CASE OF LUNDEVALL v. SWEDEN
Violation of Art. 6-1;Pecuniary damage - claim dismissed;Costs and expenses partial award
Nicolas Bratza
8. On 6 October 1986 the applicant, who was born in 1919, applied for disability benefits under the Social Insurance Act (Lagen om allmän försäkring, 1962:381; hereinafter “the 1962 Act”). He claimed that he was in need of assistance and had additional costs due to a speech impediment caused by a laryngectomy operation in 1979. 9. By a decision of 24 April 1987 the Social Insurance Office (försäkringskassan; hereinafter “the Office”) of the County of Västmanland rejected the application, finding that the applicant’s needs or costs were not such as to make him eligible for disability benefits. 10. On 27 December 1990 the applicant requested the Office to review its decision under chapter 20, section 10 a of the 1962 Act. He claimed that he had failed to fully state his need of assistance and his additional costs in the original application. On 27 April 1991 he asked the Office, alternatively, to consider his request as a new application and to grant him benefits as from November 1988. 11. On 12 July 1991 the Office found that there was no basis for a review of its earlier decision. Further, in regard to the applicant’s alternative claim, the Office noted that the applicant had reached the age of 65 in 1984 and that information relating to the time that followed could not be taken into account under the relevant rules. Consequently, the applicant’s alternative claim was rejected. 12. The applicant appealed to the County Administrative Court (länsrätten) of the County of Västmanland. On 13 November 1992 the court gave judgment in his favour. It considered that the Office’s first decision had been based on insufficient information and that the Office should therefore have reviewed that decision at the applicant’s request. It noted that, according to the two medical certificates in the case, the applicant had considerable additional costs due to his handicap. Consequently, he was entitled to disability benefits as long as his need of assistance and his additional costs, taken together, attained the level required under the 1962 Act. Accepting the information submitted by the applicant in this regard, the court found that that level had been attained and granted him a disability allowance as from July 1986. The court did not hold an oral hearing nor, apparently, did the applicant request one. 13. The National Social Insurance Board (Riksförsäkringsverket; hereinafter “the Board”) appealed against the County Administrative Court’s judgment to the Administrative Court of Appeal (kammarrätten) in Stockholm, requesting that the Office’s decision of 12 July 1991 be confirmed. The Board claimed that the information in the case showed that, before the age of 65, the applicant had not suffered a functional impairment to such an extent that his need of assistance and extra expenses on account thereof had made him eligible for a disability allowance. Thus, the Office’s first decision could not be considered to have been incorrect due to it being based on incorrect or incomplete material. Consequently, there were no grounds for a review under the 1962 Act. The Board further requested the appellate court to stay the enforcement of the appealed judgment. The latter request was granted by a decision of 30 December 1992. 14. The applicant made submissions in response to the Board’s appeal. On 25 February 1993 he requested the Administrative Court of Appeal to hold an oral hearing in the case during which the person in charge of the case at the Office should give evidence relating to the meaning of its decision and the information on which it had been based. The applicant also asked the court to obtain the opinion of a medical expert. 15. On 12 November 1993 the Administrative Court of Appeal rejected both requests. In regard to the request for an oral hearing, the court, after having restated section 9 of the Administrative Court Procedure Act (Förvaltningsprocesslagen, 1971:291; hereinafter “the 1971 Act”; see further paragraph 23 below), 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.” 16. The applicant and the Board made further submissions. The applicant maintained that the Board had failed to adequately explain the reasons for its appeal and posed several questions to the Board. He requested that the court order the Board to clarify its position in the case. The court did not do so, however. The applicant’s submissions were, however, forwarded to the Board which replied that it maintained its position in the case. On account of the court’s refusal to order the Board to clarify its position and to hold a hearing, the applicant called into question the impartiality of the proceedings. By letters of 16 September 1994 and 10 January 1995 he reiterated his request for an oral hearing, stating that a hearing would give him the opportunity to ask questions to the Board and to present judgments in similar cases in support of his application for disability benefits. Furthermore, in assessing his condition, the court would benefit from having met him in person. 17. On 1 November 1995 the Administrative Court of Appeal rejected the applicant’s renewed requests for an oral hearing and gave judgment in favour of the Board. Thus, by 3 votes to 2, it quashed the County Administrative Court’s judgment and confirmed the Office’s decision of 12 July 1991. Without giving any further reasons, it considered that there had been no basis for a review of the Office’s first decision. The dissenting judges considered that the applicant was entitled to the disability allowance granted to him by the County Administrative Court and that, for this reason, there were exceptional reasons to change the Office’s decision. 18. The applicant appealed to the Supreme Administrative Court (Regeringsrätten). He requested that the case be referred back to the Administrative Court of Appeal for re-examination or, alternatively, that the Supreme Administrative Court confirm the County Administrative Court’s judgment. He complained about the lack of an oral hearing in the Administrative Court of Appeal and also requested the Supreme Administrative Court to hold an oral hearing. On 24 February 1997 the Supreme Administrative Court refused the applicant leave to appeal. 19. On 9 October 1996 the applicant made a renewed request for a disability allowance. By a decision of 12 December 1996 the Office found that he had special needs and costs due to his handicap which made him eligible for disability benefits under the 1962 Act. As an allowance could be given retroactively only for the two years preceding the application, the applicant was granted an allowance as from October 1994. 20. 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. According to the Board’s guidelines, the total cost of all extra needs due to the disability should come to at least 28.5% of a basic amount geared to the price index (basbelopp) in order to make the individual eligible for an allowance. In 1987 and 1996, when the applicant made his applications to the Office, this corresponded to 6,868 and 10,317 Swedish kronor (SEK), respectively. 21. 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. 22. 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. 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. 23. 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. 24. 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). 25. 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).