Austria - Labour and Social Court (ASG), Vienna, 17 April 2013, 24 Cgs 242/12x-17

Facts:

The Applicant is a minor andbeneficiary of subsidary protection statusin Austria. Owing to muscular dystrophy, he is severely disabled and as a result requires wide-ranging support. He (or his father) therefore applied for a care allowance. This application was refused in a decision of 30.10.2012. The Applicant instituted proceedings against this at the Labour and Social Court and stated as grounds that his entitlement to a care allowance arose directly from Article 29 of the directly applicable Qualification Directive. With regard to a care allowance, under Union law this is a benefit in the event of illness and not a social welfare benefit, which is why he was entitled to a care allowance as a beneficiary of subsidary protection status in the same way as an Austrian national.

The Respondent argued that a beneficiary of subsidary protection status wasnot entitled to a care allowance as they possess only a temporary right of residence and this group of people had been expressly ruled out of an entitlement in the Federal Care Allowance Act.

Decision & reasoning:

The Labour and Social Court upheld the complaint.

Beneficiaries of subsidary protection status are entitled to a care allowance for the duration of their habitual residence in Austria. The Applicant could base this entitlement directly on the Qualification Directive, as the period for transposition had already expired a long time ago, there was sufficient certainty of the entitlement of the Applicant to be treated on a basis of equality with Austrian nationals and therefore the provision of the Federal Care Allowance Act (§ 3a, Para. 2) in question  was insufficiently implemented. In accordance with Article 28 of the Qualification Directive, Member States are obliged (amongst other things) to grant beneficiaries of subsidiary protection status the “necessary social assistance” in the same way as nationals of the Member State also receive this. This obligation can be limited to core benefits with regard to beneficiaries of subsidiary protection status. In accordance with Article 29 of the Qualification Directive, Member States are in any event obliged to grant beneficiaries of subsidiary protection status “access to health care” under the same conditions as nationals as part of the core benefits. In particular, for beneficiaries of subsidiary protection status with special needs such as persons with disabilities, such equality with nationals is envisaged in regard to “adequate medical care”. According to recital 34, the term “core benefit” in this connection is to be understood as covering at least (amongst other things) support in the event of illness. Case law has already clarified that the Austrian care allowance is a benefit in the event of illness within the meaning of the same under Community law. The Labour and Social Court of Vienna reached a clear conclusion that the care allowance in accordance with the Federal Care Allowance Act is also part of those core benefits to which a beneficiary of subsidiary protection status is entitled anyway to the same extent and under the same conditions as an Austrian national.

Outcome:

The complaint was upheld and it was held that the Respondent was to pay the Applicant a monthly care allowance of € 1,200.00.

Observations/comments:

Explanation of Austrian care allowance: monthly financial payment to cover the increased costs of people requiring care.

The Vienna Upper Regional Court in matters under labour and social law was also of the view in judgment 10, Case 37/13d of 29.07.2013 that beneficiaries of subsidiary protection status are entitled to a care allowance on the basis of the Qualification Directive.

(In a different way from the Vienna Upper Regional Court 26.02.2013, 10 Case 16/13s, these proceedings are still pending at the Supreme Court).

Other sources:

Opinion Greifeneder/Liebhaft, Pflegegeld (Care allowance), 3rd. edition, 2013

Fuchs, Europäisches Sozialrecht (European Social Law), 5th. edition, Art 3 Directive (EU) No. 883/2004