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What should you do if you disagree with the care allowance awarded?

For example, the elderly who are disabled, people who have had injuries or complicated operations, and people who are dependent on the help of another person because of their health. The amount of the allowance varies according to the degree of dependence. But what if you see the level of dependency differently from the official who decides the case? How can you defend yourself?

Amputace nohy při diabetes. Nárok na příspěvek na péči
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Mrs. Klara takes care of her father, who is 86 years old. He suffers from a serious form of diabetes and had to have his leg amputated. Dad is basically permanently bedridden. A rehabilitation nurse comes to visit him, and with the help of relatives he moves longer distances with a mechanical wheelchair, taking a few steps around the bed with the support of an adult and a French cane. He also needs help from his daughter or other relatives for basic hygiene, meal preparation and other routine activities. The prognosis for her health is uncertain. The father has been fitted with a prosthesis, but due to the poorly healing wound it is not suitable for him and rehabilitation with it is now impossible.

On the advice of a nurse, they applied for a care allowance. This is generally intended for people over one year of age whose long-term adverse health condition requires the care of another person to manage the basic needs of life.

The allowance is provided on the basis of the Social Services Act and the implementing decree. Its amount is graded according to whether the dependence on another person is mild, moderate, severe or total, and an adult may be granted an allowance of CZK 880 – CZK 19 200 according to the dependence.

Tip: We have also written a separate article on How to get a care allowance with all the details on the amount and the criteria for assessing it.

With her help, Klára’s father, Mr Antonín, wrote an application for a care allowance, which he addressed to the labour office of his place of residence. The process was a little more complicated than he had anticipated. First, they were contacted by a social worker, with whom they arranged a visit for the following week. The social worker spent a total of about 40 minutes in the home. She inspected the flat, the bedroom and the sanitary facilities and with her questions she checked whether Mr Antonín was able to prepare his own food, what were his options in terms of hygiene, dressing, whether he was able to transport himself to the door, call for help, etc. Mr Antonín replied that he was unable to do most of the things himself, as he was practically bedridden. All the time the social worker took notes and at the end of the visit she said that she was forwarding the findings of the investigation to the district social security administration for a medical assessment.

Approximately three weeks later, a decision arrived from the regional labour office awarding Mr Antonín the lowest level of care allowance – i.e. light dependency. The decision described the general condition of a lower-limb amputee, where rehabilitation, the use of a prosthesis and, subsequently, almost complete self-sufficiency were expected. However, the applicant’s advanced age was allegedly taken into account, among other things, and for that reason the allowance was granted at all.

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Appealing against a decision on care allowance

If your claim for care allowance is rejected or awarded at a lower level than you expected, you can appeal under the Administrative Procedure Code. You have 15 days to appeal. On the 15th day you can still submit your appeal at the post office.

Tip: Although the decision itself is preceded by the opinion of the reviewing doctor, don’t be fooled, your appeal is not against the medical report or the decision of the CSSA, but against the decision of the Labour Office.

Although the appeal is directed to the Labour Office, the Ministry of Labour and Social Affairs is responsible for processing the appeal and making a new decision, and the Labour Office will forward the entire file to the Labour Office within 30 days of the date of receipt of the appeal (in the case of an inadmissible or late appeal, the file will be forwarded to the administrative appeal body within 10 days).

How to formulate an appeal?

First of all, identify yourself (i.e. the person who claimed the care allowance) in your appeal. State your name, surname, date of birth and place of residence or other address for service. Identify the decision you are appealing against (who made it, when it was made and the reference number) and describe why you disagree with the decision and what you are proposing (for example, that the findings do not correspond to reality and that you are asking for an increase in the allowance). If you can attach evidence, please do so. This could be, for example, medical reports confirming the actual state of health and the prognosis for the future. Do not forget to sign the appeal.

Mr Antonín himself filed an appeal, but did not raise any new facts and the appeal was dismissed. He therefore contacted our legal services through his daughter to ask if anything more could be done in the case.

Filing an administrative action

Another defence in such a case is to bring an administrative action. It can only be brought once an appeal has been exhausted. An administrative action must be brought before the regional court in whose district the claimant resides or is present. The time-limit of two months from service of the decision against which the action is brought must be complied with. No court fees shall be payable for bringing an action.

It is not necessary to be represented by a lawyer in the proceedings, but it is certainly advisable to at least consult a lawyer and prepare the application. By properly drafting the lawsuit, your chances of success are greatly increased and in such a case, you can recover the cost of the attorney within a month.

An administrative action is formally similar to a previous appeal. It must be clear what it is about, who is making it, who made the decision it relates to and what is being proposed. A copy of the contested decision is attached.

We had Mrs. Klara describe her father’s health again and compared it with the table that is also used by reviewing doctors. It describes ten basic needs of life, including: mobility, orientation, communication, eating, dressing and putting on shoes, physical hygiene, performing physiological needs, health care, personal activities, and household care. If three to four of these needs are unmanaged, the first level of allowance is eligible, if 5-6 it is the second level, the third level has 7-8 and the fourth level, i.e. full dependence, implies 9-10 unmanaged needs.

In the administrative action, we described the discrepancies between the actual condition and the assessment and had Mr. Antonin’s physician explicitly confirm the medical prognosis with respect to his age. In practice, there can be a diametric difference in the rehabilitation of a thirty-year-old athlete who has had his leg amputated and a nearly ninety-year-old gentleman with diabetes and other ailments following the same medical procedure. But according to the opinion, this was not taken into account.

Judgment of the Administrative Court

The Administrative Court does not decide what level of care allowance will be awarded. The court will only confirm or annul the decision of the administrative authority by judgment (or, if the action is not well-founded, the court will dismiss it). If the decision is annulled, the matter is then heard again by the Ministry of Labour and Social Affairs, which is bound by the legal opinion of the regional court.

The Regional Court overturned the decision of the Ministry of Labour and Social Affairs and the Ministry decided in the new hearing to grant the benefit in stage III where the dependency is severe. Mr. Antonín was able to include additional paid labour in his care, thus relieving Mrs. Klara of her responsibilities.

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Author of the article

JUDr. Ondřej Preuss, Ph.D.

Ondřej is the attorney who came up with the idea of providing legal services online. He's been earning his living through legal services for more than 10 years. He especially likes to help clients who may have given up hope in solving their legal issues at work, for example with real estate transfers or copyright licenses.

Education
  • Law, Ph.D, Pf UK in Prague
  • Law, L’université Nancy-II, Nancy
  • Law, Master’s degree (Mgr.), Pf UK in Prague
  • International Territorial Studies (Bc.), FSV UK in Prague

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