Communicated on 21 April 2015

SECOND SECTION

Application no. 8268/15 Józsefné KOVÁCS against Hungary lodged on 12 March 2013

STATEMENT OF FACTS

The applicant, Ms Józsefné Kovács , is a Hungarian national, who was born in 1958 and lives in Szeged. She is represented before the Court by Mr D. Karsai, a lawyer practising in Budapest.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant was placed in disability retirement and received a disability pension from 6 August 2002 until 12 January 2010. At the material time her health status was rated at 33 per cent by the medical expert commission. As of the latter date her entitlement was transformed into rehabilitation benefit in the amount of approximately 80,000 Hungarian forints (HUF) (260 euros (EUR)) per month. Her health status was assessed at 48 per cent, suitable for rehabilitation.

On 29 December 2011 Act no. CXCI of 2011 o n the Benefits Granted to Persons with Reduced Work Capacity was enacted, effective as of 1 January 2012, which introduced a new system of allowances. Beneficiaries were sent a letter and invited to apply, by 31 March 2012, for a reassessment of their condition by expert committees. Once they had applied for this within the time-limit, they became entitled to a transitional allowance (the amount of which did not differ from that of the previously received allowance or pension) until the reassessment took place. In the reassessment procedure, a disability allowance or a rehabilitation allowance could be granted, depending on the person ’ s real and actual condition.

The applicant lodged a request for the new disability allowance. According to a fresh opinion of the expert committee of the National Rehabilitation and Social Authority her health condition was ra ted at 59 per cent and she was classified as a person suitable for rehabilitation.

Since she did not have at least 180 calendar days with income during the calendar year preceding the first day of the payment, or 180 calendar days with income in the period directly preceding the first day of payment, the applicant ’ s rehabilitation allowance was calculated on the basis of the minimum wage (at the material tim e HUF 93,000, approximately EUR 310 per month) and established at 35 per cent of the minimum wage, that is, in the amount of HUF 32,550 (approximately EUR 110) by a decision of the Csongrád County Governmental Authority (Directorate of Pension Insurance) on 15 May 2012.

The applicant appealed against the first-instance administrative decision.

The medical assessment carried out in the course of the second-instance administrative proceedings affirmed that the applicant ’ s status of health was at 59 per cent and her work capacity could be reestablished through ‘ employment rehabilitation ’ . Consequently, the National Rehabilitation and Social Authority, acting as a second-insta nce authority, upheld the first ‑ instance decision on 31 October 2012.

The applicant did not seek judicial review of the decision.

B. Relevant domestic law

The relevant provisions of Act no. LXXXIV of 2007 on Rehabilitation Benefit, in so far as relevant, provide as follows:

Section 3

“(1) Rehabilitation benefit is due to a person who

a) has suffered 50 to 79% loss of his health status and, in connection with that, he cannot be employed without rehabilitation at his current workplace or at the workplace where he has worked before the deterioration of his health or at any other workplace, and

aa ) does not work regularly and

ab ) his salary or income is 30% less than the amount he has earned as an average monthly salary during the fourth months preceding the deterioration of his health and

b ) is suitable for rehabilitation and

c) has accumulated the necessary service time [a function of the age, as outlined in the law] .”

Amount of the rehabilitation benefit Section 4

“(1) The amount of the rehabilitation benefit shall be 120% of the disability pension (category III).”

Act no. CXCI of 2011 on the Benefits Granted to Persons with Reduced Work Capacity, in so far as relevant, provides as follows:

1. General regulations Section 1

“(2) 3 . Average monthly wage : 30 times the daily average of the income constituting the basis for health insurance contributions (hereinafter referred to as “income”) generated in the calendar year preceding the first day of the payment (hereinafter referred to as “reference period”); if the person concerned does not have income acquired during 180 days within the reference period, the average monthly wage shall be 30 times the average daily income generated during the 180 calendar days preceding the first day of payment; if the person concerned does not have income acquired during 180 days within the reference period or within the 180 calendar days preceding the first day of payment, nor does he have any income whatsoever, the average monthly salary shall be the minimum wage.”

2. Allowances for Persons with Reduced Work Capacity Section 2

“(1) A person whose health status has been found to be of 60% or less in the rehabilitation authority ’ s complex reassessment (henceforth: persons with reduced work capacity) and who:

a) has been covered for a minimum 1,095 days by the social security under section 5 of [the Social Security Act] in the five years preceding the submission of the request, and

b) has not been engaged in any money-earning activities and

c) is not receiving any regular cash allowance

shall be eligible for allowances granted to persons with reduced work capacity.

(2) By derogation from subsection (1) (a), persons

a) who became covered by the social security within 180 days from the termination of their schooling and whose social security cover was not interrupted for any period exceeding 30 days before the submission of their request, or

b) who received on 31 December 2011 disability pension, accident disability pension, rehabilitation benefit or social allowance for persons with health impairment

shall be eligible for the benefits granted to persons with reduced work capacity irrespective of the duration of the period covered with social security.

(3) The 1,095-day-long insurance period shall include:

a) periods of sick pay, accident sick pay, pregnancy and confinement benefit, child care benefit and jobseeker benefit;

b) the period of disability pension, accident disability pension, rehabilitation benefit, social allowance for persons with health impairment;

c) the service time accumulated under an agreement concluded under section 34 of [the Social Security Act] with a view to accumulating service time and income that generate pension entitlement; provided that the agreement was concluded by 31 December 2011.”

Section 3

“(1) Subject to the rehabilitation authority ’ s rehabilitation proposal made in the framework of the complex reassessment, the allowance to be granted for a person with reduced work capacity shall be either:

a) rehabilitation allowance, or

b) disability allowance

(2) Within the framework of the complex reassessment procedure, the rehabilitation authority verifies whether

a) the person with reduced work capacity can be rehabilitated, more specifically

aa ) his employability can be restored, or

ab ) he is in constant need of employment rehabilitation;

b) the rehabilitation of the person with reduced work capacity is not recommended, more specifically

ba ) that his employability can be restored through rehabilitation based on his state of health; however, due to other circumstances defined within the scope of the decree on the professional rules for complex rating, his rehabilitation is not recommended;

bc ) he can only be employed if constantly assisted, or

bd ) his health impairment is significant and he is either dependent or independent with assistance.”

Section 4

“Any disabled person that can be rehabilitated shall be eligible for rehabilitation allowance.”

3. Rehabilitation allowance Section 9

“(1) The monthly rate of the rehabilitation allowance shall be equivalent to

a) 35% of the average monthly wage or minimum 30% and maximum 40% of the minimum wage in the case of individuals who can be rehabilitated;

b) 45% of the average monthly wage or minimum 40% and maximum 50% of the minimum wage in the case of individuals in need of constant employment rehabilitation.”

Following an amendment which entered into force as of 1 January 2014, sub-sections (5) and (6) have been added to section 34 of Act no. CXCI of 2011 concerning persons who previously received rehabilitation benefits, providing as follows:

“ (5) If a person who received rehabilitation benefit until 31 December 2011 receives an allowance for persons with reduced work capacity as of 1 January 2014, the basis of the calculation of his allowance shall be 140% of the amount of the rehabilitation allowance he received in the preceding month.

(6) If a person who received rehabilitation benefit until 31 December 2011 receives an allowance for persons with reduced work capacity prior to 1 January 2014, the rehabilitation authority shall ex officio amend until 31 May 2014 the amount of the allowance in accordance with sub-section (5) with effect from 1 January 2014.”

COMPLAINTS

The applicant complains about the significant decrease of the amount which she receives on account of her reduced work capacity. She invokes Article 1 of Protocol No. 1, Articles 6, 8, 13 and 14 of the Convention.

QUESTIONS TO THE PARTIES

1. Have domestic remedies been exhausted in the case in view of the fact that the applicant did not request judicial review of the second-instance administrative decision?

2. How has the amount of the applicant ’ s allowance evolved following the amendment of Act no. CXCI of 2011 on 1 January 2014?

3. Did the applicant have a “possession” in respect of the rehabilitation benefit, for the purposes of Article 1 of Protocol No. 1 ?

4. If so, has there been an interference with the applicant ’ s possessions within the meaning of Article 1 of Protocol No. 1? Did that interference impose an excessive individual burden on the applicant (see Immobiliare Saffi v. Italy, [GC], no. 22774/93, § 59, ECHR 1999-V)?