SOCIAL SECURITY
The main pillar of the Constitution is the principle of human dignity. Inter alia, this is expressed in the duty of the state to ensure a decent life for all members of society. Particular attention should be paid to those who cannot cope without outside assistance. Sufficient and necessary assistance to an individual should be provided by their family members, but also by the state and local authority.
Due to poverty, exclusion and often inconsiderateness, or a combination of all these, the everyday life of many of our fellow beings is less dignified than it should in a developed European country. Therefore, problems of social security are under the Chancellor’s scrupulous attention. The field of action in this area is very wide – beginning from an allowance granted to an elderly person living alone to distribution of functions (and resources) of the state and local authorities in ensuring social welfare services.
Ability to cope financially
Since 2017, the state pays an allowance of 115 euros once a year to single pensioners. This is paid automatically to everyone who has reached retirement age and receives a pension not exceeding 1.2 times the average old-age pension and who, according to population register data, lives alone. The state does not verify the existence of other income or the fact of a person living alone.
During this reporting year, the Chancellor also had to resolve the concerns of pensioners deprived of the allowance because of incomplete or incorrect address data. Under the Spatial Data Act, location addresses must be established for parts of buildings (apartments) that are dwellings or if it is necessary to distinguish the parts on the basis of an address for other reasons
For example, Tallinn has refused to assign an address to a separate dwelling if the number of apartments/dwellings prescribed by a detailed plan does not coincide with the actual number of dwellings. Tallinn has also left an address unspecified for the reason that otherwise the person would lose the land tax exemption. At the Chancellor’s request, Tallinn city has nevertheless changed its previous practice.
To alleviate poverty, food aid is distributed to those most deprived from the Fund for European Aid. The Chancellor was asked whether the conditions for providing food aid were compatible with the requirement of equal treatment. The question derived from the fact that only those receiving or applying for subsistence benefit or receiving benefit paid from a local authority budget in January, February, August or September qualified for food aid. However, all those having received or applied for the same benefits in all the other calendar months were denied the aid.
In a letter sent to the Minister, the Chancellor found that the procedure for distributing food aid did not indicate objective reasons why food aid may be distributed to people who have received or applied for benefits specifically in January, February, August or September. Unequal treatment cannot be justified by administrative or technical difficulties or lack of money. Therefore, the current procedure is unconstitutional. The Chancellor asked the Minister of Social Affairs to prepare a procedure for distribution of food aid that complies with the rules on equal treatment and the Constitution. The Minister of Social Affairs replied to the Chancellor that, since food aid would be distributed on three more occasions under the current procedure, introducing changes to the procedure within this time frame would not be reasonably attainable and changing the conditions for providing aid is not practicable.
Once again, rules for paying parental benefit were on the agenda. In the frame of a court case, the Supreme Court asked the Chancellor’s opinion on § 37(3) (second sentence) of the Family Benefits Act. The current rule determines how social tax paid on benefit from the Estonian Unemployment Insurance Fund affects the underlying amount for calculation of parental benefit. In the specific case, the statutory rule reduced the parental benefit granted to an individual by a total of 672 euros because social tax paid on Unemployment Insurance Fund benefit was not accounted for in calculating the amount of parental benefit.
In her opinion to the Supreme Court, the Chancellor found, similarly to the Tallinn Court of Appeal, that § 37(3) of the Family Benefits Act contravened § 12 of the Constitution, since no reasonable and relevant justification existed for different treatment of people in a similar situation.
Social services
During this reporting year, too, the Chancellor dealt with local authority regulations contravening the requirements for provision of compulsory social services laid down under the Social Welfare Act. According to the Chancellor’s assessment, provisions in several regulations in force in Narva City are unconstitutional, so that in case of need residents of Narva cannot receive assistance or support from the city to the extent prescribed. Despite the Chancellor’s proposal, Narva City Council has not amended the unlawful regulations. On that basis, the Chancellor lodged an application with the Supreme Court to repeal several provisions in Narva City Council regulations on mandatory social services.
The Supreme Court had not yet delivered its judgment by 31 August. The judgment may have a significant impact on distribution of state and local government functions.
The Chancellor also assessed the lawfulness of a Tartu City Council regulation on the procedure for provision of social services to children with disabilities. In a letter to the City Council, the Chancellor found that a rural municipality or city should not limit provision of a mandatory social service only to within its own boundaries. Such a limitation does not enable a local authority to take into account a person’s specific situation: for example, the need to travel outside the boundaries of the municipality to receive rehabilitation or to go on a class excursion with their support person. The Chancellor found that the regulation was unlawful and proposed to Tartu City Council that it should be brought into line with the Constitution.
Tartu City Council complied with the Chancellor’s opinion and annulled the relevant provision in the regulation.
Several persons contacting the Chancellor were dissatisfied with how local authorities implement laws and provide social services.
Several petitions concerned the process of applying for housing from a local authority. Some fundamental mistakes were also found when resolving the petitions: Tallinn City had failed to carry out an all-round assessment of a person’s need for assistance, Tapa rural municipality had failed to provide a person with housing compatible with their needs within a reasonable time. The Chancellor reminded the local authorities that a reasoned decision on grant or refusal of assistance must be issued by the deadline laid down by law and by complying with the formal requirements for the administrative act. The Chancellor also emphasised that ensuring housing does not mean that an individual is put in a queue of housing applicants. If a local authority has no vacant housing that it can provide, a city, or rural municipality must itself procure it or lease it from the owner.
In a recommendation sent to a local authority, the Chancellor noted that the rural municipality had failed to sufficiently explain to a person in need the substance of the social services in question or its intention to provide assistance. Therefore, the person had accepted solutions which in reality did not help them. The Chancellor drew attention to the fact that decisions concerning social assistance must be made within the time period laid down by law. Further, the Chancellor explained that even though a local authority is not required to help someone renovate a home, it nevertheless has the duty to ensure habitable housing to persons in need where necessary.
The Chancellor was also contacted with issues concerning confidentiality of social protection. A legally competent adult person expressed dissatisfaction that a local authority official had contacted their mother and not themselves to discuss the need for social assistance. According to the petitioner, they had not applied to the rural municipality for assistance. The Chancellor explained to the municipality that it had not acted lawfully when first contacting the petitioner’s mother and not the petitioner in person to establish the need for assistance. There is no information that the municipality had the petitioner’s consent for this. A person’s family members can be involved in provision of social assistance only if the person in need consents to this. The Chancellor recommended that the rural municipality avoid such mistakes in the future.
Dignified aging
A decent life also includes the opportunity to receive competent care and assistance when an individual is no longer able to cope on their own at home, due either to poor health or an unsuitable living environment. Such assistance must be provided to people in general care homes. Most residents in general care homes are elderly people, but also younger or middle-aged people may end up in a care home as a result of illness or injury.
Supervision over decent treatment of care home residents falls among the Chancellor’s direct tasks. The Chancellor’s advisers from the Inspection Visits Department inspected the activities of five general care homes during the reporting year. A general practitioner or geriatrician was always involved in these inspection visits. The inspections involved interviews with residents and staff, as well as examining the rooms and documentation.
In comparison to previous years, it may be argued that, even though sometimes still far from the ideal, the situation in care homes in Estonia is nevertheless slowly improving. First and foremost, it is staffing problems, shortage of money and outdated infrastructure that pose an obstacle to providing services complying with requirements set out in legislation. Sometimes supervisory officials also encounter inconsiderateness and unprofessionalism.
During this reporting year, too, the Chancellor’s advisers found on several occasions that residents in a general care home were locked in their rooms or departments, and in the worst case were secured to a chair or bed. The usual justification given is shortage of staff, as a care home does not have enough people to deal with the residents. One care home also used a seclusion room for placement of residents with problematic behaviour. (For more detail about care homes, see the chapter „Inspection visits“.)
In October 2017, the Chancellor made a proposal to the Riigikogu to bring the Social Welfare Act into line with the Constitution. According to the Chancellor’s assessment, § 47(3) of the Social Welfare Act was incompatible with the Constitution to the extent that it did not enable persons in a social welfare institution to obtain the necessary assistive devices with state support. This placed them in a less favourable situation compared to persons in need of assistance living at home. The Riigikogu agreed with the Chancellor’s proposal and on 14 November 2018 adopted an amendment to the Social Welfare Act. Since 1 January 2019, persons living in social welfare institutions can obtain assistive devices on favourable conditions under the same principle as persons living at home.
Year by year, Estonian society is increasingly willing to discuss the issue of dignity at the end of life. This also includes patient’s consent concerning medical treatment and the wish to legalise euthanasia in some form. In 2019, considerable attention was attracted by the story of a patient with an incurable muscular disease who eventually opted for assisted suicide in a private clinic in Switzerland.
All such changes need to be discussed in society thoroughly and without haste. The right and duty of decision-making and creating opportunities lies with the Riigikogu.
Healthcare
Based on several surveys and analyses carried out at different times, it has been concluded that the Estonian general practitioner system lacks qualified doctors in order to ensure its sustainability. The main obstacles causing a shortage of doctors in smaller settlements, mentioned in the 2011 National Audit Office report „Organisation of general practitioner care“, have not disappeared. Access to general practitioner care may significantly deteriorate in the nearest years unless the state starts systematically looking for solutions to remedy the situation.
The Family Physicians Association of Estonia asked for the Chancellor’s assessment whether the Health Board had acted lawfully by assigning people who had lost their general practitioner in Valga and Jõgeva counties and Setomaa region to practice lists of other general practitioners. It was also asked whether decisions on assigning persons to a practice list of a general practitioner may be published in the official online publication Ametlikud Teadaanded and whether the Health Board had acted in line with the meaning and purpose of the law when assigning people to practice lists.
According to the Chancellor’s assessment, the activities of the Health Board had some shortcomings. For instance, no need or legal basis existed to publish decisions on assigning people to practice lists in the official online publication Ametlikud Teadaanded. Also, when assigning people to a new general practitioner’s list the Health Board has not always followed the requirements laid down in legislation. However, the problem is wider and, to ensure uniform access to primary healthcare, the situation needs to be thoroughy analysed and a national action plan drawn up.
The Ministry of Social Affairs has said that opportunities are being sought to improve the general practitioner system. The Ministry has noted that in this process it is important to raise the quality of communication with general practitioners. The Ministry of Social Affairs, the Family Physicians Association of Estonia, and the Estonian Health Insurance Fund concluded a goodwill cooperation agreement on “Ensuring sustainability of general practitioner care” on 19 March 2019. Amendments to the Health Services Organisation Act are being prepared to increase flexibility of the regulatory framework for general medical care. The coming years will show whether measures described by the Ministry of Social Affairs will prove appropriate and sufficient. Thus, the Chancellor has reason to carefully monitor developments in this field.
The issue of shortage of healthcare professionals indirectly arose also in connection with another petition received by the Chancellor concerning the Estonian language proficiency of medical staff.
Language proficiency requirements laid down for medical staff under the Language Act are justified. Midwives and medical nurses must have Estonian language proficiency on level B2 and doctors on level C1. The state exercises supervision over proficiency in the official language. The Chancellor found that the current system cannot be considered unconstitutional, but in terms of practice it would be reasonable to make the system more effective.
The situation where problems of compliance with the language proficiency requirements exist in some regions is probably due to shortage of healthcare professionals. When maintaining the language proficiency requirements, a reasonable balance has to be found between two constitutional rights: people are entitled to professional medical care and are entitled to receive it in Estonian. Both are equally important.
Under the current scheme, the language proficiency of doctors and nurses is verified in the course of supervision, but the state does not require proof of language proficiency before a specialist has begun working. Legislative amendments entering into force on 1 September 2019 specify the requirements for healthcare professionals coming from third countries.
The majority of doctors and nurses with insufficient Estonian language proficiency working in Estonia have acquired their general education in Estonia. Thus, insufficient language proficiency is a result of an inadequate educational reform and language training. The language proficiency requirement also applies to them, and can be verified by the Language Inspectorate.
Health insurance for resident doctors
Under the Health Insurance Act, resident doctors receive health insurance as employees and not as students because under the University of Tartu Act doctors in residency are no longer students. However, under § 5(2) of the Health Insurance Act, in the case of a fixed-term employment contract health insurance protection only applies if the employment contract was concluded for a term exceeding one month. If the duration of an employment contract is less than one month (as is often the case in a residency programme), a resident doctor is left without health insurance.
The Chancellor drew the attention of the Minister of Health and Labour to the problem and the Ministry promised to find a solution. The Health Insurance Act was supplemented with a provision under which a resident doctor also receives health insurance in the case of entering into an employment contract lasting up to one month. The amendment entered into force on 1 January 2019.
Information about vaccination
The Chancellor was asked to verify whether information about possible risks concerning vaccination of children was sufficient and accessible. The Chancellor found that no legal norm in force restricts people’s right to receive necessary information, and healthcare professionals are obliged to provide all-round information to a patient before vaccination. Nevertheless, the relevant website of the Health Board could be more precise and more informative on issues of vaccination. (See also the Chapter “Children and young people”.)
Access to medication
The Chancellor was contacted by a parent of children suffering from rare diseases who was concerned that, due to the absence of valid marketing authorisation in Estonia, they had failed to receive the necessary medication for one and a half years. Medicines without marketing authorisation may be brought to Estonia and marketed here only if a competent doctor has made a reasoned request for this and if the State Agency of Medicines has issued a single import and marketing permit to that effect. In the case of the petition in question, both conditions were fulfilled and the Estonian Health Insurance Fund had also given consent for compensation of the medication. Also two wholesale distributors of medicinal products were found who, in principle, agreed to supply the medication to Estonia. However, one of the wholesalers was not satisfied with the price of the medication, while the other was unable to satisfy the transport conditions.
Unfortunately, the relevant information and guidelines for subsequent steps did not reach the parent of the sick children. According to the Chancellor’s assessment, in an exceptional or otherwise rare situation it cannot be presumed that persons in need are themselves aware of and familiar with the particularities of the whole system regulating import of medicines. Therefore, the duty to deal with the formalities and notify a person in need should lie with professionals. After the Chancellor’s intervention, with the help of the State Agency of Medicines a supplier could be found in a few weeks and the medicine was brought to Estonia.
21st century work
There may be situations in life to which laws provide no perfectly understandable and satisfactory answers. For example, the Chancellor was asked about a situation where an employer must also pay an unemployment insurance premium on remuneration of a worker who came to Estonia for a short term (for up to one year). At the same time, the law says that unemployment insurance benefit may be paid to a person whose insurance period has been at least 12 months within three years. Thus, the law has created a situation where payments have to be made but receiving the benefit is precluded.
However, according to the Chancellor’s assessment, the matter is not unequivocally clear. In her letter, she found that for the premium paid the worker may receive benefit either in Estonia or their country of residence if a relevant contract has been concluded between the person’s country of residence and Estonia. Moreover, it cannot be ruled out that the specific person would come to work in Estonia again during the three-year ‘qualification period’.
The Chancellor added that in June last year she contacted the Riigikogu Social Affairs Committee and the Minister of Health and Labour with proposals on what to consider in updating the unemployment insurance system. The Ministry of Social Affairs, in cooperation with the Praxis Centre for Policy Studies, did begin renewal of the unemployment insurance system. In a study published on 5 June 2019, the shortcomings of the current unemployment insurance system were analysed. The Ministry of Social Affairs is currently preparing an intention to draft a new law which would be sent to organisations of employers and employees and interest groups for expression of opinion at the end of 2019. The new law would be adopted by the Riigikogu.
With regard to the issue of labour relationships, the Chancellor was contacted by the Estonian Taxpayers Association, which asked for an assessment whether the Social Insurance Board correctly interpreted the provisions of the Employment Contracts Act regulating compensation of holiday pay to persons with partial or no capacity for work upon termination of an employment contract with them, According to the practice of the Social Insurance Board, holiday pay is compensated to an employer under § 66(1) of the Employment Contracts Act, but the Social Insurance Board does not compensate the employer for benefit paid to an employee for unused holiday (§ 71 Employment Contracts Act) upon expiry of the employment contract.
In a recommendation sent to the Social Insurance Board, the Chancellor found that such an interpretation was not justified. The Chancellor asked the Social Insurance Board, in the future, to interpret the law so that employers are also compensated for benefit paid for unused annual holiday to a person with partial or no capacity for work upon expiry of their employment contract.
The Social Insurance Board agreed with the Chancellor’s proposals and explanations and, as of 1 July 2019, employers are compensated for payment made to an employee for unused holiday upon expiry of the employment contract. Since the Social Insurance Board compensated holiday of employees who are minors on the same basis then the Board also changed the administrative practice of holiday compensation for employees who are minors.
The Chancellor was asked why the qualification requirements for trainers of occupational health first-aid providers were tightened and why, as of 2019, trainers of first-aid providers have to be entered in the register of healthcare professionals even though first-aid trainers provide none of the healthcare services listed in the law. The Chancellor found that the requirement ‒ imposed with the aim of ensuring that first-aid training is provided by persons whose medical knowledge and skills comply with the professional qualification requirements ‒ may be necessary.
According to explanations by the Ministry of Social Affairs, the amendments were necessary because applying erroneous and outdated knowledge in healthcare may cause damage to health or death, so that stricter requirements are justified. The requirement of registration in the national register of healthcare professionals provides an opportunity to be convinced, on the basis of a public reliable source, whether a first-aid trainer is competent, and it also helps to ensure quality of training.
Equal treatment
Under the Estonian Constitution, everyone is equal before the law. No one may be discriminated against on the basis of ethnicity, race, colour, sex, language, origin, religion, political or other views, property or social status, or on other grounds.
Under the Chancellor of Justice Act, the Chancellor carries out checks over conformity of legislative acts with the Constitution and laws as well as over the activities of representatives of public authority. The Chancellor also arranges conciliation proceedings for resolving discrimination disputes and promotes the principle of equality and equal treatment.
During the reporting period, the Chancellor received 20 petitions with complaints about discrimination. Of these, seven concerned different treatment based on disability, three on age, two on sexual orientation, two on language, ethnicity and citizenship, and one on origin. This year, the Chancellor did not initiate any conciliation proceedings.
Discrimination on the ground of age
The Chancellor was asked whether release of police officers from service on the ground of age is lawful. Under the Police and Border Guard Act, a police officer may serve in the police service as a specialist until attaining the age of 55 years and as an executive officer until attaining the age of 60 years. The Director General of the Police and Border Guard Board may extend the period of service of a police officer for one year at a time until the officer attains the pensionable age laid down in § 7 of the State Pension Insurance Act.
In the Chancellor’s opinion, a police officer should not be released from service merely because of exceeding the age threshold. The principle of equal treatment must be observed when applying the law. If a police officer wishes to continue in service despite their age, the decision should above all be based on considering whether they meet the requirements for physical and mental capability prescribed for police officers by law. Section 96 of the Police and Border Guard Act will lose effect on 1 January 2020.
The Chancellor was asked to verify whether an amendment to the Police and Border Guard Act under which, as of 1 May 2019, police officers are paid a full superannuated pension even when an officer continues work in the police service is compatible with the principle of equal treatment. The amendment only concerns police officers. No wages and pension are simultaneously paid to representatives of other professions listed in the Superannuated Pensions Act. According to the Chancellor’s assessment, the idea of the amendment is to ensure that positions directly related to ensuring internal peace in the country are filled. On that basis, the respective regulatory framework cannot be considered unconstitutional.
Language and ethnicity
The Chancellor was contacted by the head of a catering establishment who had a susbition that if the Language Inspectorate asks specific questions about the education of an employee with a foreign name, this could mean discrimination on the ground of ethnicity.
The Chancellor did not agree with that interpretation, but recommended that, in the future, the Language Inspectorate should only ask additional information about those workers whose data are not in the Estonian Education Information System. The same principle is provided in the Law Enforcement Act applied in the event of state supervision.
Sexual orientation
By judgment of 21 June 2019, (5-18-5) the Supreme Court declared unconstitutional and repealed the provisions of the Aliens Act that precluded issuing a temporary residence permit to an alien for settling in Estonia with their registered same-sex partner who is an Estonian citizen. The Chancellor made a similar proposal to the Riigikogu in 2015.
Children in youth camps
Some youth camps do not wish to admit children from substitute homes or family houses, or allow them to the camp only together with an attendant.
The Chancellor asked the Ministry of Education and Research and the Estonian Youth Work Centre to resolve the issue, and they organised roundtables with the participation of youth camps, substitute homes and the Ministry of Social Affairs. Organisers of youth camps were explained that children from substitute homes or family houses should be admitted to a camp on the same conditions as all the other children. If parents of so-called ordinary families do not have to accompany their children in a camp, this cannot be required of a family parent or attendant in a substitute home or a family house either.
At the same time, it was agreed that if a substitute home or a local authority as the child’s guardian does not give the organiser of a camp sufficient information about a child (e.g. who is the child’s contact person who can be contacted round the clock, or what are the child’s special needs), this would be notified to the Social Insurance Board or the representative organisation of substitute homes and family houses which will have to resolve the situation.
Different treatment on the ground of disability
The Chancellor submitted an opinion within constitutional review court proceedings concerning the constitutionality of hearing requirements laid down for prison officers (case 5-19-29).
The Chancellor found that § 4 of the Government Regulation No 12 („Health requirements for prison service officers and the procedure for health checks, and the substantive and formal requirements for a health certificate“), as well as Appendix 1 to the Regulation, are incompatible with § 29 of the Constitution laying down the right to freely choose one’s profession, and § 12(1) laying down the general fundamental right to equality and prohibition of discrimination. The provisions are unconstitutional since they do not enable an assessment of whether some impairment of the hearing is an impediment to a prison officer’s work and whether it can be compensated, for example, by a hearing aid – similarly to how people with poor eyesight use glasses or contact lenses.
The Supreme Court has not yet delivered judgment in this matter. (See also the Chapter „New tasks“.)