Brinek/Kostelka: No Orphan-Pension for Mentally Handicapped?

No Orphan-Pension for Mentally Handicapped?

ORF-Series "Bürgeranwalt" (“Advocate for People”) – Broadcast of Januray 10th 2009

The Austrian broadcast „Bürgeranwalt“ from January 10th 2009 showed the case of a mentally handicapped woman from St. Poelten/Lower Austria, who battles with the help of her procurator for the award of a orphan pension.

36 years old Ms. S. is mentally hancicapped since her childhood and lives in a run down house in the outscirts of St. Poelten. Since the death of her parents and her brother she stays there on her own. Due to her dramatic life circumstances – divorce of her parents, procurated mother, handicapped half brother – nobody took care of the woman, who earned the last three years some money with the cleaning of a supermarket parking (€ 240,00,- per month). Only after a colleague of this supermarket began to take care of the lady and even asked for her procurement, the situation of Ms. S. started to get better. The new procurator found a place for her in a day care for handicapped people, applied for social welfare as part of raised family allowance and started to refurbish two rooms of the run down house with the help of friends. Since then at least two rooms can be regarded as habitable. Ms. S. has already been declared permanently incapable to earn her own income in an expertise of the Federal Social Authority. In order to guarantee Ms´s. S. basic supply, an orphan pension has been applied at the Austrian Federal Railways (OeBB)- the former employee of Ms. S. father - and immediately been rejected without a medical examination and a detailed check of her particular life circumstances.

In the decision the Authority stated, that Ms. S had shown her capacity to earn her income by working as a cleaner of a supermarket parking. After the engagement of the Ombudsman the OeBB now intends to prepare another examination of Ms. S. in-capacity to work meaning a “professional documentary expertise“.

Ombudswoman Gertrude Brinek - acting for Ombudsman Kostelka in the broadcast - reacted indignantly: “Ms. S has not at any time of her life been able to earn her own income. Her entitlement to an orphan’s pension due to her inability to earn her own income before her 18th birthday actually exists since 1994 and I therefore ask the Au-thorities for a quick and positive decision guaranteeing her a life in human dignity for the future”.

Part of such a pension would also be the award of an own e-card and a personal health insurance for Ms. S. In this context the Ombudsman renews its claim to the Austrian Parliament to allow a backdated breach of the application-principle in case of denial of social welfare by the Social Welfare Authority only due to the unintentional missing of the application-deadline, although all conditions of entitlement had been fulfilled.

Enquired: Denial of widow-pension despite of longtime marriage- Solution

In the case of a lady, who had no entitlement to a widow pension, a positive turn took place in the meantime. Ms. H. was married for 21 years to a 42 years older doctor. The Upper Austrian Act for Communal Sanitary Sevice did not provide the award of a widow pension in case of such a clear age difference. Ombudsman Dr. Kostelka pointed out the contrariety of this Act to guiding principles of the Austrian Constitution and was followed in his opinion by the Upper Austrian Parliament. Hence forward a marriage of at least 10 years will compensate any age difference. The amendment of the act will enter into force backdated and therefore also enable Ms. H to receive a widow pension.