Pursuant to Article 69 of the European Code of Social Security, “every claimant shall have a right of appeal in case of refusal of the benefit or complaint as to its quality or quantity”.
Despite the apparent willingness of the drafters of the Code to grant a general right to complain or appeal, the Code fails to precisely determine which authorities have the competence to hear social security claims.
Moreover, Article 69 does not seem to distinguish between administrative complaints on the one hand (that is, an action taken at the administrative level by a citizen who is unsatisfied by the original decision taken by the social security agency, and appeals (which represent a legal action brought before the courts to challenge a decision taken by a social security agency). Yet, the distinction between the two is crucial.
In Switzerland, a clear distinction has been made between complaints and appeals, as set out in the General Law on Social Insurance (LPGA),6 the Law governing social insurance matters, which entered into force in 2003 and introduced the most important procedural rules with regard to social security claims in Articles 27-62 LPGA.
Pursuant to Article 52 LPGA, if a claimant wishes to raise an objection against an administrative decision relating to his or her social security benefits, he or she must first go through an internal administrative procedure, which is free of charge7 and during which the social security agency shall review the disputed decision that it has taken.8 If, by the end of the administrative review, the claimant is dissatisfied with the decision taken, he or she can initiate judicial proceedings before the lower court, the
“tribunal cantonal des assurances.” The appeal must be presented within 30 days of the notification of the administrative decision.9 If the decision of the lower court still
6 General Law on Social Insurance (Loi fédérale sur la partie générale du droit des assurances sociales (LPGA).
7 Pursuant to Art. 45 LPGA, the costs of processing are borne by the authority, which took the original contested measures.
8 It should nevertheless be noted that with regards to old-age, survivors and invalidity benefits, the claimant does not go through an internal administrative procedure but rather he or she is required to bring an action before the District Court of Insurance (tribunal cantonal des assurances), pursuant to Art. 73 of the Federal Law on Old-Age, Survivors’ and Invalidity Benefits Scheme, Loi Prévoyance Professionnelle vieillesse, survivants et invalidité (LPP).
9 Article 56-61 LPGA.
does not bring satisfaction, the claimant can further appeal before the Federal Supreme Court of Justice, Switzerland’s highest court.10
The following part shall examine the various procedures through which claimants can present a complaint in the different countries which have ratified the European Code of Social Security.
1. Complaints procedures
Like in Switzerland, many of the other countries studied require claimants to first present a claim before the social security authorities before later challenging that same decision before the courts. This is the case in Italy,11 France,12 Spain,13 and the Netherlands,14 for example, all of which adopt this administrative review as a prerequisite for further judicial action.
The efficiency of this system (which obliges claimants to first address administrative bodies) has been questioned on the basis that it represents an unnecessary additional hurdle prior to appearance before a judge, perceived as the only truly impartial authority.15 However, the establishment of such a review system by the administrative authorities is a positive development. In fact, complaints at the administrative level entail less complex and less expensive proceedings for individuals. Moreover, by confronting the claims of their citizens, administrative authorities can improve their work and the quality of their services.
One of the main advantages of the administrative complaint procedure is related to its absence of costs. Indeed, bringing a complaint before the competent administrative body is free in most countries.16 This represents a key aspect of access to justice for individuals, even more so in the case of social security recipients, who are susceptible to encounter financial difficulties and not be able to afford judicial costs.
10 Article 62 LPGA.
11 Art. 442 para. 1 and Art. 443 of the Italian Code of Civil Procedure (Codice di Procedura Civile).
12 Art. R.142-1 ff of the French Code of Social Security (Code de la sécurité sociale).
13 Art. 71.1 and 139 of the Spanish Labour Procedural Law (LPL) (Ley reguladora de la jurisdicción social).
14 Art. 7:1 of the Dutch General Act on Administrative Law (Algemene wet bestuursrecht).
15 BELORGEY, p. 275.
16 See e.g. Art. 3 of the Belgian Charter for Social Security Beneficiaries; Art. 7:15 of the Dutch General Administrative Act (Algemene wet bestuursrecht).
16 BELORGEY, p. 275.; Art. 142-1ff of the French Social Security Code (Code de la sécurité sociale).
In some countries, a broader range of persons than the recipient alone can challenge a social security decision. In fact, in countries like France,17 Spain,18 and Germany,19 for example, some third parties (more specifically, the claimant’s close family members, such as spouses or children) can present a claim for social security benefits in the name of their spouse/parent entitled by the law to those benefits.
The establishment of administrative bodies competent to review the decisions of social security agencies reflects the willingness of states to avoid litigation.20 In fact, the nomination of administrative bodies as the competent authorities in the first place is a way for countries to establish a threshold limiting the number of claims presented before their courts in order to reduce their workload. Claimants are in fact encouraged to start court proceedings only as a last resort. Therefore, administrative complaint procedures represent what could be described as a method of alternative dispute resolution.
2. Authorities competent to hear complaints procedures
Individuals can present their claims before the administrative authorities competent to review the challenge in the countries examined in different ways.
Some countries, such as Belgium21 or Switzerland,22 only require that the review be conducted by the same administrative authority, which took the original decision. The authority shall hence retake its decision, either upholding or modifying the initial decision.
The German system, on the other hand, adopts what is called the “Abhilfgeprüfung”, according to which the original official (called “Ausgangsbehörde”) who took the contested decision is required to reconsider his or her decision before an official complaint is forwarded to a further authority (called the “Widerspruchsbehörde”).
Therefore, in Germany, if the original decision-maker (“Ausgangsbehörde”) decides to change his or her decision, no procedure will then be presented before the
“Widerspruchsbehörde.” However, if the “Ausgangsbehörde” chooses to uphold the decision which he or she took the first time around, then the
“Widerspruchsbehörde”23 will hear the complaint.
17 Art. R 142-20 of the French Social Security Code (Code de la sécurité sociale).
18 Art. 32 of the Legal Regime of Public Administrations and the Common Administrative Procedure (LRJPAC) (Ley de Régimen Jurídico de las Administraciones Públicas y del Procedimiento Administrativo Común).
19 Sections 78 and 83 of the German Social Courts Act (Sozialgerichtsgesetz).
20 Lord Woolf, Access to Justice, Final Report, <http://www.dca.gov.uk/civil/final/overview.htm>.
21 Art. 3 of the Belgian Charter for Social Security Beneficiaries (Charte de l’Assuré Social).
22 Art. 34 ff. LPGA.
23 Art. 73 of the Administrative Procedure Code (Verwaltungsgerichtsordunung, VwGO).
Administrative reviews of this kind are questionable from the point of view of independence and impartiality of justice since the body which reconsiders the claim is always part of the same administrative authority that has taken the original decision, so there is no clear organisational independence. On the other hand, it is arguably worthwhile to give the original decision-making body, which is the first party concerned and the best informed of any, the opportunity to reconsider its original decision. An idea which might mitigate the perception of bias that the intervention of the original decision-maker can create would be to set up collegiate bodies competent to hear these administrative claims, and which would be notably composed of lay-members coming from spheres other than the original decision-making organisation, therefore guaranteeing a fully independent and neutral review of the law and facts.
Another way to reduce any criticism against the bias of the original decision-maker is to designate a hierarchically-superior authority to be in charge of claims. In Estonia, the complaint must be presented to the administrative authority which exercises supervisory control over the administrative authority which issued the decision in question.24 In some countries, this authority can even be an agency of the Ministry of Health or Social Affairs, as in Slovenia25 and Cyprus.26 The involvement of a ministerial authority may indeed be a good idea as it allows the Ministry to be directly informed of any potential misapplication of administrative rules and to intervene and exercise a closer control over the work of its agencies. Moreover, bringing a case before a hierarchically-superior agency is a guarantee of the neutrality of the competent officers as it has not reviewed the case before.
Finally, several countries have established specific boards of reviews, specialised in dealing with claims such as in Ireland,27 Luxembourg,28 and Norway.29 These boards generally follow specifically drawn-up procedural rules and operate similarly to courts or tribunals. By virtue of its order and clear structure, this system of organisation also represents a strong guarantee of independence from the original decision-maker.
24 Pursuant to Art. 73(1) of the Estonian Administrative Procedure Act (Haldusmenetluse seadus).
25 The Ministry of Labour, Family and Social Affairs is competent to review claims relating to parental care insurance benefits (Article 89 of the Social Security Act (Zakon o socialni varnosti) and unemployment benefits (Art. 1360(6) of the Slovenian General Administrative Procedure Act (Zakon o splosnem upravnem postopku).
26 Pursuant to Art. 83 of the Cyprian Social Insurance Act, the claim can be presented to the Minister of Labour and Social Insurance.
27 Part 10 of the Social Welfare Consolidation Act 2005.
28 Art. 1 of the Grand-Ducal Regulation of 24th December 1993 (Règlement grand-ducal du 24 décembre 1993 déterminant en application de l’article 294 du code des assurances sociales la procédure à suivre devant le conseil arbitral et le conseil supérieur des assurances sociales, ainsi que les délais et frais de justice).
29 See the Labour and Welfare Administration Act of 16th June 2006 which gives competence to the internal appeals offices of the labour and welfare authorities.
3. The processing of complaints procedures
Administrative processing typically begins when a claimant files an application. The deadlines to submit a claim depend on the kind of benefits at stake. Deadlines can run from 15 days (as in Cyprus30 and Slovenia31) to three months (as in the Netherlands32 and Portugal33).
The formalities necessary to submit a claim vary depending on the country but in general very little is expected of the claimant.34 This is part of the
“Klägerfreundlichkeit” (that is, “claimant friendliness” in German, meaning that as the weaker party, he or she benefits from a certain freedom of form when bringing a complaint). Paragraph 2(2) of the German Social Insurance Code (Sozialgesetzbuch, SGB) even provides that social security institutions must interpret the law in favour of the citizen.
If a claim is addressed to the wrong service, some legal orders provide that the claim shall not be rejected but shall instead be forwarded to the competent body, as in the Netherlands,35 or that the authority is required to correct the claimant, as in Sweden36 or in Slovenia.37 In Switzerland, the General Law on Social Insurance (LPGA) also follows this principle of “Klägerfreundlichkeit”. Here again, if a claim has been addressed to the wrong administrative agency, this authority has the obligation to forward any request that has reached them to the correct office.38
Usually, the claimant needs to fill in a form or write a letter stating basic information about himself and explaining the reasons for his or her claim. This is also a strong indicator of the willingness to render the application process as easy as possible for claimants. Several legislations, such as in the United Kingdom39 or in the Netherlands,40 recommend claimants to phone the social security agency before they submit their claims, so that they can discuss and receive further explanations into the
30 Art. 83 of the Social Insurance Act.
31 Art. 130(6) of the General Administrative Procedure Act (Zakon o splosnem upravnem postopku).
32 Art. 3:40 ff of the General Act on Administrative Law 1994 (Algemene wet bestuursrecht).
33 Art. 58 of the Procedural Code for Administrative Courts (Código de Processo nos Tribunais Administrativos).
34 In Ireland, for example, the relevant authorities are required to handle proceedings in an informal way (Art. 18(3) of the Social Welfare Regulations Act).
35 Art. 6:15 of the General Act on Administrative Law (Algemene wet bestuursrecht).
36 Section 4 of the Code of Administrative Justice.
37 Art. 67 of the General Administrative Procedure Act (Zakon o splosnem upravnem postopku ) (2006) provides that in case of incomplete applications the agency must grant three days to the applicant to correct his or her application.
38 Art. 30 LPGA.
39 For example, in the Employment and Support Allowance (Repeat Assessments and Pending Appeals Awards) (Amendment) Regulations 2015.
40 Art. 6.7 of the Dutch General Administrative Law Act (Algemene wet bestuursrecht).
reasons behind the decision which they disagree with. Steps taken to enable initial contact with agencies by telephone reflect the awareness of authorities about the problems that many claimants may encounter when confronted with the filing of administrative documents. This is notably a service that Swiss authorities might consider introducing.
In Italy,41 all complaints must be submitted online to the National Institute for Social Security. The use of the Internet is certainly a means to reduce application time and to facilitate the process for many social security recipients (especially for younger generations). However, this is also impractical for senior citizens who are not used to filling in forms online and for whom the compulsory registration of their complaint online may represent an obstacle and discourage them from taking further action.
After this primary overview of the administrative complaints systems applied in the European states that have ratified the European Code of Social Security, the second part of this contribution shall shift the focus onto the various actors that have been designated as competent to deal with social security claims.