Kostelka: Full nursing care allowances will henceforth be paid to all ’self-funding residents’ of nursing homes

Full nursing care allowances will henceforth be paid to all ’self-funding residents’ of nursing homes

ORF-Series "Bürgeranwalt" (“Advocate for People”) – Broadcast of October 27th, 2007

The case brought in TV by Ombudsman Peter Kostelka dealt with a conflict with the Pension Insurance Institution (PVA). A daughter insisted that the full nursing care allowance to which her deceased mother was entitled should be paid to the heirs.

After an apoplectic stroke, the complainant’s mother had moved to ’Franziskusheim Mistelbach’, a nursing home where she received care for approximately four years before passing away in March 2006. As her old age pension did not cover all the care fees, the Province of Lower Austria as the provider of social security benefit paid the monthly fees. In return, in order to safeguard the repayment of the fees owed, a legal charge was placed on the woman’s property and 80 per cent of her nursing care allowance / level 7 were transferred to the provider of social security benefit. 10 per cent of the nursing care allowance were paid to the complainant’s mother as ’pocket money’. The remaining nursing care allowance of approxi-mately € 260,-- – € 270,-- a month was withheld by the PVA. After four years of nursing home care, the sum withheld by the PVA amounted to € 11.200,--.

The Federal Nursing Care Allowance Act regulates this complex matter. While the full nursing care allowance is paid to persons receiving home care, the law provides for the socalled ’withheld amount of nursing care allowance’ (Pflegegeldruhensbetrag) in case of nursing care. The legislator makes this difference in order to promote personal care at home. The provision stipulating that the nursing care allowance may be (partially) withheld is only applied in cases where the provider of social security benefit contributes to the care fees and thus has a claim to the nursing care allowance.

After the death of the complainant’s mother, the costs borne by the Province as the provider of social security benefit – approximately € 56.000,-- – were reimbursed with funds from the estate of the deceased. Nevertheless, the Pension Insurance Institution refused in a notification dated 21 June 2007 to refund the sum of € 11.200,-- (withheld amount of nursing care allowance).

Dr. Peter Kostelka explained in the show that this was completely wrong. According to the case-law of the Supreme Court of Justice, the moment when somebody pays the care fees is irrelevant for the classification as ’selffunding resident’. It makes no difference whether the cost of accommodation, subsistence and care are financed from a person’s income or reimbursed to the provider of social security benefit at a later point of time. Anybody who pays the full care fees can claim the full nursing care allowance.

As the situation is clearly regulated by the Supreme Court of Justice, the representative of the Pension Insurance Institution promised to change the course of action and transfer the withheld amount to the complainant’s account. Thus, it appears most likely that persons in need of care as well as their heirs will receive fair treatment.

Agreement with farmers

In the broadcast Ombudsman Mr. Kostelka also discussed the unacceptable procedure followed by the State of Burgenland in relation to the acquisition of a real estate property. The State government of Burgenland wanted to build an animal shelter on the complainant’s estate and acquired it for approximately € 31.700,--. In the land conversion process, concerns relating to hydraulic engineering (flood affected area!) and environmental protection arose. After two years of planning, the provincial government changed its mind and requested a reverse transaction according to a little clause in the contract. A lawyer commissioned by the provincial government confronted the farmer with a backpayment request of the purchase price plus interest (a total of around € 34.009,--) within 14 days. The farmer was obviously shocked. He had not had use of the real estate during the 2 years and even had to pay interest ?

After Ombudsman Mr. Kostelka had sternly criticized the State government’s action, the lawyer of the State of Burgenland offered a concession. After several ‘rounds of negotiation’ a compromise was reached. The State agreed to consider the farmer’s loss of crops to the extent of around € 3.700,-- and offered the possibility of reimbursing the amount of € 30.500,-- in three installments until 2010. Despite this agreement Ombudsman Kostelka considers the procedure of the State of Burgenland unacceptable.