Centrale Raad van Beroep [Central Appeals Tribunal], 20 October 2010, LJN:BO3581

Centrale Raad van Beroep, 20 October 2010, LJN BO3581, 09/365 AWBZ & 09/3626 AWBZ
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A., a boy born in the Netherlands to a Nigerian immigrant mother, was diagnosed with an autistic disorder and an intellectual deficiency. As a result, A. required counseling programs as a supplement to traditional schooling by the Dutch Care Needs Assessment Centre (“CAC”). A. made a request for a residence permit under the Dutch Aliens Act 2000 [Vreemdelingen Wet 2000] but was rejected.

Under the Dutch General Act on Exceptional Medical Expenses (“EMEA”) [Algemene Wet Bijzondere Ziektekosten], residents of the Netherlands were entitled to health insurance. However, this coverage did not extend to immigrants unless they had established residency under the Aliens Act 2000.

A. petitioned Agis Zorgverzekeringen Plc. (“Agis”), a private Dutch health insurance firm, for health insurance coverage under the EMEA. Agis twice denied this request, arguing, first, that the EMEA provided no coverage to A., since he had not established residency under the Aliens Act 2000, and, second, that no international treaties applied which overrode the EMEA and entitled A. to health insurance. Agis’s refusals to provide health insurance were rejected by Dutch courts, which noted that  Article 28 of the Convention on the Rights of the Child (the “CRC”) included a “right to education.” Agis issued a third response on May 8, 2009, which was the subject of the instant case.

In its third response, Agis no longer contested that Article 28 of the CRC included a right to education, and therefore entitled A. to some amount of care under EMEA, but rather challenged the amount of EMEA care to be provided. While A. requested the amount of care called for in an April 28, 2008 CAC assessment, Agis instead provided to A. a lower amount of care called for in CAC’s later January 6, 2009 assessment. The second assessment reduced the number of hours of “supporting counseling” by one quarter and entirely eliminated “activating counseling.”

A. appealed Agis’ decision.

The Tribunal held that A. belonged to a vulnerable category of persons under Article 8 of the European Convention on Human Rights (the“ECHR”) due to his age. As a result of being in this vulnerable category, A. was entitled to the protection of his private life. Providing A. with the lower standard of care from the 2009 CAC assessment rather than the more generous 2008 assessment made A’s personal development “effectively impossible,” which threatened “the maintenance of his human dignity.”

Accordingly, the Tribunal held that provisions of EMEA which denied coverage to A. were superseded by Article 8 of the ECHR. Agis was therefore required to provide care in accordance with CAC’s April 28, 2008 assessment, and was responsible for A.’s legal costs.

“The
Tribunal ascertains that between the parties it is no longer disputed that the
Appellant in connection to his appeal on in relation to Article 28, first
paragraph of the CRC includes the right to education and therefore entitlement
to EMEA-care.” Section 4.3.

“In Article 8 of the ECHR is included the right to respect for the private life
of a person which also includes the physical and psychological integrity of
that person and is primarily aimed at, without external interferences,
guaranteeing the development of the personality of each person in his
association towards others. This article not only envisages forcing states to
refrain from interfering with the private life of persons, but under special
circumstances it also entails obligations which are inherent in the right to
respect of private life, that are essentially needed for an effective guarantee
of the ends enclosed in this article. This is particularly the case for
children and other vulnerable persons who enjoy a right to this kind of
protection.” Section 4.5.3.

“Bearing
in mind his age, the Appellant belongs to the category of vulnerable people who
in light of Article 8 ECHR are entitled to protection of their private life.
The Tribunal arrives at the conclusion that deprivation of the indicated
supporting and active counselling of the Appellant, results in his personal
development being effectively made impossible, which in turn severely threatens
the maintenance of his human dignity.” Section 4.5.5.

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