.si/obravnavane-pobude/primer/pri-dolocitvi-upravicencev-do-solidarnostnega-dodatka-spregledane-osebe-s-statusom-invalida-po-zzrzi/).

[2] See the Act Determining Emergency Measures to Mitigate the Consequences of the Impact of High Energy Commodity Prices (ZUOPVCE), Article 2.

[3] According to the so-called test of reasonableness, the regulation of a certain right is constitutionally compatible if the legislator regulates different positions differently or the same in the same way on the basis of a reason arising from the nature of things or regulations.

[4] See: www.varuh-rs.si/obravnavane-pobude/primer/vsi-so-enaki-le-da-so-nekateri-malo-bolj/.

[5] Changes in this direction are included in the Equalisation of Opportunities for Persons with Disabilities Act (ZIMI) and the Act on Personal Assistance (ZOA).

 

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