With its conduct the Institute for Pension and Disability Insurance, which did not take into account the birth of all three of her children, but only the care of one who reached the age of 1 year, violated the right to equality before the law.

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A complainant contacted the Human Rights Ombudsman of the Republic of Slovenia (Ombudsman) and stated that the Pension and Disability Insurance Institute of Slovenia (ZPIZ) had issued a decision on the right to payment of 40% of the old-age pension, when calculating the amount of the old-age pension and determining the additional percentage according to Paragraph 10 of Article 37 of the Pension and Disability Insurance Act (ZPIZ-2), it did not take into account the birth of all three of her children, as two died in their first year of age; therefore, it only considered the care of one child.

In connection with this, the complainant had previously obtained an interpretation from the Ministry of Labour, Family, Social Affairs and Equal Opportunities (MDDSZ), which, however, believes differently from the ZPIZ, namely that when exercising rights based on the aforementioned article of the ZPIZ-2 and also Article 28 of the same law, the fact that the child is born alive and that the insured person, who is claiming a reduction of the age limit or an additional percentage of the allowance, has taken care of this child is sufficient.

The complainant asked the Ombudsman to resolve the problem; the fact that all her children are not treated equally is especially painful for her.

The Ombudsman was familiar with the mentioned issue, as he had already dealt with a similar case in 2022. At that time, the Ombudsman took the position that when dealing with the issue of meeting the conditions for obtaining the right to an old-age pension, the ZPIZ should understand the provision of Article 28 of the ZPIZ-2 in such a way that parents whose child dies in the first year should be equal in terms of the subject right with adoptive parents and biological parents whose child was adopted before the first year of age, otherwise the right to equality before the law is violated. The MDDSZ was of the same opinion. The ZPIZ, however, did not accept the mentioned position. According to their explanations, in the case of adopting a child in its first year, the predominance of using the right to parental leave and compensation from this title is taken into account, which means that until the age limit is lowered according to the first indent of Paragraph 1 in relation to Paragraph 2 of Article 28 or according to Paragraph 10 of Article 37, the person who spent most of the parental leave is entitled to an additional calculated percentage (e.g. if it concerns the adoption of a child aged 4 months, then the adoptive parent is entitled to it, and if it is the adoption of a 10-month-old child, the biological parent is entitled to it). In the case of the adoption of a child after the first year of age, the lowering of the age limit according to Article 28 of the ZPIZ-2 is not taken into account for the adopter, nor is the additional calculated percentage according to Paragraph 10 of Article 37 of the ZPIZ-2, but this is taken into account for the biological parent.

At that time, we published the case publicly on the Ombudsman's website and thus tried to encourage the authorities to take into account the Ombudsman's position (and also the opinion of the MDDSZ). The link to the case can be found on the page: https://www.varuh-rs.si/obravnavane-pobude/primer/predpise-je-treba-tolmaciti-ustavno-skladno/.

Unfortunately, in the case of the complainant, it is not possible to change the decision of the competent authorities other than through the prescribed legal channels, i.e. in the appeal procedure and in further court proceedings. The Ombudsman therefore advised the complainant to challenge the decision of the ZPIZ first with an appeal, which is decided by the institution's second-level authority; in case of failure, the procedure continues before the Labour and Social Court. Only through these procedures could the complainant achieve a change in the existing ZPIZ decision. With the expiry of the appeal period, the decision of each authority, including the ZPIZ, becomes final and binding, which means that it is legally binding.

By publishing the case, the Ombudsman once again reminds the ZPIZ and MDDSZ of the mentioned problem and the necessity of its solution; urges the authorities to eliminate violations and change the existing decision-making practice. In the opinion of the Ombudsman, it is unacceptable that such situations are still treated in a completely incomprehensible and, in the opinion of the Ombudsman, also inhumane way. 9.1-13/2024