If the user of the institutional care service is not enabled guaranteed means for at least basic subsistence during several days of pre-announced absence from the institution, in the opinion of the Ombudsman, there may be an infringement of the right from Article 50 of the Constitution of the Republic of Slovenia. The Ministry for a Solidary-Based Future believes that, due to limited budgetary resources, the problem cannot be resolved.

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The complainant drew attention to the necessity of a change regarding the issue of paying maintenance fees during the absence of beneficiaries included in institutional care, as well as the proposal that beneficiaries be reimbursed for the costs of food for the days when they are not present at the social welfare institution.

The Ministry of Solidary-Based Future (MSP) explained to the Ombudsman that in order to achieve the goals of the Resolution on the National Social Security Programme for the period from 2022 to 2030, which aims, among other things, to reduce the risk of poverty and increase social inclusion, within the framework of the National Implementation Plan 2023–2025, among other things, it had prepared a proposal for a measure that envisages, in the event of repeated periodic absences due to staying in the home environment, the return of part of the contribution of a user with an intellectual disability between the ages of 18 and 26, which is aimed at the education programme and included in the institutional care service in a training institution for the payment of maintenance costs. Other changes are not planned for now. The MSP is aware of the plight of families who care for people with special needs. When planning solutions, they also keep in mind the needs of people with special needs, but their implementation is limited to the budgetary resources available. The MSP additionally explained that, unlike older users of institutional care services, users between the ages of 18 and 26 are mostly still directed to a special education programme. For children, adolescents, and adults up to the age of 26, who are directed to a special education programme, institutional care also includes training, which is carried out in accordance with the regulations for the field of education. The intended change was designed in order to at least relieve the financial burden on the families of young people who are still involved in the education process, similar to how the field is also regulated in the legislation of the Ministry of Education.

The Ombudsman welcomes the relief for the families of young people who are still involved in the education process, but at the same time he does not recognise in the aforementioned reasons that would justify that individuals who, in accordance with the current regulations, are obliged to be supported by the state if they are not able to support themselves during the time they are using the institutional care service, and taking into account the fact that they also have the right to be absent from the service, even for several days together, which undoubtedly reduces the cost of providing the service, this is not taken into account in such a way that, at least in part, the young person could receive monetary compensation with which they could take care of their subsistence during the period they are absent from institutional care. The Ombudsman therefore believes that this leads to interference with the right to social security from Article 50 of the Constitution of the Republic of Slovenia. The Ombudsman also points out that while it is mostly correct to put children in a better position than adults in many circumstances, special attention must be paid to the position of adults who are unable to meet their needs, and at the same time, unlike children, have no physical persons who would be obliged to support them. According to the Ombudsman, it may in such situations de facto be a matter of transferring the responsibility of the state to someone who is otherwise not obliged to do so, but it is important to be aware that they will most likely do so anyway due to emotional ties with the individual. Legally and formally, there is most of the time a bond of guardianship, but it does not carry any obligation that the guardian should support the individual.

The Ombudsman therefore did not receive an explanation as to why it is not possible to ensure comparable treatment of the refund of part of the contribution of users of the institutional care service over the age of 26, and which justifies the completely identical treatment of persons who use institutional care services on an ongoing basis and persons who pay the same amount for the service, despite the fact that they have constant and predictable absences, both during weekends and holidays, which undoubtedly results in lower costs in providing the service. The Ombudsman pointed out the urgent need for deinstitutionalisation, which is certainly closer to the solution, in which instead of permanent residence in an institution, an individual has the possibility to combine residence in an institution and in the home environment. The MSP also did not answer the question of whether the most frequent withdrawals of individuals from institutional care to the home environment should be provided only to individuals from families who have an adequate material basis to support a relative during weekends and holidays, despite the fact that otherwise there is no duty of support, since an individual in institutional care does not have their own available funds with which they could cover the costs of periodic withdrawals to relatives or other persons with whom they could otherwise spend part of their life.

The Ombudsman regrets that the MSP apparently does not recognise the problem as so unacceptable that it is necessary to solve it immediately and conditions the solution on sufficient budgetary resources, while it is not even clear why it would represent any burden on the budget if an individual were paid an amount that would otherwise be consumed when they used the service, so it can be saved. 9.6-29/2023