A petitioner who had difficulties obtaining disability status wrote to the Ombudsman. He has been unable to obtain disability status, despite the health problems he has been experiencing for most of his life, which have been a significant handicap. Although he has a recognised physical impairment of 70 %, and although the proposal to grant him the status of disabled person was made by his personal physician following a serious deterioration in his health, the ZPIZ has not detected the petitioner's disability, as his treatment has not yet been completed. The Ombudsman identified a lack of compliance with the Convention on the Rights of Persons with Disabilities in the existing legislation governing disability protection; in the present case, the Ombudsman advised the petitioner to reapply for recognition of his disability rights, to refer to the Convention and, in the process of assessing his disability, to try to prove the link between his actual state of health and the restrictions he therefore suffers from in his work, occupation, activities and life in general. The Ombudsman has found violations of the rights of persons with disabilities in the petition.

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The Ombudsman of the Republic of Slovenia (the Ombudsman) was contacted by the petitioner, who cited problems with the recognition of the status of a disabled person and the acquisition of the rights arising therefrom. He stated that he had Guillain-Barre Syndrome (GBS). He has difficulty walking, cannot squat, has to pick things up off the floor with his knees outstretched, and his finger function is impaired. Despite this, he works full-time as an IT engineer with effort and diligence.

In 2023, following an appeal, he was recognised as having a 70% physical impairment, for which he is entitled to credited service. However, the petitioner has failed to obtain disability status and the rights that would follow. He first attempted to obtain a disability category and disability insurance benefits in 2017, and again in 2023 due to a drastic deterioration of his knees, when his personal physician made a proposal to claim disability insurance benefits. On both occasions, the decision of the ZPIZ was the same; the invalidity committee did not detect the petitioner's disability, on the grounds that he was in need of further medical treatment or measures by the medical profession that could affect the changes in his state of health. In this connection, reference was made to Article 63 of the Law on Pension and Invalidity Insurance (ZPIZ-2), which provides that a disability is established if, as a result of changes in the state of health which cannot be remedied by treatment or medical rehabilitation measures and which are established in accordance with ZPIZ-2, the insured person's chances of securing or retaining a job or of undergoing vocational rehabilitation are impaired.

The Ombudsman contacted the Ministry of Labour, Family, Social Affairs and Equal Opportunities (the ministry) with an enquiry.

The ministry explained to the Ombudsman that it is aware of the importance of the area of all vulnerable groups, including persons with disabilities. The amendment of the ZPIZ-2 is currently under process and, upon its implementation, the impact of this regulation on the Act on Employment Rehabilitation and Employment of Disabled Persons and on the Act on Social Integration of Disabled Persons, the latter (Article 3) currently subject to constitutional review, will be examined. The ministry also stated that it responds proactively to the Ombudsman's findings, which are based on individual cases in which individuals with practically identical barriers and medical conditions have been granted different rights in the field of a particular regulation, and reminds decision-makers of the uniform criteria for conducting the administrative procedure through circulars, opinions and guidelines (the exercise of pension and disability insurance rights is also governed by these rules). The ministry further stressed that individual regulations regulate rights and obligations for specific target groups, which may or may not be comparable to each other, and stated that there is no automatism in the granting of rights, as not all persons with disabilities automatically acquire all rights; they are acquired on an individual basis, in such a way that the individual acquires the rights that he/she needs due to his/her disability.

The ministry concluded that the legal framework follows the provisions of the Convention on the Rights of Persons with Disabilities (CRPD), and that it provides not only cash benefits but also other rights to persons with disabilities.

In his reply, the Ombudsman expressed his disappointment and deep concern at this response, as he had already made public on several occasions, and in this connection demanded changes and action by those responsible, namely that the medical model of disability, which is enshrined in national legislation, should be replaced by a social model derived from the CRPD. This model is based on the assumption that disability does not derive solely from the individual's sphere or state of health, but from the barriers that the individual faces in integrating into the environment. In line with the social model of disability set out in the CCI, the definition of disability needs to be amended and standardised to ensure that individuals with the same limitations are no longer provided with different levels of social protection or rights. It is a fact that the legislation regulating the field of persons with disabilities does not follow the CCI and is not in line with the CCI, as the Ombudsman and other institutions (e.g. the Equality Ombudsperson) have been pointing out to the ministry for several years. In this context, the Ombudsman has called on the ministry to adopt legislation that is in line with the CCI and the international standards on the concept of disability, in order to eliminate violations of the rights of persons with disabilities. The amendment of the ZPIZ-2, as announced by the ministry, can only be a first step in this direction, we added in our appeal to the ministry.

In the light of the response of the ministry the Ombudsman advised the petitioner that it would be reasonable to address a proposal or request to the ZPIZ for the claiming of pension and invalidity insurance rights again.

Then, in this procedure (and in subsequent legal proceedings), it is necessary to prove that the conditions of Article 63 of the Social Insurance Act-2, which excludes from the definition of disability the condition of a permanent change in the state of health, have been met. According to that Article, disability is established if, as a result of changes in the insured person's state of health which cannot be remedied by treatment or medical rehabilitation measures and which are established by the ZPIZ-2, the insured person's ability to secure or maintain a job or to advance in his or her career is impaired. However, Article 94 of the ZPIZ-2 provides for a medical check-up for expected improvements or deterioration in the state of health.

As regards the end of the treatment itself, in its reply to the petitioner, the Ombudsman informed the petitioner that in this connection, the Higher Labour and Social Court has already pointed out in several cases (including in its Judgment, VDSS, Psp 133/2022) that the question of the end of the treatment must be assessed on a case-by-case basis. Even if, from the point of view of the medical profession and doctrine, further diagnostic and therapeutic treatment is indicated for the patient, it is necessary to take into account, when assessing the disability, the actual health status in relation to work, his profession and activity referred to in Article 63(3) and (4) of the Social Insurance Act (ZPIZ-2).

According to the provisions of the Ombudsman Act, the Ombudsman cannot force the competent authorities to act correctly or change their decisions retroactively in any way; therefore, we explained to the petitioner that he has a new procedure for claiming his rights under pension and invalidity insurance and then, in case of disagreement with the decision, a legal remedy procedure.

We registered the petition as well-founded; we found violations of the rights of persons with disabilities. In order to prevent such situations and violations from occurring again in the future, let us once again publicly address the issue of non-compliance of national legislation with the CRPD and international standards on the concept of disability and on the decision-making on pension and disability insurance rights and demand changes. 9.2-14/2024