PAHVERK v. SWEDEN
Inadmissible
Matti Pellonpää
The applicant, Väinö Pahverk, is a Swedish national, who was born in 1932 and lives in Tumba. He was represented before the Court by Mr U. Jacobson, a lawyer practising in Stockholm. The respondent Government were represented by Ms E. Jagander, Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. Following the applicant’s laryngectomy operation in February 1989, at which his cancerous larynx was removed, the Social Insurance Office (försäkringskassan; hereinafter “the Office”) of the County of Stockholm granted him disability benefits under the Social Insurance Act (Lagen om allmän försäkring, 1962:381; hereinafter “the 1962 Act”) amounting to 65% of a basic amount geared to the price index (basbelopp). On 9 September 1992 the Office reviewed the applicant’s eligibility for disability benefits and decided that such payments should be discontinued as he had retired from work and no longer had needs or additional costs which entitled him to further benefits. The applicant requested the Office to review its decision under chapter 20, section 10 a of the 1962 Act. Attaching a list of alleged additional costs, he claimed that the decision of 9 September 1992 had been based on incomplete information. On 10 February 1993 the Office, having regard to the applicant’s submissions, changed its earlier decision and granted the applicant disability benefits amounting to 36% of the basic amount. In an attached document, the Office indicated which additional costs had been accepted and which ones had not. In regard to several items, it also stated summary reasons for its decision. The applicant appealed to the County Administrative Court (länsrätten) of the County of Stockholm, requesting that the benefits be fixed at a higher percentage of the basic amount. In substance, he maintained what he had submitted to the Office. By a judgment of 15 February 1994 the County Administrative Court rejected the appeal, subscribing to the reasons given by the Office. The court did not hold an oral hearing, nor did the applicant request one. On 11 March 1994 the applicant appealed to the Administrative Court of Appeal (kammarrätten) in Stockholm, essentially maintaining his previous submissions on additional costs and complaining that the Office and the County Administrative Court had failed to give reasons for their decisions. He completed his appeal on 17 October 1994, submitting further arguments in regard to his costs. At the end of that document, the following handwritten note had been added: “P.S. Requesting an oral hearing.” No reasons for the request were given. On 12 April 1995 the appellate court rejected the request for an oral hearing. After having restated section 9 of the Administrative Court Procedure Act (Förvaltningsprocesslagen, 1971:291; hereinafter ”the 1971 Act”; see further below), the court gave the following reasons: “Having regard to the subject-matter at issue and the information that has come to hand in the case, [the court] finds that an oral hearing is unnecessary and rejects the request to that effect. ... [The applicant] is invited to state the further circumstances he wishes to invoke and submit his final written observations in the case within two weeks after having been notified of this decision. The case can be determined notwithstanding a failure to submit such written observations.” The applicant reiterated his request for an oral hearing on 17 May 1995 stating that it was necessary in order to “clarify circumstances relating to the subject-matter of importance to the outcome of the case”. By a judgment of 10 January 1996 the Administrative Court of Appeal rejected the applicant’s appeal and his renewed request for an oral hearing. It stated that it shared the conclusion reached by the lower instances that the applicant’s needs and additional costs were not such that he was entitled to higher disability benefits than had already been granted. The applicant appealed to the Supreme Administrative Court (Regeringsrätten). He complained about the lack of oral hearings in the lower courts and asked the Supreme Administrative Court to hold one. In those respects, he claimed that the case had not been adequately investigated. By a letter of 13 February 1996 the court informed the applicant that it normally did not hold oral hearings. He was given the opportunity to submit further observations in writing. He made such submissions on 19 February 1996 repeating, in regard to the oral-hearing issue, that a hearing had been necessary in order clarify circumstances relating to the subject-matter of the case. On 18 December 1997 the Supreme Administrative Court refused the applicant leave to appeal. According to chapter 9, section 2 of the 1962 Act, a person who is ill or handicapped is entitled to disability benefits, provided that, before reaching the age of 65, he or she has become functionally impaired for a considerable time and to such a degree that he or she needs time-consuming assistance from another person in everyday life or continuing assistance in order to be gainfully employed or otherwise has considerable extra expenses. The total need of support and assistance determines the eligibility for disability benefits and the amount of compensation. It is thus necessary to look at the whole situation of the person in question and to add together the need for different types of assistance and the extra expenses. A decision by the Social Insurance Office under the 1962 Act may be appealed against to the County Administrative Court and from there on to the Administrative Court of Appeal and the Supreme Administrative Court. Appeals may be made against the Office’s ordinary decision or a decision upon review under chapter 20, section 10 a of the 1962 Act. The latter provision enables the Office to change a decision it has previously taken in order to rectify certain obvious defects of that decision, provided that it has not already been reviewed by a court. Thus, the Office must change its earlier decision if it contains a writing error, miscalculation or similar mistake or if it is incorrect due to it being based on obviously incorrect or incomplete information or an obviously incorrect application of the law or other similar reason. A decision is to be changed under this provision even if a request to that effect has not been made by the individual concerned. The procedure in the administrative courts is governed by the provisions of the 1971 Act. Section 9 provides: “The proceedings are in writing. An oral hearing may be held in regard to a certain issue, when there is reason to assume that that would be to the benefit of the proceedings or the speedy determination of the case. In the Administrative Court of Appeal and the County Administrative Court an oral hearing shall be held if requested by an individual party to the proceedings, unless it is unnecessary or there are particular reasons against holding a hearing.” The possibility for an individual party to obtain an oral hearing on request under those circumstances is not available in the proceedings before the Supreme Administrative Court. According to the preparatory documents to the 1971 Act, an oral hearing can be a valuable complement to the written proceedings and may benefit the examination of a case in two situations in particular: firstly, when it is necessary to hear a witness, an expert or a party or when it is difficult for a party to present the case in writing and, secondly, when different positions in the case need to be sorted out in order to eliminate unnecessary or pointless issues of dispute. In the latter case, the oral hearing takes on a preparatory character. It was stressed, however, that an oral hearing should not to be seen as an alternative to the written procedure but as a complement to it (see Government Bill 1971:30, p. 535). It was further stated, in respect of the third paragraph of section 9, that a party’s request for an oral hearing should be given great consideration. However, such a request should not have a decisive influence on the matter, as the question whether an oral hearing is necessary is to be determined primarily on the basis of the available information in the case. Still, other circumstances may be of relevance, for instance the importance for the party of the matter at stake or the possibility that an oral hearing could enhance the party’s understanding of a future decision in the case. Nevertheless, if the case is of a trivial character or the costs of an oral hearing would be disproportionate to the values at stake in the case, there could be reason not to hold an oral hearing (p. 537).