Kostelka: No payment for a wheelchair for children?

The 4 ½ year-old Lina was the focus of a dispute with the Vorarlberg health insurance company (VGKK). Because of a blood group incompatibility between mother and child, Lina suffered a lack of oxygen and was born with a disability. After six months, doctors diagnosed cerebral palsy: massive movement disorders due to neonatal brain injury. Lina has little trunk control, and is also hearing impaired from birth. In addition, she must wear a surgical corset. Despite all the difficulties the girl grew very well, and since she is using a cochlear implant, is able to hear speech. To transport the baby, VKGG funded a rehabilitation stroller in 2008. It is designed for Lina’s special needs and has a headrest, footrest, thoracic, chest and shoulder pad, therapy tables, etc.

Since fall 2010, Lina attends the kindergarten in a centre for hearing impaired in Dornbirn. This kindergarten is barrier free and wheelchair accessible. To give Lina the limited possibility to move independently, her pediatrician, Dr. Tscharre, prescribed a mechanical wheelchair for the first time on 1 July 2010 and then again on 22 October 2010. He tried to explain to VGKK why this mechanical wheelchair would be important to the child. But VGKK has rejected to meet the costs for the family three times – in letters dating 13 September 2010, 12 November 2010, 7 December 2010; each refused the application on the grounds that the wheel chair would be a second supply. The wheelchair for children recommended by the specialist could only be granted if the rehabilitation stroller is too small for her or if it is given back because she does no longer need it. But this is not the case. The rehabilitation buggy is still needed. Lina can only use the mechanical wheelchair at times but not to operate it all day long. Finally, the family bought the wheelchair entirely from private funds to facilitate the integration of Lina in the kindergarten from the start. 

According to VGKK, the medical documentation does not conclusively show that Lina has enough strength and coordination skills in her arms to move a wheelchair without the help of another person. At the end of December 2010, they had offered to the Austrian Ombudsman Board that the parents could submit a new medical certificate and meet with the senior medical service to resolve the contentious issue. 

In the studio, the mother reported that she had received an appointment with Lina and her wheelchair in the course of the shootings of “Bürgeranwalt”. The application for the grant was immediately approved. The parents are still dissappinted about the non-functioning communication. Prior to the intervention of the Austrian Ombudsman Board, they had tried everything to clear up the situation. Only with the help of the AOB and the TV show, they were successful, although the VGKK could have checked months ahead that Lina herself is able to get around in a wheelchair.

“I am pleased that we could contribute to the solution of this problem and hope that in the future, authorities will control and communicate better”, said Ombudsman Kostelka.

Refund of standard consumption tax (NOVA) for demonstration cars

Persons with a disability had the opportunity to have the NOVA refunded when purchasing a new car until the end of 2010 – theoretically. But the application of Mr. N.N. was rejected.

Mr. N.N. injured his neck thirteen years ago when doing wood work. Days later he suddenly collapsed with a stroke - the accident had caused a closure in the carotid artery. He was paralyzed on one side and several months in hospital until he got better during rehabilitation. Now he is able to move again, but he cannot work due to a 70% loss of earning capacity.

Last summer, Mr. N.N. purchased a new car for € 35.500 Euro with self-winding and steering wheel stick to drive short distances himself, especially ways to the doctor.

His request for reimbursement of an amount of € 2,000 on a pro-rata basis was rejected - the tax is not reported separately on the bill, they explained to him. Mr. N.N. contacted a lawyer, who corresponded with the Federal Social Welfare Office and said that the remedy was exhausted. Mr. N.N. therefore turned to the Austrian Ombudsman Board and complained about the injustice.

In the studio, the director of the Federal Social Welfare Office of Upper Austria was switched on. Despite an audible laryngitis, she was prepared for the discussion. Mr. N.N. had purchased a demonstration car in a car dealership that recently bought the car at a major importer. Hyundai has sold the car to the dealership and the sales person is liable for taxation, he must pay the NOVA – which can only be declared once. This would be the reason why Mr. N.N. cannot get reimbursed. The NOVA has already been paid - the intermediate stage causes the problem. Mr. N.N. can only wait for the outcome of the proceedings at the appointments committee. There are not very many cases like this one, a solution would be possible with the hardship clause, said the director.

Ombudsman Dr. Peter Kostelka did not agree with her: "Every general distributor is exempted from taxation for six months in the case of demonstration cars. The general distributor registered the car at the competent tax authority as soon as the six months were almost over. Therefore, he reported the vehicle at the competent tax office as soon as this period was coming to an end. Still within the 6-months period the local car dealership acquired the car to immediately sell it to Mr. N.N. At the time of the second sale, the car was legally a demonstration car. The NOVA was paid to the competent tax office just because of the already made announcement. Cost-burdened with the payment is finally only Mr.N.N and none of the participating companies. Therefore, he should be reimbursed. "

Even the dealership confirmed in a letter that the NOVA and value-added tax were included in the purchase price. This is also stated clearly in the sales contract, but the bill was not reported separately because the NOVA had already been discharged from the major importer and a new declaration would mean double taxation.

Ombudsman Kostelka: "This is unfair. Mr. N.N. was charged with the NOVA, so he has to be reimbursed - everything neither complies with the law nor would it be fair. If other persons are affected, they should contact the ombudsman. "

Under the Tax Reform Act, the reimbursement of the NOVA was abolished starting from 1 January 2011, for pending cases before that date, the old law is still valid and those affected can contact the Ombudsman.