ECHR Article 1 para. 1 of Protocol No. 1
Peaceful enjoyment of possessions
violation
Facts – In 2001 the applicant was granted a disability pension, which was withdrawn in 2010 after her degree of disability was re-assessed at a lower level using a different methodology. She underwent further examinations in the following years and was eventually assessed at the qualifying level. However, new legislation which entered into force in 2012 introduced additional eligibility criteria related to the duration of the social security cover. The applicant did not fulfil that criteria. As a consequence, although her degree of disability would otherwise have entitled her to a disability allowance under the new system, her applications were refused.
Law – Article 1 of Protocol No. 1: The modifications in the degree of the applicant’s assessed disability had resulted solely from successive changes in the methodology used and not from any improvement in her health, which remained unchanged. In 2012 the disability pension system was replaced by an allowance system, which contained new eligibility criteria. The applicant was found ineligible for that allowance not because she did not have the requisite degree of disability but because she did not have a sufficient period of social cover as required by the new rules. That was a condition which was virtually impossible for her to fulfil since she was no longer in a position to accumulate the requisite number of days. However, during her employment, the applicant had contributed to the social security system as required by law. This had prompted a social solidarity-based obligation by the State to provide her with disability care should a contingency occur. The Court endorsed the Constitutional Court’s view that allowances acquired by compulsory contributions to the social security scheme could partly be seen as ‘purchased rights’. The disability pension/allowance was thus an assertable right to a welfare benefit recognised under the domestic law to which Article 1 of Protocol No. 1 was applicable. That recognised legitimate expectation and the proprietary interests generated by the legislation of a Contracting State in force at the time of becoming eligible could not be considered extinguished by the fact that, under a new methodology, the applicant’s disability had been significantly scored down without any material change in her condition. In this regard, the existence of the applicant’s continued, recognised legitimate expectation to receive disability care was demonstrated by the fact that she was subject to periodic reviews of her degree of disability. Irrespective of the loss of her disability pension in 2010, her expectation had thus been legitimate and continuous. As to the question whether the legitimate expectation to receive disability care entailed the right not to have the eligibility criteria changed, the Court noted that the ethical guidelines set out in the World Health Organisation’s International Classification of Functioning, Disability and Health should not be used to deny established rights or restrict legitimate entitlements to benefits for individuals. Moreover, respect for the rule of law required the States to secure, on the basis of societal solidarity, a certain income for those whose working capacity fell below the statutory level provided they had made sufficient contributions to the scheme.
As regards proportionality, although States had a certain margin of appreciation in regulating access to disability care, once such care had been granted they could not go as far as depriving the entitlement of its very essence. In this respect, the Court noted that the applicant had been totally divested of her disability care instead of being subject to a reasonable and proportionate reduction. This course of events amounted to a drastic and unforeseeable change in the conditions of her access to disability benefits. The applicant had thus had to bear an excessive and disproportionate individual burden in the circumstance.
Conclusion: violation (four votes to three).
Article 41: EUR 5,000 in respect of pecuniary and EUR 5,000 in respect of non-pecuniary damage.
53080/13 – Legal Summary, [2015] ECHR 303
Bailii
European Convention on Human Rights
Human Rights
Updated: 29 December 2021; Ref: scu.545027
