H.R. v. Försäkringskassan

RÅ 2010 ref. 52, Målnummer: 1201-09
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H.R’s partner became acutely ill during her temporary residency in Great Britain. H.R. travelled to Great Britain to support and care for her whilst she was in hospital. He was the only family member present for multiple surgeries to treat his partner’s life-threatening cancer. This required significant and costly travel for H.R.

Upon returning to Sweden, plaintiff applied for compensation for travel and other costs incurred during his role as his partner’s carer. His request was denied by the Swedish Social Security Insurance Agency (SSIA) as the care did not take place in Sweden.

He appealed the decision to the municipal court, which was satisfied that his presence was essential for his partner to receive the best possible care and that he deserved compensation. The SSIA appealed to the administrative court which overruled the municipal court on the grounds that H.R. had no treaty-based right for compensation. H.R. appealed to the present Court to determine whether the EU law granted him compensation even though the care occurred outside of Sweden and whether Sweden’s law was in contradiction with this requirement.

The Court held that H.R. had the right to claim compensation even though the care did not take in Sweden. The claim was returned to the SSIA for determination of the appropriate level of compensation.

The Court found that EU regulation 1408/71 included carers’ leave as a related medical benefit. The European Court of Justice has found that monthly allowance payments to dependents to find suitable care counted as medical benefits. Ditto for reimbursement for insurance fees and costs for third parties who assisted the provision of care. The Court noted that the purpose of carers’ allowance was to compensate for lost income when a family member cares for an ill relative. Thus, carers’ allowance qualifies as a social security benefit under regulation 1408/71. The Court found that even if carers’ allowance is for the benefit of the relative and not the parient, regulation 1408/71 should apply.

The Court held that Swedish legislation should provide compensation for necessary medical treatments incurred during a stay in an EU member state.

“Carers’ allowance is a compensation for lost income when a family member cares for a seriously ill relative. The compensation paid by health insurance and paid to the relatives. …

Carers’ allowance therefore undoubtedly meets the general prerequisites for being a social security benefit under Regulation 1408/71. Carers’ allowance alleviates the difficult situation for both the carer and the patient. From the patient’s perspective, carers’ allowance must be social benefit which which aims to improve his or her health status and quality of life within the meaning of Article 4.1 of Regulation. The fact that carers’ allowance can be seen as a benefit for the relative does not preclude this finding.” (p. 5)

“Carers’ allowance is however a separate benefit which is technically designed to be a part of the relative’s social security coverage. The amount of benefit is also dependent on the patient’s receipt of compensation and benefits under their insurance. These facts appear to speak against the carers’ allowance being described as a benefit for the patient under the scope of the Regulation. However, carers’ allowance is subject to the patient being covered by the SSIA. The rationale for carers’ allowance is that the patient should decide on whether care is to be provided by a family member and potential financial hardship should not colour this decision. The requirement of consent, where possible, underscores the importance of consent in this process. The design of carers’ allowance so that the right to compensation is tied to the related parties does not preclude, in the Court's opinion, does not preclude the operation of Regulation 1408/71.” (p. 5)

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