Nordisk socialrättslig
tidskrift

Abstract

This article deals with judicial precedents within a specific area of administrative law, namely social security law. The area of law is characterized by a high level of amendments as well as a broad scope for assessments. Historically, it has been considered that there is a need for more precedent within social security law. Precedents are a fundamentally important tool strengthening legitimacy. First, the doctrine of precedents is briefly introduced. Furthermore, an historical overview of various legal tools to promote precedent within social security discussed. In the 90s the Social Security Court of Appeal was abolished and the area of law came under the umbrella of administrative courts. The general ombudsman for social security was established. The article concludes with a comprehensive discussion and analysis of the development of judicial precedents within the area and highlights key challenges.

Abstract

In cases where someone other than the recipient has caused incorrect disbursements of sickness benefit, the individual’s understanding of the incorrectness determines whether they should have to repay the amount. In some decisions from the Swedish Social Insurance Agency (SSIA) and judgments from the administrative courts, the individual’s bad faith is assessed by establishing the availability of information about sickness benefit on the agency’s website. Based on this account, the recipient is obligated to repay the incorrectly disbursed amount. Over the last few decades, the Swedish welfare administration has undergone extensive digitalisation with agency websites playing a crucial role in communication with individuals. However, upon reviewing the SSIA’s website, it is noticeable that the information referenced in assessments of the individual’s bad faith is often difficult to find and sometimes even missing. Moreover, the assessments are based on abstract reasoning rather than on the concrete circumstances of the particular case. The digital transformation of the administration has previously been researched in how it affects administrative law and how individuals dependent on the welfare state may struggle with or benefit from digitalisation. This article further explores these questions and considers how digitalisation influences the administration’s responsibility to investigate and obligation to state reasons.

Abstract

Personal assistance (PA) for persons with disabilities has been a successful and important welfare reform in Sweden. Studies show that PA empowers persons with disabilities and strengthen their living conditions, particularly their participation and self-determination. PA is crucial to everyday life. However, since the implementation in 1994 PA has been subject to criticism due to financial costs. The Swedish government has stated that PA needs to be financially sustainable to guarantee persons with disabilities PA in the future. In recent years PA has also been discussed in relation to welfare crimes. The Swedish Social Insurance Inspectorate (ISF) has stated that the legislation regarding PA, which has the intent of providing individual rights to persons with disabilities, makes it difficult for the Swedish Social Insurance Agency to control the payments of assistance allowance. ISF has also stated that the legal design regarding PA attracts organised crime and non-serious assistance providers. Preparatory works from the last 30 years regarding PA is subject to a qualitative analysis. The article analyses and contributes knowledge about risk factors regarding welfare crime within the legalisation of PA. The study shows that the legislator has dealt with risk factors regarding welfare crimes throughout the years and ever since the implementation of PA in 1994. PA has been a success when it comes to empowering persons with disabilities and a success for persons with non-lawful intentions.

Abstract

Cross-border remote work is on the rise, prompting a focus in this article on pertinent issues concerning social security affiliation and income taxation. The Framework Agreement, effective from 1 July 2023, is delineated and subjected to critical analysis. The hypothesis posited herein examines the potential of the Framework Agreement to serve as a model for harmonizing tax treaty regulations. A primary benefit envisioned is the reduction of administrative burdens for employers. Nonetheless, the implementation of such adjustments would likely necessitate the imposition of compensation regimes.

Abstract

This article explores the application of semi-automated decision support systems in the administration of social insurance, focusing on the Swedish Social Insurance Agency’s utilisation of an AI system called SAMU (structured analysis of medical records). SAMU employs cognitive analysis models to assist administrators in identifying pertinent information in medical certificates for evaluating eligibility for sickness or activity compensation. The article assesses the implementation of SAMU, examining its potential impact on a comprehensive evaluation of an individual’s work capacity, as well as its implications for legally correct and secure decision-making. The analysis adopts a sociotechnical perspective, considering the mutual influence between society and technology and the resulting framework that shapes the decisions of caseworkers in the realm of automation-related risks in case management.

Abstract

On 1 July 2023, an agreement on cross-border telework (Framework Agreement) began to be applied between a number of EU Member States. It is based on Article 16 of Regulation 883/2004, which gives the possibility to make exceptions from the otherwise mandatory provisions on applicable legislation. The agreement is unique in that it is multilateral, covers a large group of persons and has been developed in a short time. It is a response to the development that has taken place with an increase in telework, primarily due to the pandemic, and that the EU during the pandemic disregarded such work when applying the rules on applicable legislation. These rules could otherwise have led to the applicable legislation being transferred from the country of employment to the country of residence due to telework. In parallel with the Framework Agreement, there is also a Guidance note from the Administrative Commission (AC) with guidance on how to generally apply the provisions on applicable legislation, such as the provision on posting in Article 12 of Regulation 883/2004, in relation to telework after the pandemic exceptions ended on 30 June 2023. Drawing the line between the rules on applicable legislation is not always easy, especially in situations where a person works in a flexible/atypical way. The purpose of this article is to describe the background to this rather revolutionary development, which situations that are regulated in the Framework Agreement and Guidance note respectively, which delimitations that have to be made and application problems that may arise.

Abstract

Compensation for loss of income due to sickness from the Swedish national sickness insurance systems require that the capacity to work is reduced. The concept of working capacity, as well as how it should be measured and proven, has be a topic for discussion in research, and in law and politics, for many years. In this article, the burden of proof, medical certificates as evidence and evidential requirement regarding working capacity within the sickness insurance [sjukpenningförsäkring] are analysed and problematised from a legal perspective. Overall, the analysis shows that the burden of proof rests primarily on the insured, and that medical certificate must contain such information that it is possible to assess the consequences of a disease, which work task’s ability should be assessed against, and how the consequences affect the ability to work. The evidentiary requirement is “probable”, while there are exceptions that enable a lower evidentiary requirement, “consideration of the reasons”. In conclusion, it is most likely that the concept of working capacity, and how it should be understood and assessed, will continue to be the subject of ongoing discussions and investigations in the future.

Abstract

The pandemic has changed working patterns in Europe, with a greater awareness of the balance between work and well-being. More companies have introduced more flexible working policies, with the possibility of teleworking several days a week.

These new digital work patterns challenge the current coordination of Member States’ social security systems under Regulation 883/2004, which designates the Member State where the work is carried out as the competent state. However, continuing to enforce the rules of the Regulation when digital teleworking has become the new normal risks being counterproductive in terms of free movement of persons. Regardless this, the Commission has not made any proposal for the possibility of more extensive teleworking in the current revision of Regulation 883/2004. Instead, the Administrative Commission, a body attached to the European Commission, has adopted a guidance note on telework from 1.6.2023, which sets out the possibilities for telework under Regulation 883/2004. In addition, the Administrative Commission developed a multilateral framework agreement, the Framework Agreement on the application of Article 16(1) of Regulation (EC) No 883/2004 in cases of habitual cross-border telework, which allows for much more extensive telework.

These are non-transparent processes in which national experts have developed initiatives which, although they do not constitute Union law, have long-reaching legal effects. These processes raise the question of the mandate of the Administrative Commission and, above all, of the role that the Administrative Commission can and must play, in constitutional terms, with regard to the coordination of the social security systems of the Member States as prescribed by the Union legislator.

Abstract

Sickness insurance, which addresses people’s livelihoods when they encounter the social risk of illness, is a complex system. Each case requires thorough and careful investigation, both in terms of legal regulation and the individual’s actual situation. During the past years, the Supreme Administrative Court (HFD)has issued several precedent-setting judgments that not only clarify the legal situation but also partially set new requirements for the investigation of the actual circumstances that must be conducted. This article examines how three of the Court’s judgments; HFD 2019 ref. 48, HFD 2022 ref. 47 and HFD 2013 ref. 60, are treated in the Swedish Social Insurance Agency’s own guidance 2013:1 on sickness compensation (a kind of invalidity pension; sjukersättning). The study shows that the current version 12 of guidance 2013:1 on sickness compensation references the relevant judgments. However, it also shows that no significant change has been made to the proposals for investigative actions or questions to involved actors. The so-called DFA chain, whose legal basis is unclear, continues to dominate. This can create ambiguity and uncertainty, not just for the insured but also for the agency’s employees. It should be a task for the Social Insurance Agency, both as an employer and as a government agency, to work to eliminate ambiguities and work systematically to establish a legally secure investigative procedure and to enable the principle of care to become an integral part of the application of the sickness insurance, with the example from sickness compensation.

Abstract

Parents with disabled children in need of care and supervision have from January 2019 and forward the possibility to apply for child nursery allowance instead of child care allowance. The purpose of a reformed support to disabled children is “that the new benefit will be more clear and predictable and that the benefit will be more contemporary compared with the earlier child care allowance.” The reason for having a child nursery allowance instead of child care allowance was that the new benefit would “be according to the rule of law and simple to implement”.

This means that the legislator’s intention of the meaning of rule of law must be investigated. In the preparatory work the words of simplicity, clarity, predictability and timeliness are used. These words will often be used to describe the content of the formal meaning of rule of law. The legislator has “polished up” several prerequisites making them more “timeliness”. Thus, the timeliness is central to decide the legislator’s purpose with the creation of the child nursery allowance. Any differences between the purposes of the child care allowance and the child nursery allowance will be examined.

The rules concerning the child nursery allowance are basically not different from those concerning the child care allowance, why “the new” in the child nursery allowance is not in particular comprehensive. Anyway, the application has been much more restrictive. The great actual changes in the legal system and in the legal application can hardly be claimed. The perception that the child care allowance regulations had been applied too generously and that the need to diminish the costs for this form of allowance had grown in political strength must be the explanation of the changed application of law.