A complaint contacted the Human Rights Ombudsman of the Republic of Slovenia (Ombudsman) and described controversial circumstances related to the charging of services in the private institution for senior citizens SeneCura Dom starejših občanov Maribor (SeneCura Retirement Home, Maribor). In doing so, he expressed his disagreement with the fact that the mentioned home charged him additionally for the service for his own bathroom, which he shared with the resident in the next room; he also had comments on the charging of vegetarian food and booking costs for accommodation in the home. The complainant also submitted a complaint to the Ombudsman regarding the reprimand he received from the home's management. The Ombudsman found irregularities in relation to the billing of the private bathroom service and the issuing of a written warning, but he did not detect any violations in the other parts.

* * *

The complainant wrote to the Human Rights Ombudsman of the Republic of Slovenia (Ombudsman) stating his disagreement with the way accommodation services are billed in the private institution for the elderly, SeneCura Dom starejših občanov Maribor (Institute), especially in connection with his own bathroom, special dietary requirements at his request, and the offer of a new room. The complainant also stated the disputed circumstances of the warning he received from the management of the home and against which he sent a complaint and a counter-proposal to the management. The Ombudsman contacted the Institute several times for clarification. He received their answers and documentation, in which they explained the legal basis for charging for institutional care services, especially the private bathroom, and the circumstances of charging for the reservation, the preparation of vegetarian food, and the issuing of a written warning. All communications with the Ministry of Solidarity-Based Future (MSP) and with the complainant were also sent to the Ombudsman. The Ombudsman carefully examined all of the above with the Rules on the Methodology for Pricing Social Welfare Services (the Rules) and gave an opinion, of which he informed both the complainant and the Institute.

Findings regarding charging for own bathroom

It follows from the Rules that the price for a double room with shared bathroom facilities is the basis for the price of the standard service; if this room has its own bathroom, based on Article 33 of the Regulations, the cost of care can be increased by a maximum of 10 per cent. However, if it is a single bedroom with a shared bathroom, the price for such a room is formed in such a way that the price of the standard service for a double room with a shared bathroom is increased by 10 per cent (because it is a single bedroom). If such a single room has its own bathroom (it is a bathroom that is used only by the person in this single room), then, according to the Ombudsman, another 10 per cent can be added to the basic price. The term own bathroom means the room has its own, independent, individual bathroom (with sanitary facilities and shower or bathtub). What is actually provided to the individual user is of key importance when charging the price of services. The Institute also warned the MSP about this, and the Ombudsman agrees.

The Ombudsman assessed the Institute's reference to the valid price list and the agreement signed with the complainant as insufficient and inadequate. Last but not least, in Article 33 of the Rules, it is stated that providers can increase the price of care due to the above-standard space by a percentage of the lowest price of the standard service from Article 31 of these Rules, namely 10 per cent for a private bathroom (shower or bathtub in addition to sanitary facilities). In this particular case, it is not possible to say that it is a question of above-standard accommodation for the complainant who otherwise lives in a single room; the bathroom is shared with another resident.

The Social Inspectorate of the Ministry of Labour, Family, Social Affairs and Equal Opportunities (MDDSZ) also pointed out that the stated provisions of the Rulebook, which defines the options for additional charging for private toilets and bathrooms, are unclear, when it dealt with a report of suspected irregularities in charging the price in the case of the complainant and at the same time referred to the possibility of resolving the misunderstanding in court, if the parties do not resolve it themselves; however, it did not introduce an inspection procedure.

Even the fact that the Institute has obtained consent to the price in accordance with the aforementioned Rules did not convince the Ombudsman of the correctness of the additional billing for the service of the private bathroom; namely, consent is given for the service of a private bathroom (10 per cent of Care I), namely in the amount of EUR 2.79 per day. It is also not logical, nor is it fair and consistent with the Rules, that in circumstances where two users share a bathroom, but otherwise each has their own room, the Institution charges the same amount for their own bathroom as if the user had the bathroom in their own room and actually used it themselves.

The aforementioned causes the Ombudsman to be uncertain as to whether the Institute, as a provider of institutional care with a concession granted by the Ministry of Health and Social Welfare, has done everything necessary to eliminate concerns, both on the part of the initiator and the Ombudsman, as well as in general, regarding possible improper behaviour when charging for services. Here, it is crucial to keep in mind that users of institutional care services are generally always the weaker side of the contractual relationship. All this affects their well-being, dignity, and quality of life in the Institute. This is also why all dilemmas regarding the correctness of the implementation and charging of the price of long-term care should be clarified immediately; in case of doubt, act in favour of the weaker party, i.e. service users, as otherwise their rights may be violated.

Findings regarding the issuance of a written warning

A written warning can lead to dismissal, eviction, or relocation from the home, so the Ombudsman warned the Institute that this is a measure of last resort that must be approached very carefully. This means that, before imposing the measure, the complainant should be given the opportunity to defend and present his view of the situation and that he would be able to state beforehand all the facts and circumstances that were the basis for the decision to impose a disciplinary measure – a written warning

The action of the complainant, which was the basis for the imposition of the measure, is described in very general terms; it is also clear that the Institute followed the reporting of employees, but it is not possible to confirm that the ascertainment procedure was also carried out. In its reply to the Ombudsman, the Institute wrote that the complainant was previously interviewed, as part of which a description of the event he was supposed to commit was read to him, and it was said that he agreed to it. In this case, the Ombudsman cannot know with certainty whether the complainant was enabled to actively participate or whether he merely agreed with the recording of the act committed.

The Ombudsman believes that every resident who is in a disciplinary procedure has the right to actively participate in it and to protect their rights and legal interests in it, and the right to be informed of all the facts is an essential part of this and the circumstances that the Institute found in the procedure and that are important for the decision in the case, and the latter also the right to have a ruling on them. The mentioned right is also an aspect of the fair procedure from Article 22 of the Constitution of the Republic of Slovenia, which is even more important in this particular case, since it cannot be replaced by a possible subsequent procedure, since this is not foreseen at all.

It is necessary to issue a written warning in institutional care homes in an appropriate manner, i.e. in such a way that the rights of everyone are protected in this procedure, otherwise it may also lead to a violation of their dignity and honour. In the event of violations of the house rules and agreements concluded with service users, the Institute is obliged to act procedurally in accordance with the law and by-laws as well as with internal acts, and the Institute also warned the MSP about this. The adversarial nature of the procedure, listening, exchange of views, mutual confrontation, and others are key elements of a democratic ascertainment or evidentiary procedure; this is all the more important so that the users of institutional care services have a sense of equality and consideration and not of possible retaliation, which was also mentioned by the complainant.

The Ombudsman warned the Institute that it had not carried out the procedure of imposing a disciplinary measure on the complainant in accordance with democratic principles and according to a predetermined procedure. The house rules of conduct in such cases do not contain any rules or procedural guarantees for the protection of the rights of the parties in this procedure.

In his opinion, which he submitted to the Institute, the Ombudsman expressed the expectation that, in accordance with what was written, they would resolve the resulting complication with the complainant, and in the future the procedural rules for the imposition of disciplinary measures will be supplemented accordingly and the procedures will be carried out taking into account the right to cooperation and defence, so that they have no qualms, and above all, that they will use the sentence of disciplinary measures as the last and extreme option. Regarding the alleged non-responsiveness of the Institute, the charging of the costs of vegetarian food as a special feature of the complainant's diet, and regarding the costs of the reservation, based on the information received, the Ombudsman did not detect any irregularities on the part of the Institute. 9.7-17/2024