Social protection
During the reporting year, the Chancellor of Justice had to resolve a number of petitions concerning the care home service. People complained, for example, that they now have to pay more for a place in a care home than prescribed by law. They complained that care homes have increased the place fee at too short notice and have threatened to cancel the contract if a person does not agree with the amended terms of contract (for example, the new price). Some people were dissatisfied with having to live in a care home and not being able to live in their own home.
Several people complained that social benefits granted to them had been reduced or discontinued. It was also not uncommon for the organisation of a social service or its volume to have been changed without a clear justification for this having been given to the person.
Concerns about cross-border social security cases have become more frequent. People are increasingly making use of the opportunity to live and work in another Member State of the European Union or in another foreign country, but at the same time fail to consider in sufficient detail the social guarantees involved in such living arrangements. So a person may suddenly find themselves in a situation where they have been deprived of the right to support or benefit paid by the Estonian state.
As a general rule, a person is not entitled to receive benefits for the same purpose from several Member States of the European Union at the same time, nor is a person entitled to choose from which country they want to receive benefits. In EU Member States, benefits are granted on the basis of Regulation No 883/2004 of the European Parliament and of the Council. If Estonia has entered into a corresponding agreement with some other country, benefits will be paid in accordance with that agreement.
It can sometimes be difficult to navigate through different rules; if necessary, advice is offered by Estonian social security institutions: the Social Insurance Board, the Health Insurance Fund, the Estonian Unemployment Insurance Fund.
General explanatory information can also be found on the websites of these institutions. Sometimes things are made more burdensome by the fact that countries need to exchange data with each other in order to determine benefits or pensions, but this takes time.
Organisation of social services
Welfare reform
In mid-2023, legislative amendments (welfare reform) entered into force, according to which cities and rural municipalities must cover the salary costs of care workers and assistant care workers in institutions providing the 24-hour care service (care homes), the cost of working clothes and personal protective equipment, the cost of health checks and vaccinations, the cost of training and supervision (so-called care costs). Care home residents or their relatives must bear the costs of accommodation and meals and other expenses related to provision of the service (so-called own contribution). If necessary, a person receives support in meeting these costs.
The Chancellor compared the limits set by rural municipalities and cities for covering the costs of care with the fee that care homes charge for caring for a person. It was found that the limit set by several rural municipalities and cities did not enable covering the cost of a person’s care included in the price of the service offered by any care home. Considering the limit set by some rural municipalities or cities, a person cannot, if they so wish, get a place in a care home in their home municipality or city, or in a care home at a reasonable distance from their residence.
The Chancellor sent a memorandum to cities and rural municipalities, asking them to fund the 24-hour general care service provided outside the home in the manner prescribed by the Social Welfare Act. To the people who had contacted her, the Chancellor also explained the procedure for paying for a place in a care home and the family’s maintenance obligation. The Chancellor noted that if a care home raises a place fee, a person has the right to ask for assistance from their home rural municipality or city. In addition, the Consumer Protection and Technical Regulatory Authority may be notified if standard terms that unreasonably harm the consumer have been included in the contract concluded with a care home.
The Chancellor also analysed possible errors in charging for a care home place. The Chancellor found that the city government, when deciding on the funding of social services and a person’s own contribution, must assess the financial situation of the person in need and take into account that the person should also have money left for personal expenses. Since, in this particular case, the city had failed to comprehensively assess the financial situation of the person in need, the Chancellor asked for a reassessment and assurance that the person was left with enough money for use at their own discretion after payment of their own contribution.
According to the Constitutional Review Court Procedure Act, the Chancellor of Justice participated as a party to proceedings in a landmark discussion where the Supreme Court analysed the constitutionality of the distribution of financial obligations related to the welfare reform. Specifically, Räpina Rural Municipal Council and Põlva Rural Municipal Council and Tartu City Council applied to the Supreme Court and requested a check as to the constitutionality of failure to issue legislative acts to finance the 24-hour general care service provided outside the home.
In her opinion submitted to the Supreme Court, the Chancellor concluded that even though the Riigikogu restricted the possibilities for cities and rural municipalities to decide how to make a care home place available to people, it did so for a compelling purpose and constitutionally.
Since the city and rural municipal councils that approached the Supreme Court had not proved that they were unable to fulfil the obligations laid down by § 221(2) and (5) of the Social Welfare Act, the Chancellor of Justice could not take a position on whether these cities and rural municipalities had enough money to comply with the law. The Supreme Court held that the contested parts of the welfare reform were constitutional.
Organisation of the general day-care service
In response to one of the petitions, the question arose as to whether rural municipalities and cities should also organise the general care service provided outside the home as a day-care service.
The Chancellor explained that cities and rural municipalities must offer the general care service provided outside the home as both a daytime and a round-the-clock service (see § 20(2) and (3), § 22(2) of the Social Welfare Act, as well as page 20 of the explanatory memorandum drawn up by the initiator of the Draft Social Welfare Act (98 SE): “Day-care, i.e. the daytime general care service, may be needed by persons who, at night, are able to cope independently in their own home or have guaranteed care at night and supervision through informal care.”). Since the law does not link provision of the general day-care service to the type or severity of disability or other health condition, cities and rural municipalities must organise this service for all those in need. The daytime service would also be in line with the principles of social welfare, according to which a person is offered, first of all, assistance and support that enables them to live at home or receive a service offering a home-like environment and living arrangements (§ 3(1) clause 21 Social Welfare Act).
Granting of social services
A parent of a child with disability asked the Chancellor to check whether the local authority could require them to submit an application every time they need a babysitter for their disabled child. Previously, the parent could use the help of a babysitter for 70 hours a month, which was paid for by the local authority. Then the volume of the service was reduced without explaining the reasons for the change.
The Chancellor found that such conduct could not be considered adequate. Decisions must be justified to the person. Justification is necessary, inter alia, in order to enable a person in need to defend their rights in extra-judicial administrative challenge proceedings or administrative court proceedings. The Chancellor recommended that the local authority reassess the parent’s burden of care and, on that basis, make a clearly reasoned decision. If the volume of the service is reduced, then justification should also be given as to why the parent is no longer entitled to use the babysitter to the same extent as before.
Social protection is based on the principle of human dignity. It is incompatible with this principle if a person has to constantly justify their elementary needs to the public authorities and satisfaction of those needs depends on whether they receive the approval of the public authorities.
Grant of subsistence benefit
Payment of subsistence benefit to a conscript
A conscript asked the Chancellor of Justice whether the city of Narva had the right to reduce the subsistence benefit granted to them.
The Chancellor found that discretionary decisions of the Narva City Social Assistance Board to reduce the benefit were in themselves within the limits of the law, since according to the current law applications for subsistence benefit for conscripts can be resolved in several ways.
However, in the Chancellor’s opinion, the specific decisions of the Social Assistance Board could not be considered lawful because after paying housing costs the conscript did not have money left for personal expenses. This is not in line with the principle of human dignity. In the Chancellor’s opinion, the decisions were also not lawful because it remained unclear why the benefit was reduced. The reasoning of the decision, including the calculation procedure, was incompatible with the cited legal norm. Therefore, the Chancellor asked the Social Assistance Board to reconsider the decisions.
The Chancellor of Justice specified that the Social Assistance Board may assess whether a conscript could rent out their apartment and whether it is reasonable to require them to do so. To this end, the Board must ascertain all the important circumstances: for example, the possibilities of renting out an apartment, the costs associated with this, and whether the conscript needs to use their apartment while on leave from the military. If, as a result of consideration, the Board decides that the city will pay subsistence benefit to the conscript only if they rent out the apartment, this must clearly be set as a secondary precondition for granting subsistence benefit.
Reduction and termination of subsistence benefit
The Chancellor was contacted by a person whose subsistence benefit was first reduced and then stopped. The recipient of the subsistence benefit did not agree with this decision and asked the municipality to revoke it.
In its replies, the rural municipality government explained the principles for granting and paying subsistence benefit and complained that the petitioner was not cooperative. The municipality government did not treat the petitioner’s letters as an administrative challenge and did not give them a deadline for remedying deficiencies in the challenge.
The Chancellor found that an application must also be regarded as a challenge even if it does not expressly request that the administrative act be amended or annulled, but it is clear from the content of the application that this is what the person actually wants. In such a case, a decision on challenge conforming to statutory requirements must be issued regarding objections to the administrative act. Justification is necessary, inter alia, in order for a person to be able to defend their rights effectively in extra-judicial challenge proceedings or administrative court proceedings.
Cross-border social security
Entitlement to family benefits when each parent lives in a different country
The Chancellor’s help was sought by a parent who lives and works in Estonia while the child’s other parent lives and works in Latvia. The Social Insurance Board had suspended paying child benefits to the family because, according to the Board, the child’s main place of residence was unclear.
The Chancellor found that the Social Insurance Board had not violated the law. As a general rule, a person is not entitled to receive benefits for the same purpose from several Member States of the European Union at the same time. Nor is a person entitled to choose from which country they want to receive benefits. Regulation No 883/2004 of the European Union lays down rules under which family benefits are paid primarily by the country where the parent works and pays taxes. If each parent works in a different country, benefit is paid by the country where the child resides. Separate rules apply if the child lives in several countries, in which case the child’s main place of residence is determined.
This situation may also affect the right to benefits paid by cities and rural municipalities.
In this particular case, the issue concerned entitlement to childcare service support, which requires that, according to the population register, both the child and their parent must reside continuously in the same rural municipality or city for a certain period.
Childcare service support is paid voluntarily by cities and rural municipalities; the law does not stipulate payment of this support. The Supreme Court has said that cities and rural municipalities may voluntarily pay support only to people who are residents of that city or rural municipality according to the population register.
Payment of family benefits if one of the parents does not work and is residing in Estonia with the child
The Chancellor was contacted by a parent who lived in Estonia and was not working at the time of submitting the petition. The child’s second parent, the petitioner’s former spouse, worked in Finland. As the petitioner had stopped working, the Social Insurance Board suspended payment of child benefit to them.
Under European Union regulation No 883/2004, as a general rule, family benefits are to be paid by the country where the person works. If both parents are employed, family benefits are paid by the country where the child lives. The regulation does not exclude the possibility that, if the family benefits are higher in one country, that state will pay supplementary benefits to a family residing in the other country.
As long as the petitioner worked in Estonia, the Estonian state was responsible for paying family benefits. Therefore, during the petitioner’s employment, they were paid child benefit by the Social Insurance Board. As Finnish child benefit is higher than Estonian child benefit, the Finnish state could pay a supplementary benefit to the child’s parent working in Finland.
When the petitioner stopped working, the responsibility for paying child benefits transferred to Finland. As a result, the Social Insurance Board suspended paying child support to the petitioner. Child benefits continued to be paid to the family by the Finnish state, which paid the benefit to the child’s parent working in Finland, but the petitioner did not know this.
The European Union regulation also provides that if a parent who receives family benefits does not use this benefit to support their child, the authority responsible for family benefits will pay the benefit to the person who is actually raising the child.
It was explained to the petitioner that they may request the other parent to voluntarily pass on the child maintenance benefits to the petitioner. In such a case, the parent may also turn to the Finnish social security authority KELA for help.
The amount of work ability allowance if a person resides in another European Union Member State
At the initiative of the Office of the Chancellor of Justice, one of the distinct features in calculating the amount of work ability allowance was discussed with the Ministry of Social Affairs, the Ministry of Economic Affairs and Communications and the Estonian Unemployment Insurance Fund. At issue was a situation where a person was found to have no or partial ability for work in Estonia, but they lived in another Member State of the European Union, their ability for work had been reassessed due to expiry of the previously set term, and a new decision was made on payment of work ability allowance.
According to previous practice, the Estonian state reduced the allowance paid to a person in such a case, as the period of the person’s residence abroad was extended. Thus, each time the person’s ability for work was re-assessed, the person was paid a lower allowance than before, even if living in another Member State did not lead to an increase in benefit in that country.
The ministries and the Estonian Unemployment Insurance Fund, through the Office of the Chancellor of Justice, reached an agreement that if a person’s work ability allowance, incapacity for work pension or other benefit paid for the same purpose is not increased in another EU Member State, the Estonian state will no longer reduce the work ability allowance paid to a person with partial or no work ability.
As a result of discussions, the Ministry of Social Affairs made a proposal to the Administrative Commission on Social Security for Migrant Workers attached to the EU Commission to supplement Annex IX to Regulation No 883/2004 of the European Union with an entry on the Estonian work ability allowance. The Commission approved Estonia’s proposal. The amendment to Annex IX to the Regulation will enter into force after it has been approved by the European Parliament.
In addition, on the proposal of the Ministry of Economic Affairs and Communications, the Riigikogu clarified the wording of § 13(5) of the Work Ability Allowance Act. The amendment entered into force on 15 May 2024.
International protection and social rights
The right to family benefits of a beneficiary of temporary protection residing in Estonia
The Chancellor was contacted by a person to whose partner, who is a Ukrainian citizen, payment of child benefit and benefit for a family with many children was suspended.
According to the Social Insurance Board, many families who have come to Estonia from Ukraine have received benefits from both Estonia and Ukraine simultaneously. Under the Family Benefits Act, residents of Estonia receiving a benefit of the same kind from another country are not entitled to family benefit. Under the social security agreement between the Republic of Estonia and Ukraine, family benefits are paid by the country where the family lives. If entitlement to family benefit arises under the legislation of both Contracting Parties, the benefit is paid by the state in which the child resides (Article 10 of the Agreement).
In such a situation, the Social Insurance Board may suspend paying family benefits and ask the competent Ukrainian authority or the beneficiary themselves for information concerning payment of family benefits. This situation may be burdensome for the person, but it is still necessary to find out whether they are entitled to support from the Estonian state.
Provision of healthcare services to applicants for international protection
A petition submitted to the Chancellor of Justice revealed that the Social Insurance Board does not allow applicants for international protection living outside the accommodation centre to receive healthcare services in the manner prescribed by law.
When the facts were clarified, it was found that the complaint was true. The Social Insurance Board has taken the view that applicants for international protection residing outside the accommodation centre are guaranteed access to medical care on the same basis and in the same manner as all other people without health insurance. This means that, in the opinion of the Social Insurance Board, applicants for international protection should receive only emergency medical care and paid services.
Such a position runs counter to § 32(1) clause 3 and § 36(2) of the Act on Granting International Protection to Aliens. Under these provisions, applicants for international protection who voluntarily reside outside the accommodation centre are also entitled to healthcare services through the accommodation centre. A similar procedure is established by a regulation of the Minister of Social Affairs.
On this basis, the Chancellor found that the Social Insurance Board had violated the law. The Social Insurance Board cannot refuse to organise services assigned to it by law on the grounds that, in the opinion of the Board, legislation should be changed.
The Chancellor noted that applicants for international protection must be given appropriate explanations on how they can have access to a doctor if necessary. This information should also be published, for example, on the information sheet for an applicant for international protection and on the websites of the Social Insurance Board and the accommodation centre.