The legal norm issued by the Cabinet that defines the criteria for providing an opinion required for receiving compensation for transport costs is incompatible with the Satversme
On 12 December 2018, the Constitutional Court passed the judgement in Case No. 2018-06-0103 “On Compliance of Section 12 (1) of the Law “On State Social Allowances” and Annex 9 to the Cabinet Regulation of 23 December 2014 Nr. 805 “Regulations Regarding the Criteria, Time Periods and Procedures Determining Predictable Disability, Disability, and the Loss of Ability to Work” with the First Sentence of Article 91 and Article 109 of the Satversme of the Republic of Latvia”.
The Contested Norms
Section 12 (1) of the law “On State Social Allowances”:
“An allowance for the compensation of transport expenses for disabled persons who have difficulties in movement shall be granted to a person to whom or to whose child a disablement has been specified in accordance with the procedures specified by law or other regulatory enactments and to whom an opinion has been issued regarding the determination of medical indications for the purchase of a specially fitted car and for the receipt of an allowance.”
Annex 9 to the Cabinet Regulation of 23 December 2014 Nr. 805 “Regulations Regarding the Criteria, Time Periods and Procedures Determining Predictable Disability, Disability, and the Loss of Ability to Work” (hereinafter – Regulation No. 805) defines the criteria for issuing an opinion regarding determining medical indications for especially fitting a car and receiving a benefit to compensate for transport expenses.
Norms of Higher Legal Force
The first sentence of Article 91 of the Satversme of the Republic of Latvia (hereinafter – the Satversme)
“All human beings in Latvia shall be equal before the law and the courts.”
Article 109 of the Satversme:
“Everyone has the right to social security in old age, for work disability, for unemployment and in other cases as provided by law.”
The Facts
The case has been initiated with regard to an application by the Administrative District Court. The Court has suspended legal proceedings in the case under review, which has been initiated on the basis of an application by the child’s legal representative regarding issuing of a favourable administrative act.
The child has been diagnosed with severe mental development disorders, and he has been recognised as being a disabled person. In view of the child’s health condition, the transport benefit is needed, which is envisaged in the contested legal norm, because in his situation using the public transport is impossible. I.e., in crowded places, including public transport, the child is restless, he shouts, cries, hits himself and bites. Therefore, to avoid stressful situations and to ensure a safe environment, the child is being taken to school, rehabilitation and medical institution by a private car. The child’s legal representative had turned to the State Medical Commission for the Assessment of Health Condition and Working Ability requesting an opinion; however, the issuing of the opinion had been refused because the child did not meet the criteria defined in Annex 9 to Regulation No. 805, i.e., he had none of the health disorders included therein.
The Applicant holds that the State has failed to fulfil its positive obligation that follows from Article 109 of the Satversme, i.e., to provide social security to disabled persons with mental disorders. Hence, the transport benefit is not available to disabled persons with mental health disorders because Annex 9 of Regulation No. 805 comprises only physical health disorders. Thus, the basic issue in the case is whether the situation, where the transport benefit is intended only for disabled persons, who have those health disorders that are included in Annex 9 of Regulation No. 805, complies with the principle of legal equality.
The Court’s Findings
On the contested norm of the law
The Constitutional Court recognised that the transport benefit fell within the scope of the right to social security, included in Section 109 of the Satvermse, of a disabled person with restricted mobility. [12.2.]
The Constitutional Court also recognised that the contested legal norm was comprehensive and did not differentiate between groups of disabled persons. Hence, it envisages granting the transport benefit to all disabled persons with restricted mobility. [14.3.]
Hence, the contested norm complies with the principle of legal equality included in the first sentence of Article 91 of the Satversme, in interconnection with Article 109 of the Satversme. [14.3.]
On the contested norm of the Cabinet Regulation
In reviewing the contested norm of the Cabinet Regulation, the Constitutional Court compared two groups of persons:
1) disabled persons, who have restricted mobility due to mental health disorders;
2) disabled persons, who have restricted mobility due to physical health disorders.
The Constitutional Court recognised that all disabled persons with restricted mobility were in similar and comparable circumstances. [16.]
The Constitutional Court also recognised that pursuant to the Satversme the function of executive power that fell within the Cabinet’s competence, comprised only the issuing of external legal acts only in the case, where the legislator had specially authorised an institution of the executive power to do so. The issuing of such regulatory enactments is an administrative action and not the right to legislate. The Cabinet Regulations are issued to help enforce laws. [18.]
In the case under review, the legislator had authorised the Cabinet to develop a procedure for granting the transport benefit. The Cabinet, in fulfilling the legislator’s wish regarding the elaboration of the procedure for granting the transport benefit, had to comply with the purpose defined by the legislator – to ensure that the equal rights of all disabled persons with restricted mobility are observed. [18.1.]
Annex 9 of Regulation No. 805 defines criteria – it lists concrete health disorders, which are the legal basis for issuing an opinion. The Constitutional Court found that Annex 9 to the Cabinet Regulation No. 805 did not comprise mental health disorders. Thus, the Cabinet, in adopting the contested norms of Regulation No. 805 and setting the criteria for providing an opinion, essentially, restricted the circle of persons entitled to the transport benefit. [18.2.]
The Constitutional Court found that the Cabinet, in fulfilling the legislator’s will, had to develop such a procedure for assessing the restricted mobility of a disabled person and, respectively, for issuing an opinion that would make the transport benefit accessible to all disabled persons who objectively needed it. Thus, Annex 9 of Regulation No. 805, insofar it denies the availability of the transport person to a disabled person with restricted mobility, who has mental health disorders, is incompatible with the aim defined by the legislator. Hence, the differential treatment of groups of persons who are in similar conditions has not been established by legal norms adopted in a procedure set out in regulatory enactments. [18.3.]
The Constitutional Court held:
to recognise Section 12 (1) of the law “On State Social Allowance” as being compatible with the first sentence of Article 91 and Article 109 of the Satversme;
to recognise Annex 9 to the Cabinet Regulation of 23 December 2014 Nr. 805 “Regulations Regarding the Criteria, Time Periods and Procedures Determining Predictable Disability, Disability, and the Loss of Ability to Work”, insofar it does not envisage the granting of the transport mobility to a disabled person with restricted mobility, who has mental health disorders, as being incompatible with the first sentence of Article 91 and Article 109 of the Satversme of the Republic of Latvia and void as of the date of its adoption.
The Judgement of the Constitutional Court is final and not subject to appeal, it will enter into force on the date of its publication. The Judgement will be published in the official journal “Latvijas Vēstnesis” within the term set in Section 33 (1) of the Constitutional Court Law.
The text of the Judgement [in Latvian] is available on the homepage of the Constitutional Court:
https://www.satv.tiesa.gov.lv/web/viewer.html?file=https://www.satv.tiesa.gov.lv/wp-content/uploads/2018/02/2018-06-0103_Spriedums.pdf#search=
Open in PDF:2018-06-0103_PR_par_spriedumu_ENG
Linked case: 2018-06-0103