STEEN v. SWEDEN
Inadmissible
David Thór Björgvinsson
The applicant, Ms Marie Steén, is a Swedish national who was born in 1957 and lives in Stockholm. She was represented before the Court by Mr U. Jacobson, a lawyer practising in Stockholm. The Swedish Government (“the Government”) were represented by their Agent, Mr B. Sjöberg of the Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant suffers from Crohn’s disease (a disease marked by chronic inflammation of the colon). On 23 February 1983 the Social Insurance Office (Försäkringskassan) in Jönköping granted her disability benefits (handikappersättning) at the level of 32% of the basic amount geared to the price index (basbeloppet) as from August 1982. On 18 November 1988 it decided to increase the benefits to the level of 50% as from November 1987 because of her extra costs incurred as a result of the disease. In September 1998 the applicant applied for an increase of the disability benefits, as she claimed that her costs had increased further, inter alia, she had to follow a special diet, was dependent on medication and had extra expenses to be able to work. On 20 April 1999 the Social Insurance Office granted the applicant an increase, to the level of 69% of the basic amount, as from October 1998. It noted that she had substantial extra costs due to her disease but that she did not have any need for assistance in her daily life. The applicant appealed to the County Administrative Court (länsrätten) of the County of Jönköping, demanding that the increase be paid retroactively as from August 1996. In a judgment of 22 October 1999, the court granted the appeal. In the meantime, on 16 October 1999, the applicant requested the Social Insurance Office, under Chapter 20 section 10 (a) of the Social Insurance Act (Lagen om allmän försäkring, 1962:381 – hereinafter “the 1962 Act”), to change its decision of 18 November 1988, and to grant her disability benefits at the level of 65% of the basic amount retroactively from November 1987. She claimed that the original decision had been incorrect as all her extra costs had not been taken into account at the time. On 10 December 1999 an official at the Social Insurance Office made a re-assessment of the decision of 18 November 1988, in accordance with the relevant provision of the 1962 Act, and decided to reject the request on the grounds that that decision had not been made on obviously incorrect or incomplete material. In this respect, the official noted that the Office had accepted all the extra costs, as specified by the applicant at the time, except certain reductions for food expenses. The applicant appealed to the County Administrative Court, complaining that the Social Insurance Office’s decision should have been made by its board and not by a single official, for which reason the case should be returned to the Office for reconsideration by the board. In the alternative, she maintained her claim that she should granted disability benefits at the level of 65% of the basic amount retroactively from November 1987. The Social Insurance Office submitted that its decision had been duly made, as a decision for re-assessment under Chapter 20 section 10 (a) of the 1962 Act could be made by a single official. It referred to both a judgment by the Supreme Social Insurance Court (ref. FÖD 1991:26) and a general opinion (allmänna råd 1998:14) issued by the National Social Insurance Board (Riksförsäkringsverket). Following further submissions from the parties in which the applicant continued to question the legality of the Social Insurance Office’s decision and whether it had at all tried the case on the merits, the County Administrative Court, on 24 March 2000, sent her a letter (underrättelse), inter alia, informing her that it appeared from the Office’s decision that it had tried her request on the merits according to Chapter 20 section 10 (a) of the 1962 Act and that the decision had been made by an official at the Office who was competent to make such a decision. The court further gave the applicant four weeks in which to finalise her submissions. In a letter of 30 March 2000, the applicant maintained her claims and added that she requested that an oral hearing be held in the case. She wished for the court to take appropriate measures to clarify how the Social Insurance Office had dealt with her case and, once she had received that information, she would consider whether she wanted to hear someone from the National Social Insurance Board before the court. The parties made further submissions, in which the applicant maintained her request for an oral hearing and added that she wished for the official who had made the decision at the Social Insurance Office and a named person at the National Social Insurance Board to be heard in order to establish whether the Office’s decision had been duly taken. In response to the applicant’s requests, the County Administrative Court, in September 2000, decided to ask the National Social Insurance Board to submit its opinion on the matter based on the applicant’s submissions. The Board delivered its opinion to the court in November 2000, and a supplementary opinion in February 2001. In these opinions, the Board agreed with the Social Insurance Office, with reference to its general opinions and to case-law, that the decision had been taken according to law. The applicant still maintained her request for an oral hearing in order to clarify whether the Social Insurance Office’s decision had been taken in due order. On 19 February 2001 the County Administrative Court invited the applicant to make her concluding submissions in the case and, on 22 February 2001, the applicant submitted that she maintained her claims and request for an oral hearing. On 22 August 2001 the County Administrative Court rejected the appeal as well as the applicant’ On 26 September 2001 the applicant appealed to the Administrative Court of Appeal (kammarrätten) in Jönköping, relying on the same grounds as before the lower court, and developing her reasons further. Moreover, she complained that the County Administrative Court had not held an oral hearing in the case which was in breach of her rights under Article 6 of the Convention. In a further submission, received by the court on 15 November 2002, the applicant demanded that the Administrative Court of Appeal hold a hearing to clarify the contentious issues. The official at the Social Insurance Office should be heard about whether the case had been examined in substance and the Director-General of the National Social Insurance Board should be questioned about the Board’s position on decision-making competences, in general, at the Social Insurance Office. The parties made further submissions to the Administrative Court of Appeal and, on 19 February 2003, it rejected the applicant’s request for an oral hearing as it considered that it was not necessary in order to decide whether or not to grant leave to appeal. The applicant was given three weeks to submit supplementary written pleadings, which she did. On 14 April 2003 the Administrative Court of Appeal refused leave to appeal as it found no reasons to change the lower court’s judgment. The applicant appealed against the decision to the Supreme Administrative Court (Regeringsrätten), maintaining her claims and adding that the lower courts had violated Article 6 of the Convention by not granting her an oral hearing. She also requested that the Supreme Administrative Court hold an oral hearing if it granted her leave to appeal. On 28 February 2005, the Supreme Administrative Court refused leave to appeal. According to Chapter 9, section 2, of the 1962 Act (as in force until 1 January 2001, when the 1998 Act on Disability Benefits and Care Allowance - lagen (1998:703) om handikappersättning och vårdbidrag – entered into force), a person who was ill or handicapped was entitled to disability benefits, provided that, before reaching the age of 65, he or she had been functionally impaired for a considerable time and to such a degree that he or she needed time-consuming assistance from another person in everyday life or continuing assistance in order to be gainfully employed or otherwise had considerable extra expenses. The total need for support and assistance determined the eligibility for disability benefits and the amount of compensation. It was 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. According to the guidelines of the National Social Insurance Board the total cost of all extra needs due to the disability should attain at least 28.5% of a basic amount geared to the price index in order to make the individual eligible for an allowance. In 1983, when the applicant was first granted the benefit, the basic amount was SEK 19,400 and, in 1999 when she was granted increased benefits, the basic amount was SEK 36,400. According to Chapter 9, section 3, of the 1962 Act, as in force before 1 January 2001, such benefits were granted on a yearly basis at a level of 69%, 53% or 36% of the basic amount, depending on the extent to which the insured person was in need of assistance and the amount of extra expenses caused by the disability. Before 1 January 1991 the levels were 65%, 50% or 34% of the basic amount. 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 to the Supreme Administrative Court. Appeals may be made against the Office’s ordinary decisions or a decision upon review under Chapter 20, section 10 (a), of the 1962 Act. The latter provision enables the Social Insurance 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. The question of changing a decision under section 10 (a) should, in principle, be raised within two years from the day the decision was taken. However, it may nevertheless be changed if it appears only after the elapse of this two-year period that it was based on obviously incorrect or incomplete material or if there are other exceptional reasons. 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 Administrative Court Procedure Act (Förvaltningsprocesslagen, 1971:291 – hereinafter “the 1971 Act”). Section 9 provides: “The proceedings shall be in writing. An oral hearing may be held in regard to a certain issue, when there is reason to assume that that would assist in the proceedings or be conductive to 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 and if it is not unnecessary and there are no 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. From the case-law of the national courts, it appears that the grounds stated in the third paragraph of section 9 for refusing an oral hearing have been interpreted as being alternative rather than cumulative (see Regeringsrättens Årsbok 1997 ref 62). According to the preparatory work to the 1971 Act, an oral hearing could be a valuable complement to the written proceedings and could benefit the examination of a case, in particular in two situations: firstly, when it was necessary to hear a witness, an expert or a party or when it was difficult for a party to present the case in writing and, secondly, when different positions in the case needed 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 supplement 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 close consideration. However, such a request should not have a decisive influence on the matter, as the question whether an oral hearing was necessary was to be determined primarily on the basis of the available information in the case. However, other circumstances could 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 was of a trivial character or the costs of an oral hearing would be disproportionate to the value of what was at stake in the case, there could be reason not to hold an oral hearing (p. 537). In recent years, it appears from the case law of the Supreme Administrative Court that it has set aside a number of decisions on appeal and granted leave to appeal in the administrative courts of appeal because an oral hearing has been denied in the lower courts (see, inter alia, Regeringsrättens Årsbok 2002 ref 23, Regeringsrättens Årsbok 2003 note 68, and Regeringsrättens Årsbok 2004 note 65).