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Constitutional Court cancels unlawful orphan's pension regulation of the Lower Austrian Medical Association

About a year ago, the Austrian Ombudsman Board drew the attention of the Lower Austrian Medical Association to an unlawful orphan's pension scheme of its welfare fund. "However, the Medical Association ignored the Ombudsman's criticism. We therefore challenged the statutes at the Constitutional Court and have now been proved right," says Ombudsman Bernhard Achitz. Franz H., who had originally turned to the Ombudsman Board, can now receive the half-orphan's pension until his 27th birthday. But not retroactively. Achitz is calling for a goodwill solution: "We pointed out to the Medical Association that the regulation is unlawful. So it would only be fair if it paid Franz H. retroactive compensation in the amount of the orphan's pension."

The Medical Practitioners Act stipulates that the children of deceased doctors receive an orphan's pension until their 27th birthday if they are full-time students. However, the Medical Association of Lower Austria did not adhere to this legal regulation, criticised Ombudsman Bernhard Achitz in the ORF programme "Bürgeranwalt" on 19 May 2024. In the statutes of its welfare fund, it linked the orphan's pension to the receipt of family allowance, which ends at the age of 25 at the latest.

Regulation must not contradict the law

"But that's not how it works. The Medical Association may, for example, specify details of the payment or set a higher pension in the statutes. But what it may not do is reduce the statutory entitlement," explained Achitz: "The statutes are a regulation, and a regulation may not contradict the law, but only specify it."

At the time, Ombudsman Achitz demanded that the Medical Association correct its legal error and amend the statutes accordingly. Otherwise, he announced that he would take the matter to the Constitutional Court (VfGH). The Constitutional Court followed the legal opinion of the Ombudsman Board and cancelled the wording "proves receipt of family allowance in accordance with the Family Burdens Equalisation Act 1967, Federal Law Gazette No. 376/1967 and" in § 32 Para. 2 of the statutes of the Welfare Fund of the Medical Association of Lower Austria. "This decision by the Constitutional Court is extremely pleasing and shows the completely wrong legal opinion of the Medical Association for Lower Austria," said Achitz.

Achitz demands retrospective compensation for Franz H.

Franz H.'s application for an orphan's pension was rejected and he appealed against it. However, authorities and courts are bound by the old regulation until the legal basis is cancelled. As the court did not appeal to the Constitutional Court itself, Franz H. does not benefit from the "seizure bonus". The Ombudsman Board has advised him to submit a new application immediately so that he can receive the orphan's pension again, at least from this point onwards. However, Achitz is demanding that the Medical Association compensate H. as a gesture of goodwill - after all, he did not receive an orphan's pension for nine months due to an unlawful clause.

Translation was AI-generated

Young man with blond curls sits on a wooden staircase in a grey tracksuit with his head in his hands Ombudsman's office has challenged the statutes and is demanding a goodwill solution for a 25-year-old's lost pension. Picture credits: Tung Lam / Pixabay