According to the Human Rights Ombudsman of the Republic of Slovenia, it is contrary to the provisions of the Personal Assistance Act (ZOA) when the procedure of re-evaluation of eligibility for personal assistance is carried out under Paragraph 3 of Article 22a of the ZOA, if the user's changed needs have not been previously detected or determined by type and the amount of personal assistance service hours or other circumstances justifying reassessment. The Ministry of Labour, Family, Social Affairs and Equal Opportunities accepted the position in principle and assured that in the future, when notifying social work centres regarding reports of suspected abuse of personal assistance, it will use clearer communication regarding the implementation of the next stages in the process of receiving such reports, and will also alert all disability care coordinators about the appropriate treatment.

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The Human Rights Ombudsman of the Republic of Slovenia (Ombudsman) received a complaint against the decision of a centre for social work (Centre) regarding the right to personal assistance (OA). The Ombudsman immediately referred the complaint to the competent centre for resolution. The Ombudsman asked the Centre for an explanation of how the decision was made to introduce the process of re-evaluation of eligibility for OA. In doing so, the Ombudsman did not in any way assess whether the complainant is entitled to OA and to what extent.

The Centre explained that an anonymous report had been submitted about the suspicion of abuse of OA, and therefore, following the instructions of the Ministry of Labour, Family, Social Affairs and Equal Opportunities (MDDSZ), a new procedure for assessing entitlement to personal assistance was introduced. Following additional calls, the Centre explained that in case of suspicion of OA abuse, they check the actual situation in the field. If the user's health status, social network, etc. are unchanged and suspicion of abuse is not established, they do not initiate a process to re-evaluate OA eligibility. If there is a well-founded suspicion of abuse, the expert committee of the Social Protection Institute of the Republic of Slovenia is called to re-evaluate eligibility.

According to the Ombudsman’s findings, this did not hold true in this case. The received documentation shows that the MDDSZ sent an email to the Centre, with which it instructed them to immediately introduce the procedure of re-evaluation of eligibility for OA ex officio. It is also evident from the documentation that on the same day the Centre forwarded a letter to the complainant informing her that, in accordance with Article 22a of the Personal Assistance Act (ZOA), an ex officio reassessment of her eligibility for OA would be carried out. The letter states the content of Paragraphs 1 and 4 of Article 22a of the ZOA. The Centre also asked the complainant to submit various pieces of evidence and a statement about the need for OA services when performing activities related to independent personal and family life, integration into the environment, education, and employment.

Taking into account the entire communication between the MDDSZ and the Centre, according to the Ombudsman, the conduct of both institutions in the case was contrary to the provisions and purpose of the ZOA, which consequently led to an interference with the complainant's right to OA and thus also to an interference with her rights under Article 52 of the Constitution of the Republic of Slovenia.

In accordance with the provision of Article 22a of the ZOA, the possibility of re-evaluating the entitlement to OA according to Paragraph 2 ex officio and according to Paragraph 3 exists in cases where the coordinator proposes a re-evaluation for an individual user, if they believe that in terms of the types and scope of hours of personal services assistance or other circumstances, the needs of the user have changed, justifying a reassessment.

In the Ombudsman's opinion, it follows from the received documentation that in the specific case the reassessment procedure was carried out according to Paragraph 2. This is indicated both by the absence of the coordinator's proposal, which would otherwise be required by Paragraph 3, and by the content of the communication between the Centre and the MDDSZ and the Centre and the initiator.

The MDDSZ stopped the procedures of re-evaluation of eligibility for OA according to Paragraph 2 of Article 22a with an instruction to all centres for social work. It is likely that in part this happened due to the warnings of the Ombudsman that there is a risk that reassessment pursuant to Paragraph 2 of Article 22a of the ZOA would interfere with the rights of some users, since the legality of the relationship protects the individual with respect to already acquired rights, except in cases where the law determines differently in advance.

According to the Ombudsman, the only correct way would be a reassessment according to Paragraph 3 of Article 22a of the ZOA, which, however, before submitting the documentation for reassessment to the IRSSV, requires either the coordinator's conclusion that they are aware of the changed needs of the user in terms of the types and scope of hours of OA services, or the coordinator's conclusion that they are aware of other circumstances that justify a reassessment. According to the Ombudsman, as other circumstances from the previous sentence, it is possible to understand possible findings that the individual has abused the right and does not actually need it to the extent that it was granted to them.

According to the Ombudsman, in this particular case, this would first require a finding by the Centre regarding the validity of the statements in the application, i.e. first of all in the direction of which of the statements in the application are at all relevant to the issue of entitlement to OA, and further, regarding those that are relevant, whether they are justified at all. Despite the different explanations of the Centre, in this particular case there is not even the slightest trace in the received documentation that would at least indicate that the Centre checked the application's statements in any way, either in terms of relevance or in terms of validity. Moreover, the Centre informed the complainant about the initiation of the reassessment procedure on the same day that it received the "instruction" from the MDDSZ to carry out the procedure. In the letter to the complainant, the Centre did not even indicate what the reason for the reassessment could be or what circumstances from the application should be investigated – the Centre did not ask any questions regarding these circumstances.

In addition, the Ombudsman also drew attention to irregularities that, in the Ombudsman's opinion, occurred in the work of the MDDSZ. If the MDDSZ is aware of circumstances that indicate that an individual beneficiary of OA should not be entitled to the right, it should inform the coordinator of these circumstances, who, according to Paragraph 3 of Article 22a, has grounds for further action. However, it is unacceptable that the MDDSZ requires the Centre to immediately start the reassessment process, with the sole justification that it is an anonymous report. With such a demand, the MDDSZ, which otherwise has the role of an appeals body against the decisions of the Centre, became so involved in the work of the first-level body that this may call into question the objectivity of the MDDSZ in the appeal decision-making process.

In relation to the opinion, the Ombudsman received a response from the MDDSZ, in which they explain that after receiving a report of suspected abuse of personal assistance services, the Centre was immediately notified and instructed to determine the actual situation in the provision of personal assistance services in connection with the suspected abuse and, with justification, re-introduces the procedure for assessing entitlement to personal assistance services, as it usually does, which is not consistent with the facts as they emerge from the available documentation. However, the MDDSZ obviously recognised the position of the Ombudsman, as it stated in the conclusion that in the future, when informing social work centres about reports of suspected abuse of personal assistance, the ministry will use clearer communication regarding the implementation of the next stages in the process of receiving such reports, while at the next joint meeting with social work centres, the ministry will also specifically warn all disability care coordinators about this appropriate action.

According to the Ombudsman, the rights of the complainant were interfered with in the specific procedure, but this finding does not affect her legal position. The Ombudsman informed the complainant that her right will be decided on in the decision-making process on the appeal and, if necessary, also in court proceedings. 9.6-13/2023