Legal summary

February 2023

Berisha v. Switzerland (dec.) - 4723/13

Decision 24.1.2023 [Section III]

Article 14

Discrimination

Upper limit imposed on reimbursement of home-care expenses for disabled person living with his parents (not applicable to persons in residential care): inadmissible; Article 14 not applicable

Article 8

Article 8-1

Respect for family life

Respect for private life

Facts – The applicant, who has had a severe disability since birth, lives with his elderly parents and receives a full disability benefit and a severe disability allowance.

In November 2010 the cantonal Compensation Office informed the applicant that the amounts he had claimed for the year 2010 exceeded the annual limit for reimbursement of illness and disability‑related expenses, set at 90,000 Swiss francs (CHF). The remaining costs totalling CHF 1,146 were to be borne by the applicant. He was also informed that he could not claim reimbursement by the Compensation Office of any further expenditure incurred during the remainder of the year in question.

The applicant appealed unsuccessfully against that decision.

Relying on Article 8 of the Convention, the applicant complained before the Court that the financial impact of the upper limit on reimbursement of illness and disability-related expenses for home care was such that he could be forced to move into a specialist residential facility. Noting that this upper limit did not apply to persons in residential care, he also alleged that he had been discriminated against, relying on Article 14 read in conjunction with Article 8.

Law – Article 14 read in conjunction with Article 8:

(1) Family life – In the recent case of Beeler v. Switzerland [GC], the Grand Chamber of the Court had clarified the principles governing the question whether and to what extent social welfare benefits came within the ambit of “family life” within the meaning of Article 8, thus bringing Article 14 into play.

In the present case the Court therefore had to examine whether the benefit in question, in the form of the statutory reimbursement of illness and disability-related expenses, sought to promote family life and necessarily affected the way in which it was organised. The Court had to take into account the full range of factors that were relevant for determining the nature of the benefit in question.

With regard to the aim pursued by the authorities in paying the benefits in question, and the eligibility criteria, it was clear from the relevant legislation that they were “intended to meet the basic needs” of persons with a disability. Persons whose private address and place of habitual residence were in Switzerland were eligible, provided that they were entitled to a pension or disability living allowance under the sickness insurance scheme or had been receiving a daily allowance from the scheme on a continuous basis for at least six months. It was clear from these provisions that the payment of the additional benefits did not seek to promote the applicant’s family life, nor did it presuppose the existence of such family life.

As to the calculation of the benefits in issue, the minimum amounts to be paid by the cantons were laid down by Federal law. In the present case the relevant canton had opted to limit the reimbursement of illness and disability-related expenses in line with those minimum amounts. In the case of the applicant, who was living at home, the upper limit was set at CHF 90,000 annually, whereas, had he been living in a specialist facility or a hospital, the limit would not have applied. This difference in treatment confirmed the fact that the additional benefits in question were not aimed primarily at promoting family life. In that regard they differed significantly from the care allowance introduced in January 2012 to enable persons in receipt of a disability living allowance who lived or wished to live at home and who needed assistance on a regular basis to employ someone for that purpose.

As to the actual repercussions of the limiting of the benefits on the applicant’s family life, the applicant was living with his father and mother – aged 81 and 78 respectively at the time of his appeal to the Federal Supreme Court – who had provided a significant proportion of his care until his father’s advanced age made this no longer possible. A substantial part of the applicant’s care also appeared to have been provided by his sister. Thus it could not be ruled out that the payment of the additional benefits had had some impact on the applicant’s family life, in so far as it had enabled him to be cared for at home by his family.

However, as the applicant had always lived at home he had never been obliged to move into a specialist residential facility or a hospital. Accordingly, the costs he had to bear had not been so high as to force him to leave his home. Thus, the upper limit set on the additional benefits had not negatively affected the applicant’s family life in practice. Furthermore, the applicant had been awarded a number of substantial benefits, including a care allowance, following the contested judgment of the Federal Supreme Court, with the aim of helping him to live more independently and remain in his own home.

In view of all the above considerations – that is, taking account of the aim of the benefit in question as provided for by the legislation, the criteria for awarding it, the lawfulness of the upper limit applied and its limited practical repercussions on the applicant’s family life – the benefit in question did not seek to promote family life and did not necessarily affect the way in which it was organised. The facts of the case did not come within the ambit of “family life” within the meaning of Article 8 and, accordingly, Article 14 was not applicable to the present case from that standpoint.

(2) Private life – The wish of persons with a severe disability, like the applicant, to be cared for at home by their family could in principle come within the scope of their right to respect for private life, especially from the standpoint of personal development and autonomy. Nevertheless, it was also necessary to take the applicant’s specific situation into account in determining whether his “private life” had come into play at the relevant time, as the Court had done in examining the “family life” aspect of Article 8 in Beeler . The applicant had not demonstrated that the setting of an upper limit on reimbursement of the expenses related to his care needs had actually prevented him in practice from fulfilling that wish, as he had not been forced at any time to move into residential care as a result of the upper limit imposed. While the Court did not dispute the difficulties experienced by the applicant, they were of a purely financial nature, an aspect that was not as such encompassed in the right to respect for private life.

Thus, the facts of the case did not fall within the scope of “private life” and Article 14 was therefore not applicable to the case from that standpoint.

Conclusion : inadmissible (incompatible ratione materiae ).

(See also Beeler v. Switzerland [GC], 78630/12, 11 October 2022, Legal summary )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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