Communicated on 21 April 2015

SECOND SECTION

Application no. 8271/15 András Jánosné LENGYEL against Hungary lodged on 12 March 2013

STATEMENT OF FACTS

The applicant, Ms András Jánosné Lengyel , is a Hungarian national, who was born in 1960 and lives in Budapest. 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 1 November 2006, the amount of which was eventually 91,363 Hungarian forints (HUF) (approximately 300 euros (EUR)) per month. As it appears from the case-file, the applicant ’ s entitlement was based on a final decision of the Supreme Court. At the material time her health status was rated at 46 per cent by the medical expert commission.

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 status was ra ted at 59 per cent. She was categorised as a person suitable for rehabilitation on the basis of her health status. However, due to other circumstances, her rehabilitation was not recommended (section 3 (2) point ba ) of Act no. CXCI of 2011).

Since she had not had 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 45 per cent of the minimum wage (in application of section 12 (1) point a) of Act no. CXCI of 2011), that is, in the amount of HUF 41,850 (approximately EUR 140) by a decision of the Budapest Governmental Authority (Directorate of Pension Insurance) on 19 September 2012.

The applicant appealed against the first-instance administrative decision.

The medical assessment carried out in the course of the second-instance administrative proceedings resulted in the finding that the applicant ’ s health status was at 58 per cent, and it was reaffirmed that her rehabilitation was not recommended. Since the difference in the health status did not alter the calculation of the amount of her allowance, the National Rehabilitation and Social Authority, acting as a second-insta nce authority, upheld the first ‑ instance decision on 17 January 2013.

The applicant did not seek judicial review of the decision.

B. Relevant domestic law

The relevant provisions of Act no. LXXXI of 1997 on Social Security Pension as in force until 31 December 2011, provided:

Section 4 (1) c)

“[Under the terms of this law] disability pension [means]: pension to be disbursed in case of disability, on condition that the requisite service time has been accumulated.”

Section 23 (1)

“Disability pension is due to a person who:

(a) has suffered 67 per cent loss of capacity to work due to health problems, physical or mental impairments, without any perspective of amelioration during the following year... [ and ]

(b) has accumulated the necessary service time [a function of the age, as outlined in the law] [and]

(c) does not work regularly or earns considerably less than before having become disabled.”

Concerning disability pensions to be granted after 31 December 2007, the same Act, as in force between 12 March and 31 December 2011, provided as follows:

Section 36/A

“(1) Disability pension shall be due to a person who:

a) suffered [at least 79 per cent loss of capacity to work, or the same between 50 and 79 per cent if rehabilitation is not feasible], and

b) accumulated the service time required in respect of his age, and

c) [ does not have an income or earns considerably less than before], and

d) does not receive sick pay or disability sick pay.”

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. 2 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.”

Section 5

“(1) Any person with reduced work capacity whose rehabilitation is not recommended shall be eligible for disability allowance.

(2) A person with reduced work capacity shall also be eligible for disability allowance if

a) his employability can be restored through rehabilitation, or

b) he is in constant need of employment rehabilitation

and the period remaining for reaching the old age pension age threshold does not exceed 5 years when the application was submitted or on the date of review.”

4. Disability allowance Section 12

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

a) 40% of the average monthly wage or minimum 30% and maximum 45% of the minimum wage in the case defined in section 3 (2) point b) sub-point ba ) and section 5 (2) point a);

b) 60% of the average monthly wage or minimum 45% and maximum 150% of the minimum wage in the case defined in section 3 (2) point b) sub-pint bb) and section 5 (2) point b);

c) 65% of the average monthly wage or minimum 50% and maximum 150% of the minimum wage in the case defined in section 3 (2) point b) subpoint bc );

d) 70% of the average monthly wage or minimum 55% and maximum 150% of the minimum wage in the case defined in section 3 (2) point b) sub-point bd ).”

COMPLAINT

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 seek judicial review of the final administrative decision?

2. Did the applicant have a “possession” in respect of the disability pension, for the purposes of Article 1 of Protocol No. 1 ?

3. 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)?