The Supreme Court finds it reasonable to grant retirement pension on preferential terms to person who takes care of disabled child

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25 August 2017

On August 25, the Department of Administrative Cases of the Supreme Court left unamended the judgment of the Administrative Regional Court in part which satisfies the application for granting a retirement pension on preferential terms to a person who takes care of a disabled child. By a judgment of the court of appeal, the State Social Insurance Agency was instructed to grant the applicant a retirement pension on preferential terms from July 18, 2012. In the judgment, the Supreme Court states that the Regional Court in its decision has correctly recognized the applicant's right to early retirement pension, taking into account that the applicant’s child has signs of disability recognized by the Ministry of Health of the Republic of Latvia’s Order No. 214 of September 17, 1990. Such signs of disability were detected when child was seven years and ten months old and remained unchanged until the age of 18.

The applicant addressed the SSIA (State Social Insurance Agency) with a request for early retirement pension, stating that she had cared for a disabled child since his son had lost his hand at the age of 8. The SSIA refused to grant a pension, considering that the applicant has not been in care for at least eight years for a child who has been recognized as a disabled child until the age of 18 under the procedure prescribed by regulatory enactments, as required by the fourth paragraph of Section 11 of the Law "On State Pensions", as the child has been approved for disability at the age of 12.

When examining the case under cassation procedure, the Supreme Court applied to the Constitutional Court for determining the compliance of the provision included in Section 11, Paragraph four of the Law "On State Pensions" with the provisions of the Constitution of the Republic of Latvia.

By the judgment of June 15, 2017, the Constitutional Court recognized that the fourth paragraph of Section 11 of the Law "On State Pensions", insofar as it deprives a person of the right to retirement pension before reaching the statutory age and establishes the requirement to determine that a child has been recognized as having a disability according to invalidity criteria provided for in the laws of the USSR that were applied during the period of childcare, is not in accordance with the first sentence of Section 91 and Section 109 of the Constitution.

In the present case, the dispute concerns the applicant's son's disability for time period from August 15, 1986, when his forearm was amputated, until September 17, 1990, when the regulatory enactment of the Republic of Latvia came into force - Order No. 214 - according to which the applicant's son was entitled to a disability. At that time, the order of the USSR No. 1265 was in force, according to which the applicant's son could not be granted invalidity.

The Constitutional Court in the aforementioned judgment has recognized that the application of the invalidity criteria for the childcare in the previous period as one of the possible alternative means that would less hurt the person’s fundamental rights defined in the Constitution is the application of the regulatory enactments regarding the criteria for the determination of disability for children adopted after the restoration of Latvia's independence. Regarding Order No. 214 the Constitutional Court has indicated that it included a considerably wider range of criteria for determining disability applicable to children, which was related not to the development of science but to the establishment of an appropriate system of determining disability suitable for children, which was not provided for by the applicable USSR regulatory framework, which, moreover, did not comply with principles of protection of the rights of children with disabilities and their family members, consolidated in international law, and the legal framework of a democratic state governed by the rule of law, namely, Latvia. Furthermore, until the moment of entry into force of Order No. 214, children of specific parents may in fact already had the illness or pathological condition indicated in this order, but according to the legislation applied at that time disability was not recognized.

 

Information prepared by Baiba Kataja, the Press Secretary of the Supreme Court

Tel.: +371 67020396; e-mail: baiba.kataja@at.gov.lv