Kostelka: Vocational disability pension

She suffers from ankylosing spondylitis and regularly stays in Bad Gastein to relieve her pain at the local galleries. The stiffening of the spine and joints can only be delayed. Medication, diet and constant exercise training help her to keep the remaining mobility as long as possible.

In the previous year, Ms N.N. had to spend 66 days in the hospital due to flare-ups. Even afterwards she was unable to move alone and had to be in a wheelchair for ten weeks. She has given up her work as an accountant ten years ago since the long sitting was no longer medically reasonable. In 2002, Ms N.N. applied for a disability pension at the PVA (the public pension scheme). PVA refused, however. Since March 2003, a trial before the Labour and Social Court is pending.

The court process is now pending for seven years, numerous reports have been prepared and discussed. An end of the process is still not in sight. Twice, PVA offered a comparison and would have been willing to pay a vocational disability pension starting in August 2005. Ms N.N. rejected this because she felt that the symptoms of the disability had started much earlier.

Her proposal to reach a settlement was ignored by the PVA. In 2009, PVA offered a pension starting from the application date, but withdrew it shortly afterwards. The insurance carrier has subsequently appealed successfully against a verdict that Ms N.N. had been granted by the Labour and Social Court starting in 2002.

Since then, again hearings have been held before the Labour and Social Court. All expert opinions confirm Ms N.N.’s incapacity to work. Because of the inflammatory fingers, typing is impossible since she would need many breaks. With this kind of illness, there will be no cure - it can only be delayed and improved through treatment.

In the studio, a representative of PVA said that the insurance carrier relies on the opinions of medical experts.

Dr. Peter Kostelka criticized the approach of PVA. "It is clear that the expert could confirm her incapacity to work earlier than in 2005, not to mention that she could work in any other profession. The only thing that remains open is the exact date of this entitlement. Therefore, it is equal to a procedural delay that Ms N.N. has to bring numerous reports again and again and justify herself why she is able to open a can with an electronic can opener but cannot use a keyboard. The court is analyzing circumstances that are not relevant for her date of the entitlement. This should also be noticed by the changing representatives of PVA."

The representative of the PVA explained that all staff would be encouraged to act properly in court. Under no circumstances should suitors be harassed. However, the PVA must also examine court opinions on their consistency and could only make its decision for reaching a settlement on the basis of secure expert opinions. "If the quality of legal advice does not allow a decision, proceedings should be continued. The objections of Ms N.N. will be examined again”, said the representative of the PVA.

Ombudsman Dr. Peter Kostelka pointed out that he hoped for a settlement of this case with the PVA. “Such long proceedings to solve a relatively simple question of law are not reasonable.”

Re-examination: Personal assistance for disabled persons

The law for equal opportunities entitles disabled people to personal assistance. However, a 26-year-old suffering from spastic paralysis does not receive the personal assistance needed to live independently from his family.

The young man lives in Upper-Austria with his parents. He is 80 % paralysed and finished his apprenticeship as an office administrator in December 2009. Since January 2010, he works as a secretary in Linz, the capital of Upper Austria. His father quit his job to be able to take his son to work and pick him up afterwards – all together, this means four hours driving every day. Since the family has to care for the 90-years-old grandfather and two children of minor age, the 26-year-old wants to help his family and wants to move to Linz. Therefore, he needs personal assistance – but due to budgetary reasons, his application was rejected by the authorities.

A representative of the Upper Austrian Government explained that the authorities had to conduct home visits to determine whether personal assistance is really needed. This procedure had been rejected by the father when he heard that no assistance will be possible.

The home visit had now taken place. A reservation for the personal assistant with the greatest possible amount of hours had subsequently also been suggested, but the waiting list is long. The young disabled person has been ranked place 13 for personal assistance and place 3 for mobile services and assistance. First, resources have to become available so that people can move up. The situation of the disabled person's family unfortunately will not change for now.

Dr. Peter Kostelka: “There is a lack in the social budget of 10 million euros. As long as these resources are not invested, no new cases will be taken. We will contact all members of the Upper Austrian parliament to make them aware that more disabled people are already lined up on the waiting list for the personal assistance than are now in care. This is about existential needs and I hope that this will be seen when it comes to future budget planning.”