Communicated on 21 April 2015
SECOND SECTION
Application no. 8263/15
István BACZÚR
against Hungary
lodged on 12 March 2013
STATEMENT OF FACTS
The applicant, Mr István Baczúr, is a Hungarian national, who was born in 1958 and lives in Nagykozár. He is represented before the Court by Mr D.Karsai, a lawyer practising in Budapest.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant had worked as a tax inspector at the National Tax and Financial Control Administration until 1996 when he applied for disability retirement. As it appears from the case-file, the medical expert commissioned at the time of his retirement had declared the applicant eligible for rehabilitation; thus he received a rehabilitation benefit until June 2012, the amount of which was eventually 173,980 Hungarian forints (HUF) (approximately 570 euros (EUR)) per month.
On 29 December 2011 Act no. CXCI of 2011 on the Benefits Granted to Persons with Reduced Work Capacity was enacted, effective as of 1 January 2012, which introduced a new system of allowances. Beneficiaries were sent a letter and invited to apply, by 31 March 2012, for a reassessment of their condition by expert committees. Once they had applied for this within the time-limit, they became entitled to a transitional allowance (the amount of which did not differ from that of the previously received allowance or pension) until the reassessment took place. In the reassessment procedure, a disability allowance or a rehabilitation allowance could be granted, depending on the person’s real and actual condition.
On 28 March 2012 the applicant lodged a request for the new disability allowance. His medical examination took place on 8 May 2012 before the expert committee of the National Rehabilitation and Social Authority. The applicant’s state of health was rated at 46% and he was classified as a person suitable for rehabilitation under section 3 (2) point a) of Act no. CXCI of 2011.
Since he did not have at least 180 calendar days with income during the calendar year preceding the first day of the payment, or 180 calendar days with income in the period directly preceding the first day of payment, the applicant’s rehabilitation allowance was calculated on the basis of the minimum wage (at the material time HUF 93,000, approximately EUR 310 per month) and established at 50% of the minimum wage, that is, in the amount of HUF 41,850 (approximately EUR 140) by a decision of the Baranya County Governmental Authority (Directorate of Pension Insurance) on 5 June 2012.
The applicant appealed against the first-instance administrative decision. According to a further medical assessment, the applicant’s health status was at 46% and he was suitable for rehabilitation based on his state of health. However, due to other circumstances, his rehabilitation was not recommended (section 3 (2) point ba) of Act no. CXCI of 2011). Consequently, the National Rehabilitation and Social Authority, acting as a second-instance authority, reversed the first-instance decision and established that the applicant was entitled to a disability allowance in the amount of HUF 55,800 (approximately EUR 180) per month. Again, since the applicant did not have the requisite days with income in the qualifying periods, his allowance was based on the minimum wage and established at 60% of that.
The applicant sought judicial review of the decision, challenging the findings contained in the medical expert opinions concerning his health status and the calculation method of his entitlement. According to a private medical expert commissioned by the applicant himself, his health status was at 37%, rather than 46%.
In its judgment of 4 April 2013 the Pécs Administrative and Labour Court upheld the second-instance administrative decision. Relying on the second statutory medical expert opinion, the court endorsed the second‑instance administrative authority’s findings as to the applicant’s health status. It added that, for the calculation of the amount of disability allowance, it was, in any case, irrelevant whether the health status was rated at 37 or 46%. It held that the administrative authorities’ calculation of the amount was right.
The applicant did not lodge a petition for review with the Kúria.
B. Relevant domestic law
The relevant provisions of Act no. LXXXIV of 2007 on Rehabilitation Benefit, in so far as relevant, provide as follows:
Section 3
“(1) Rehabilitation benefit is due to a person who
a) has suffered 50 to 79% loss of his health status and, in connection with that, he cannot be employed without rehabilitation at his current workplace or at the workplace where he has worked before the deterioration of his health or at any other workplace, and
aa) does not work regularly and
ab) his salary or income is 30% less than the amount he has earned as an average monthly salary during the fourth months preceding the deterioration of his health and
b) is suitable for rehabilitation and
c) has accumulated the necessary service time [a function of the age, as outlined in the law].”
Amount of the rehabilitation benefit
Section 4
“(1) The amount of the rehabilitation benefit shall be 120% of the disability pension (category III).”
Act no. CXCI of 2011 on the Benefits Granted to Persons with Reduced Work Capacity, in so far as relevant, provides as follows:
1. General regulations
Section 1
“(2) 3.2 Average monthly wage: 30 times the daily average of the income constituting the basis for health insurance contributions (hereinafter referred to as “income”) generated in the calendar year preceding the first day of the payment (hereinafter referred to as “reference period”); if the person concerned does not have income acquired during 180 days within the reference period, the average monthly wage shall be 30 times the average daily income generated during the 180 calendar days preceding the first day of payment; if the person concerned does not have income acquired during 180 days within the reference period or within the 180 calendar days preceding the first day of payment, nor does he have any income whatsoever, the average monthly salary shall be the minimum wage.”
2. Allowances for Persons with Reduced Work Capacity
Section 2
“(1) A person whose health status has been found to be of 60% or less in the rehabilitation authority’s complex reassessment (henceforth: persons with reduced work capacity) and who:
a) has been covered for a minimum 1,095 days by the social security under section 5 of [the Social Security Act] in the five years preceding the submission of the request, and
b) is not been engaged in any money-earning activities and
c) is not receiving any regular cash allowance
shall be eligible for allowances granted to persons with reduced work capacity.
(2) By derogation from subsection (1) (a), persons
a) who became covered by the social security within 180 days from the termination of their schooling and whose social security cover was not interrupted for any period exceeding 30 days before the submission of their request, or
b) who received on 31 December 2011 disability pension, accident disability pension, rehabilitation benefit or social allowance for persons with health impairment
shall be eligible for the benefits granted to persons with reduced work capacity irrespective of the duration of the period covered with social security.
(3) The 1,095-day-long insurance period shall include:
a) periods of sick pay, accident sick pay, pregnancy and confinement benefit, child care benefit and jobseeker benefit;
b) the period of disability pension, accident disability pension, rehabilitation benefit, social allowance for persons with health impairment;
c) the service time accumulated under an agreement concluded under section 34 of [the Social Security Act] with a view to accumulating service time and income that generate pension entitlement; provided that the agreement was concluded by 31 December 2011.”
Section 3
“(1) Subject to the rehabilitation authority’s rehabilitation proposal made in the framework of the complex reassessment, the allowance to be granted for a person with reduced work capacity shall be either:
a) rehabilitation allowance, or
b) disability allowance
(2) Within the framework of the complex reassessment procedure, the rehabilitation authority verifies whether
a) the person with reduced work capacity can be rehabilitated, more specifically
aa) his employability can be restored, or
ab) he is in constant need of employment rehabilitation;
b) the rehabilitation of the person with reduced work capacity is not recommended, more specifically
ba) that his employability can be restored through rehabilitation based on his state of health; however, due to other circumstances defined within the scope of the decree on the professional rules for complex rating, his rehabilitation is not recommended;
bc) he can only be employed if constantly assisted, or
bd) his health impairment is significant and he is either dependent or independent with assistance.”
Section 4
“Any disabled person that can be rehabilitated shall be eligible for rehabilitation allowance.”
Section 5
“(1) Any person with reduced work capacity whose rehabilitation is not recommended shall be eligible for disability allowance.
(2) A person with reduced work capacity shall also be eligible for disability allowance if
a) his employability can be restored through rehabilitation, or
b) he is in constant need of employment rehabilitation
and the period remaining for reaching the old age pension age threshold does not exceed 5 years when the application was submitted or on the date of review.”
4. Disability allowance
Section 12
“(1) The rate of the disability allowance shall be equivalent to
a) 40% of the average monthly wage or minimum 30% and maximum 45% of the minimum wage in the case defined in section 3 (2) point b) sub-point ba) and section 5 (2) point a);
b) 60% of the average monthly wage or minimum 45% and maximum 150% of the minimum wage in the case defined in section 3 (2) point b) sub-pint bb) and section 5 (2) point b);
c) 65% of the average monthly wage or minimum 50% and maximum 150% of the minimum wage in the case defined in section 3 (2) point b) subpoint bc);
d) 70% of the average monthly wage or minimum 55% and maximum 150% of the minimum wage in the case defined in section 3 (2) point b) sub-point bd). “
Following an amendment which entered into force as of 1 January 2014, sub-sections (5) and (6) have been added to section 34 of Act no. CXCI of 2011 concerning persons who previously received rehabilitation benefits, providing as follows:
“(5) If a person who received rehabilitation benefit until 31 December 2011 receives an allowance for persons with reduced work capacity as of 1 January 2014, the basis of the calculation of his allowance shall be 140% of the amount of the rehabilitation allowance he received in the preceding month.
(6) If a person who received rehabilitation benefit until 31 December 2011 receives an allowance for persons with reduced work capacity prior to 1 January 2014, the rehabilitation authority shall ex officio amend until 31 May 2014 the amount of the allowance in accordance with sub-section (5) with effect from 1 January 2014.”
Act no. III of 1952 on the Civil Procedure Code, in so far as relevant, provides, as follows:
Section 270
“(2) A petition for the review of a final judgment or a final ruling adopted on the merits of the case may be submitted to the Kúria – alleging a breach of law – by a party, the intervener, or by any person to whom any provision of the decision may be of concern, against the relevant part.”
COMPLAINT
The applicant complains about the significant decrease of the amount which he receives on account of his reduced work capacity. He invokes Article 1 of Protocol No. 1, Articles 6, 8, 13 and 14 of the Convention.
QUESTIONS TO THE PARTIES
1. Have domestic remedies been exhausted in the case in view of the fact that the applicant did not lodge a petition for review with the Kúria (compare, Béla Szabó v. Hungary, no. 37470/06, § 16, 9 December 2008)?
2. How has the amount of the applicant’s allowance evolved following the amendment of Act no. CXCI of 2011 on 1 January 2014?
3. Did the applicant have a “possession” in respect of the rehabilitation benefit, for the purposes of Article 1 of Protocol No. 1?
4. If so, has there been an interference with the applicant’s possessions within the meaning of Article 1 of Protocol No. 1? Did that interference impose an excessive individual burden on the applicant (see Immobiliare Saffi v. Italy, [GC], no. 22774/93, § 59, ECHR 1999-V)?
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