Information Note on the Court’s case-law No. 122
August-September 2009
Moskal v. Poland - 10373/05
Judgment 15.9.2009 [Section IV]
Article 1 of Protocol No. 1
Article 1 para. 1 of Protocol No. 1
Deprivation of property
Possessions
Revocation of a welfare benefit which had been granted by mistake several months before and constituted the applicant’s sole source of income: violation
Facts – In August 2001 the applicant applied to the Social Security Board for an early retirement pension in order to care for her son who suffered from asthma, allergies and recurring infections and needed constant care. Her request was granted, but the Board suspended payment of the pension because the applicant was still working on the date of its decision. The applicant resigned from her full-time job, where she had been employed for the past thirty years. Subsequently, she was issued with a pensioner’s identity card marked “valid indefinitely” and for the following ten months, starting from September 2001, she received her early retirement pension without interruption. In June 2002 the Social Security Board quashed the 2001 decision and refused to award the applicant the pension, on the grounds that she did not qualify for that type of welfare benefit, as her child’s health condition was not severe enough to require his mother’s permanent care. The payment of the pension was discontinued from 1 July 2002. The applicant was not required to return the payments she had already received. She unsuccessfully challenged this decision in the courts. Between 1 July 2002 and 25 October 2005 she did not receive any social benefits and claimed she had no other income. Following separate social-security proceedings, on 25 October 2005 the District Labour Office granted her another benefit amounting to approximately 50% of her discontinued early-retirement pension, retroactive effect from 25 October 2002, but without interest.
Law – Article 1 of Protocol No. 1: The applicant had applied for the early-retirement pension in good faith and in compliance with the applicable law. As soon as the authorities confirmed her entitlement to the benefit, she was justified in considering that decision accurate and in organising her life accordingly. She could not have realised that her pension right had been granted by mistake. The 2001 decision had provided the applicant with an enforceable claim to receive the pension in a particular amount. She could be regarded as having a substantive interest protected by Article 1 of Protocol No. 1. The decision in 2002, which had deprived her of the right to receive the pension, had amounted to an interference with her possessions. The interference had been lawful and had pursued the legitimate aim of correcting the authorities’ mistake and ensuring that the public purse was not called upon to subsidise without limitation in time undeserving beneficiaries of the social-welfare system. As regards proportionality, the 2001 decision had been left in force for ten months and had undoubtedly affected the applicant and her family. However, when the error was discovered the decision to discontinue the payment of the benefit was issued relatively quickly and with immediate effect. The fact that the applicant had not been required to return the pension which had been paid in error did not mitigate sufficiently the consequences of that decision. Her right to the pension was determined by the courts only two years later and during the interval she was not in receipt of any welfare benefit. In the context of property rights, particular importance had to be attached to the principle of good governance. It was desirable that public authorities act with the utmost scrupulousness, in particular when dealing with matters of vital importance to individuals, such as welfare benefits. In the instant case, having discovered their mistake the authorities had failed in their duty to act in good time and in an appropriate and consistent manner. As a general principle, public authorities should not be prevented from correcting their mistakes, even those resulting from their own negligence. Holding otherwise would be contrary to the doctrine of unjust enrichment. It would also be unfair to other individuals contributing to the social-security fund, in particular those who had been denied a benefit because they had failed to meet the statutory requirements. Lastly, it would amount to sanctioning an inappropriate allocation of scarce public resources, which in itself would be contrary to the public interest. However, if a mistake was caused by the authorities themselves, without any fault by a third party, a different proportionality approach had to be taken in determining whether the burden borne by the recipient of the benefit was excessive. As a result of the impugned measure, the applicant had been faced, practically from one day to the next, with the total loss of her early-retirement pension, which constituted her sole source of income. Moreover, there was a risk that she would have considerable difficulty in securing new employment. It was not until three years later that she had been able to obtain a new benefit (at 50% less than the previous rate). Therefore, a fair balance had not been struck between the demands of the general interest of the public and the requirements of the protection of the individual’s fundamental rights and that the burden placed on the applicant had been excessive.
Conclusion: violation (four votes to three).
Article 41: EUR 15,000 in respect of pecuniary and non-pecuniary damage.
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This summary by the Registry does not bind the Court.
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