European Ombudsman
Decyzji w sprawie 1804/2009/(JMA)MHZ -
Uwzględnienie pracy w niepełnym wymiarze czasu w celu wypłaty podwójnego dodatku na dziecko
pozostające na utrzymaniu
Decyzja
Sprawa 1804/2009/(JMA)MHZ - Otwarta 23/09/2009 - Decyzja z 08/02/2011
Parlament Europejski odmówił przyznania skarżącej podwójnego dodatku na dziecko pozostające na utrzymaniu, ponieważ nie dostarczyła ona dokumentów poświadczających rzeczywiste wydatki związane z opieką nad niepełnosprawnym dzieckiem. Parlament odmówił uwzględnienia utraty dochodów będącej skutkiem decyzji skarżącej o pracy w niepełnym wymiarze czasu pracy jako wydatku finansowego wynikającego z
niepełnosprawności dziecka.
Rzecznik zaproponował Parlamentowi polubowne rozwiązanie sprawy: przyznanie skarżącej podwójnego dodatku na podstawie przedstawionych przez nią szacowanych kosztów usług opiekunów zatrudnianych. Uznał za oczywiste, że opieka rodzica nad niepełnosprawnym dzieckiem powinna mieć taką samą wartość finansową jak opieka innego opiekuna. Ponadto Rzecznik podkreślił, że w odpowiednich przepisach dotyczących podwójnego dodatku na dziecko pozostające na utrzymaniu nie dokonuje się rozróżnienia między przypadkami, gdy rodzice sami zajmują się opieką nad dziećmi, zdecydowawszy wcześniej o ograniczeniu liczby godzin pracy, a przypadkami, gdy rodzice, nadal pracując w pełnym wymiarze czasu pracy, zdecydowali się płacić innym osobom za opiekę nad dzieckiem.
Parlament odpowiedział, że w przyszłości, przed wydaniem decyzji, będzie uwzględniać decyzje pracowników o pracy w niepełnym wymiarze godzin w przypadku, gdy dany urzędnik nie jest w stanie udowodnić ponoszenia znacznych wydatków wynikających z
niepełnosprawności swojego dziecka. Parlament stwierdził również, że ponownie przeanalizuje dokumentację skarżącej.
Rzecznik zamknął sprawę jako rozwiązaną przez instytucję.
The background to the complaint
1. Article 67(3) of the Staff Regulations provides that officials and other staff who have a dependent child with a mental or physical handicap may be granted double the usual dependent child allowance. On 10 December 2007, the Heads of Administration of the Institutions reviewed their earlier Conclusion 177/87 of 3 December 1987, setting out the circumstances in which the dependent child allowance may be doubled ('the Revised Conclusion'). It established that, if the child’s physical and/or mental handicap is equal to or
greater than 50%, the dependent child allowance provided for in Article 2 of Annex VII to the Staff Regulations will be doubled automatically. If the child’s physical handicap is equal to or greater than 30%, or his or her mental handicap is equal to or greater than 20%, but in either case is less than 50%, the doubling of the allowance will be granted where the total
expenditure, namely, all the specific costs stemming from the nature of the handicap and borne by the applicant, is greater than the amount of the dependent child allowance.
2. The complainant, an official of the European Parliament, is a single mother of a disabled child, born in X, and of three other children, who are not disabled.
3. She decided to work part-time so that she could take care of her disabled child herself and provide him with the necessary therapy and guidance. This decision led to the complainant losing monthly income amounting to EUR 5 000 [1] .
4. On Z, the complainant submitted a request for the double dependent child allowance because of her son’s disability. She did so on the basis of Article 67(3) of the Staff
Regulations.
5. On W, Parliament's medical officer quantified the physical handicap of the complainant’s child as being less than 50%, and his mental handicap as being more than 20%, as defined by the " European physical and mental disability rating scale for medical purposes ".
6. The single dependent child allowance was EUR 333.19 per month. On V, on the basis of the Revised Conclusion, Parliament decided that the complainant was entitled to the double dependent child allowance on condition that she produced evidence of the specific financial expenditure resulting from her child’s disability, which she would incur if she herself did not provide the assistance her son required. The amount incurred would have to be equal to, or more than EUR 333.19.
7. In reply, the complainant argued that the loss of her monthly income resulting from her decision to work part-time in order to be able to take care of her child could be considered to constitute the required proof of financial expenditure resulting from her child's disability.
Parliament rejected her argument and decided not to grant her the double dependent child allowance.
8. On M, the complainant lodged an Article 90(2) complaint with Parliament, repeating her argument. On N, Parliament rejected her complaint as unfounded. It stated that " the
provisions in force are particularly clear and explicit ". The complainant was required to provide proof of specific financial expenditure resulting from her child's disability. Her loss of income could not be accepted as evidence of such expenditure. Parliament stated that it had no authority to grant the double dependent child allowance until such time as the complainant produced the required evidence. In this respect, it stated that " the award of the double dependent child allowance is subject to the condition that you reliably establish that all the specific expenditure caused by the nature of your son Alex's disability, that you would have to pay if you did not yourself provide the assistance that he needs, is more than EUR 333.19. " Moreover, Parliament referred to Article 1, Article 3.1, and Article 5.1 of the Provisional Guidelines for
the implementation of the budget under the heading of supplementary aid for the disabled concerning welfare appropriations for disabled persons. This aid provides, for example, for reimbursement of school fees, nursing care at home, transport and certain appliances.
Parliament stated that, since 2004, the complainant had not taken any steps to justify receiving the above supplementary aid for the disabled, which was intended to be " used … after national aid and aid under the Staff Regulations have been claimed … to finance
non-medical expenses arising from the disability… ". Thus, Parliament had not been provided with any evidence to show that the complainant was obliged to take on an exceptional financial burden in connection with her child’s disability.
9. On 9 July 2009, the complainant turned to the Ombudsman. On 29 September 2009, she submitted additional information in support of her complaint.
The subject matter of the inquiry
10. The complainant alleged that Parliament’s reasons for refusing her request, namely, that she had not submitted evidence of specific financial expenditure in excess of EUR 333.19 resulting from her child’s disability, ignored the fact that she decided to work part-time in order to cater for her child’s needs, and that this had led to a loss of income far in excess of the above amount (' first allegation ').
11. The complainant also alleged that Parliament had not established the public criteria which it applied to all cases and on the basis of which it determines what constitutes "heavy expenditure " (' second allegation ').
12. The complainant claimed that Parliament should reconsider its decision and grant her the requested allowance.
The inquiry
13. On 23 September 2009, the Ombudsman opened an inquiry.
14. On 16 February 2010, Parliament sent its opinion. The Ombudsman forwarded it to the complainant with an invitation to make observations, which she sent on 26 April 2010. On 12 October 2010, the Ombudsman sent to Parliament his proposal for a friendly solution, to which Parliament replied on 29 November 2010. The complainant commented on that reply on 9 January 2011.
The Ombudsman's analysis and conclusions
A. Alleged incorrect reasoning of the refusal to grant the double dependent child allowance in the
complainant's case ('first allegation'); alleged failure
to specify which public criteria need to be fulfilled for
the double dependent child allowance to be granted
('second allegation'); and related claim.
Arguments presented to the Ombudsman
15. As regards her first allegation, the complainant argued that the loss of her monthly income, resulting from her decision to work part-time in order to be able to take care of her disabled child, could be considered to constitute the required proof of heavy expenditure stemming from her child's disability.
16. As regards her second allegation, the complainant argued that the currently applicable public criteria, whereby the expenditure in question has to be regular and recurrent, are biased against people with disabilities, and that this is unacceptable.
17. In its opinion, Parliament argued that the public criteria are clearly defined in the Revised Conclusion and reproduced on the application form for the double dependent child
allowance. Moreover, the first footnote on the application form gives examples of supporting documents. The Revised Conclusion clearly refers to " specific costs stemming from the nature of the handicap and borne by the applicant ". Furthermore, the definition of "financial
expenditure" appeared in the application form for the double dependent child allowance, signed by the complainant, and referred to " the total of the specific costs related to the nature of the disability and which the applicant has to pay " (Parliament's emphasis). It follows that, to qualify, the costs leading to the grant of the double dependent child
allowance must (a) be specific, (b) stem from the handicap, and (c) be borne by the applicant.
In Parliament's view, there is no obvious connection whatsoever between the grant of the above allowance and the applicant's income.
18. Parliament also noted that the provisions on part-time work are specifically designed to allow flexibility for those officials who have to cope with various family situations, including cases of serious illness or disabilities of relatives.
19. Although the decision to work part-time represents a financial loss for the complainant, this cannot in itself be regarded as financial expenditure within the meaning of the Revised Conclusion, because this loss does not correspond to any " specific cost stemming from the nature of the handicap of her son ". The complainant agreed to accept the terms of the revised conclusion when she signed the application form for the double dependent child allowance.
In so doing, she undertook to provide evidence that the specific expenditure stemming from the nature of her son's disability was more than EUR 333.16 per month, and that she would have to pay these costs if she herself did not provide the assistance.
20. For that reason, Parliament asked the complainant to submit relevant supporting documents regarding the costs she incurred in connection with her son's disability. The complainant failed to do so, and her request had to be rejected.
21. In this context, Parliament reiterated that supplementary aid for the disabled can be granted to officials and other staff who have a child with a disability. This aid provides, for example, for reimbursement of school fees, nursing care at home, transport, and certain appliances (Article 1, Article 3.1 and Article 5.1 of the Provisional Guidelines for the implementation of the budget under the heading 'supplementary aid for the disabled'
concerning welfare appropriations for disabled persons.) However, since T, the complainant had not taken any steps to apply for this supplementary aid.
22. Parliament concluded that its aim in asking " only once per year " for proof of " regular "
and " recurrent " expenditure over the year is " to ease what would be a significant burden on the applicant to provide such documents for each month. "
23. In her observations on Parliament's opinion, the complainant pointed out that members of staff are not informed that the expenditure qualifying for the double dependent child allowance has to be "regular". In her view, Parliament tries to make disabled children and their families adapt to its bureaucratic needs rather than trying to adapt the modest help available under the Staff Regulations to the needs of disabled children.
24. The complainant also put forward that her child has a specific syndrome, a personality disorder which, in her son's case, manifests itself as a communication disability. He needs the complainant's help in order to overcome his difficulties. If the complainant had to hire a person to help her son, this person would have to be fluent in two languages, available morning, noon, and night, be able to read and understand her son's university text books, have psychological knowledge, and win his trust. In the complainant's view, such a person would be very difficult to find, and very expensive to employ. The complainant acts as her son's personal tutor, reading parts of his text books, and paraphrasing paragraphs he may not understand because they are too abstract. The complainant also acts as his therapist when he has difficulties understanding and interpreting other people's statements or behaviour. When he gets depressed she tries to help him and, if the depression becomes too serious, a professional psychologist takes over.
25. The complainant took the view that, if her above activity were to give rise to costs, they would indeed be " specific. " Moreover, such costs would be " originated by the handicap ". She stated that it is only her handicapped child who needs help, and not her other children.
Finally, she personally bears the loss of income, which means that the related costs are "
borne by applicant ".
26. The complainant took the view that there is nothing to prevent Parliament from interpreting the relevant provisions in such a way as to consider loss of income as heavy expenditure , and that this is a matter of staff policy.
27. The complainant also recalled that, in many Member States, carers (that is, persons who care for a disabled or sick family member), are compensated by law in various ways (the complainant attached a copy of the relevant national law). The Staff Regulations are silent on this topic. She considered that Parliament could use the double dependent child allowance as an indirect instrument to provide parents with modest compensation.
28. She also referred to a conference, organised by Parliament, which took place on 15 October 2009, concerning carers. DG Personnel made a presentation at that conference, during which it suggested that " …part-time work should be considered as a heavy expenditure for the purposes of the payment of the double dependent child allowance. " She finally referred
to an interview on "EP Newshound", during which the Head of Pensions Unit stated that if the rules leave some room for manoeuvre, his unit ensures that " they are interpreted in as flexible manner as possible for the benefit of staff and at the express request of the Secretary General ". She considered that the same approach should be taken by Parliament's Unit of Individual Entitlements.
The Ombudsman's preliminary assessment leading to a friendly solution proposal
29. Article 24 of the Charter of Fundamental Rights of the European Union provides that "[c]
hildren shall have the right to such protection and care as is necessary for their well-being…. In all actions related to children, whether taken by public authorities or private institutions, the child's best interests must be a primary consideration. "
30. Article 26 of the Charter of Fundamental Rights of the European Union provides that "[t]
he Union recognises and respects the right of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community. "
31. Against the above legal background, the Ombudsman recalled that Article 67(3) of the Staff Regulations provides that "[t] he dependent child allowance may be doubled by special reasoned decision of the appointing authority based on medical documents establishing that the child concerned is suffering from a mental or physical handicap which involves the official in heavy expenditure. " The ratio legis of this article is apparently to provide financial aid to European Union officials and other staff who are responsible for such children. This provision does not distinguish between cases where they care for the children themselves after deciding to reduce their working hours, and cases where, in order to remain in full-time work, they decide to pay somebody else for doing so.
32. In 1987, the Heads of Administration found it useful to try to clarify how Article 67(3) should be applied, by issuing the first Conclusion and then, in 2007, the Revised Conclusion.
The Revised Conclusion provided that heavy expenditure is established by the appointing authority on the basis of the opinion of the institution's Medical Officer, who assesses the degree of handicap by reference to the European Assessment Schedule for Physical and Mental Impairments. If it is established that the child's physical and/or mental handicap is equal to or greater than 50%, the double dependent child allowance is granted automatically.
If it is established that a child's physical handicap is equal to or greater than 30%, or that his or her mental handicap is equal to or greater than 20%, but in either case is less than 50%, the double dependent child allowance will be granted where the total expenditure, namely, "
all specific costs stemming from the nature of the handicap and borne by the applicant - is greater than the amount of the child allowance. "
33. In light of the above, the Ombudsman considered that the public criteria, on the basis of which the institution may determine what constitutes "heavy expenditure", had already been established. He thus did not find an instance of maladministration as regards the
complainant’s second allegation.
34. As regards the complainant’s first allegation, the Ombudsman took the view that, in cases where the provision of the Revised Conclusion which is emphasised in paragraph 32 above is relevant, the institution should interpret and apply that provision in such a way as to guarantee its " effet utile ". This means that the interpretation should not deprive the
provision of the effect it was originally designed to achieve, that is, to provide parents with financial assistance so that they can ensure the care of their handicapped child.
35. In the present case, it was established that the complainant’s disabled child has a mental handicap of more than 20%, and that he therefore needs specific care. The Ombudsman did not consider that Parliament intended to contest this when it referred to the fact that the complainant had not taken any steps to apply for Parliament's supplementary aid for the disabled, which covers, for example, " care by a home nurse, transport and certain appliances ".
Moreover, it was not disputed that the complainant, and nobody else, takes care of her child.
36. In addition, the Ombudsman emphasised that, if a parent cares for a disabled child, the same pecuniary value should be attached to that activity as if it were being provided by another carer. It is common knowledge that, in EU country,in question it would cost, at the very least, EUR 333.16 per month to employ a carer for a disabled person. This amount is equal to the "single" dependent child allowance. The expenditure for a psychotherapist working each day with a disabled person, including weekends, if only for one or two hours a day, would certainly exceed that amount.
37. The Ombudsman understood that Parliament's administration felt obliged by the Revised Conclusion of the Heads of Administration to ask the complainant for some kind of proof in this respect. However, in light of the obvious fact that the pecuniary value of the complainant's care for her disabled child equals, or represents the equivalent of EUR 333.16 per month, the Ombudsman considered that cost estimates for external carers, which the complainant would doubtlessly be able to provide, should be considered to constitute such proof. Once this is established, the complainant would not have to re-submit any other proof in the future, but would simply have to declare that she wished to renew her request to work part-time in order to assist her handicapped son. In this respect, the Ombudsman notes Parliament's statement in its opinion that the part-time work scheme is designed to allow flexibility for officials " who must take care of handicapped members of their families ". The Ombudsman also notes that, in its reply to the complainant's complaint pursuant to Article 90(2) of the Staff Regulations, Parliament stated that (emphasis added) " the award of the double dependent child allowance is subject to the condition that you reliably establish that all the specific expenditure caused by the nature of your son Alex's disability, that you would have to pay if you did not yourself provide the assistance that he needs, is more than EUR 333.19. " The complainant did not provide Parliament with any up-to-date estimates of the costs of a potential tutor or therapist she would need to pay if she did not herself provide the assistance to her son.
38. The above conclusion is not affected by the fact that, on Z, the complainant signed Parliament's application form entitled " Request for the double dependent child allowance ",
which contains the following wording: " if the physical handicap of my child is equal to or greater than 30% or that his or her mental handicap is equal to or greater than 20% but in either case is less than 50%, I commit myself to provide the proof that the total of the specific costs related to the nature of the disability and which I have to pay is greater than the amount of the [single] child allowance ". (Emphasis added)
39. The complainant had no other choice but to use the form drafted by Parliament in order to apply for the double dependent child allowance. The declaration does not oblige officials to employ and actually pay external carers. If that were Parliament's interpretation, it would contradict the aims of the relevant provision of the Staff Regulations, and the spirit of the Revised Decision of the Heads of Administration.
40. Moreover, the footnote in the application form referred to in paragraph 38 gives only a few examples of supporting documents, namely, any invoices or various receipts from a period of over at least a month that have not been reimbursed by the Institution's Joint Sickness Insurance Scheme (JSIS) or budgetary line 1630.01 (Social welfare: supplementary aid for the disabled - expenditure not refunded by the JSIS and other specific expenditure).
The list of examples in the said footnote does not appear to be exhaustive, since it includes "
factures ou reçus divers " ("invoices or various receipts"). These are merely illustrative examples of supporting documents, and the wording used in the form does not exclude cost estimates from being considered as supporting documents.
41. The Ombudsman considered that, when the complainant signed the application form, thereby declaring that, when not working in Parliament, she is the sole carer of her disabled child (as previously stated, an activity which necessarily has a pecuniary value), she would be entitled to believe that her declaration could be considered to be the equivalent of receipts relating to external care for her child. In the Ombudsman's view, Parliament's refusal to accept this would, in practice, amount to discouraging parents from caring for their
handicapped children themselves, and encourage them to pay for the assistance of external careers instead. The Ombudsman saw no reason for the European Parliament to adopt such a policy; nor was he aware that Parliament had explicitly done so.
42. In light of the above findings, the Ombudsman considered that it would be good administration for Parliament to grant the complainant the double dependent child allowance on the basis of (a) the estimated costs of a potential external carer, and (b) her declaration that she is the sole carer for her disabled child when she is not working in Parliament.
43. In accordance with Article 3(6) of the Statute of the European Ombudsman, the Ombudsman decided to make a proposal for a friendly solution. In so doing, he wished to pay tribute to all those parents who decided to abstain from a full-time professional career in order to take care of their disabled children themselves. The proposal read as follows:
Taking into account the Ombudsman's findings , Parliament could consider granting the complainant the double dependent child allowance on the basis of the estimated costs of external carers, to be submitted by the complainant along with her declaration that she
alone takes care of her handicapped child when she is not working in Parliament. These costs estimates could be an estimate from an advertisement in the local press on the cost of services offered by a private tutor or therapist or a certificate from a potential tutor or therapist on his/her costs for private lessons. Such cost estimates have to be submitted only once, but the complainant would declare with each request for the renewal of her part-time work contract that her request is made so that she can assist her handicapped son.
The arguments presented to the Ombudsman after his friendly solution proposal
44. In its reply, Parliament informed the Ombudsman that, " in principle " it agreed with his proposal.
45. It also stated that, in order to establish an appropriate administrative procedure,
applicable not only to the present case but also to future cases concerning similar problems, it should set out the principles which shall govern all such cases. It reiterated its earlier view that the decision of a parent of a handicapped child to work part time does not " in itself "
constitute sufficient proof of heavy expenditure. However, in future, Parliament's
administration will, in line with the Ombudsman's proposal, take its staff's decisions to work part-time into account when deciding on cases where the official concerned is finding it difficult to prove the existence of heavy expenditure resulting from the handicap of his/her child. Parliament is thus ready to review the complainant's file as well.
46. As regards the complainant's particular case, Parliament noted, however, that the complainant had been working part time since Y, that is to say four years before the birth of her child concerned by the allowance in question. Moreover, since 1 September 2009, this child has pursued his studies at aUniversity in another EU country, which is about a certain number of kilometres from the complainant's place of residence. These concrete elements led Parliament's services to conclude, in a first step, that the complainant's decision to work part-time did not amount to sufficient proof of heavy expenditure.
47. In light of the above, in order to make it possible for Parliament to review her file, the complainant would need to provide medical documentation which would allow Parliament's administration to carry out a proper assessment of the needs of her child. Such
documentation could consist of a medical opinion outlining the concrete needs of the complainant's son, and linking these needs to his handicap. Upon receipt of such medical documentation, Parliament's competent services will submit the file to its medical advisor and thereafter adopt a new decision.
48. Finally, Parliament recalled that the complainant could still apply for supplementary aid for her child.
49. In her observations on Parliament's reply, the complainant welcomed Parliament's willingness to reconsider its initial decision concerning her application for the double child allowance and, in general, to accept as heavy expenditure a parent's loss of income due to
his/her choice to care for and support his/her disabled child.
50. As regards her particular situation, the complainant stated that her child does not need the specific services which may be covered by the budget line " supplementary aid ".
Moreover, this aid cannot be compared to the double child allowance, which serves different purposes. She also confirmed the fact, outlined by Parliament in its answer to the friendly solution proposal that she chose to work part-time when her first child was born, that is, four years before her handicapped child was born. She emphasised that taking care of and supporting a disabled child is an extremely time- and energy consuming activity for a parent, regardless of the age of that child. Her disabled child is disadvantaged by his social and behavioural disability and she needs to give him " massive " support. He chose to study in another EU country rather than studying in his mother tongue in his country because he felt that it was important for him to be within a reasonable driving distance of his mother, his personal tutor.
51. Finally, the complainant pointed out that Parliament's Medical Service already possesses a medical certificate dated 1 June 2008, which was delivered by the psychiatrist of her
handicapped child. In the complainant's recent meeting with Parliament's medical officer, the latter confirmed that the above certificate contains " the information necessary for him to assess the needs of [ her handicapped child ]".
The Ombudsman's assessment after his friendly solution proposal
50. The Ombudsman applauds Parliament's commitment to take its staff's decisions to work part-time into account when deciding on requests for the double child allowance, where the official concerned has difficulty proving the existence of heavy expenditure resulting from the handicap of his/her child. The Ombudsman is convinced that, in the framework of such a new administrative procedure, unnecessary bureaucratic requirements can be avoided and, therefore, a human approach can be taken towards families with a handicapped child. He also thanks Parliament for having agreed to review the complainant's file.
B. Conclusions
On the basis of his inquiry into this complaint, the Ombudsman closes it with the following conclusion:
The case has been settled by Parliament.
The complainant and Parliament will be informed of this decision.
P. Nikiforos Diamandouros
Done in Strasbourg on 8 February 2011
[1] The Ombudsman established these facts on the basis of the original complaint and used them as a starting point for his proposal for a friendly solution. It was not until the
complainant submitted her observations that the Ombudsman discovered that she had already started working part-time in Y, following the birth of her first child.
