In the Altea blog, attorneys from the Verband Covid Langzeitfolgen (Covid Long-Term Consequences Association) discuss the legal issues faced by people with Long COVID. In this article, Christian Haag looks at issues relating to invalidity insurance (AI/IV). The following fictional case is based on real letters:
I registered with the AI/IV office over a year ago but haven’t heard anything yet. I’ve since lost my job, and my sick pay will be running out soon. I don’t know for how much longer I’ll be able to pay my rent. What should I do?
To move forward in this case, I would recommend taking the following action:
- Request, in writing, all the invalidity insurance files (including any files that are still “in progress”).
- Study the files to check what has been done, and where the case stands with the AI/IV office.
- If the rate of progress does not seem reasonable given the nature of the case (more information on this below), send a registered letter to the AI/IV office with the following content:
- Set a deadline of 30 days.
- Insist that a written decision is issued by a specified date (e.g., regarding occupational measures, daily benefits, medical clarification, or pension – depending on the specifics of the case).
- Explain that you will lodge a complaint of legal delay if the deadline is not met.
This usually works.
A registered letter can have a significant impact, meaning that legal proceedings are not necessary.
Next step: Lodging a complaint
If the specified deadline is not met and no plausible timescale is provided for the next steps and a prompt decision is not expected, a complaint of legal delay can be considered.
In this case, it is a good idea to seek legal assistance (e.g. from the Covid Long-Term Consequences Association). Reviewing files, investigating, and putting together a complaint of legal delay involve an average workload of three to six hours, with a subsequent cost of CHF 1’000 to CHF 2’000 Swiss Francs, plus court costs. The exact amount depends on the file volume and the complexity of the case. If the cantonal court approves the complaint of legal delay, the AI/IV office will usually have to pay compensation that covers most of the attorney fees.
Legal bases
The legal bases for a complaint of legal delay are outlined below. A detailed version of this derivation, with comprehensive source information, is published on the Website of the Covid Long-Term Consequences Association(in German).
The AI/IV office should reach a decision after a maximum of 12 months.
Entitlement to invalidity insurance benefits
In accordance with the Swiss Federal Law on Invalidity Insurance, insured parties are entitled to a pension if their capacity to work has fallen, on average, to 40% or less over the course of a year, without significant interruption, and if their degree of invalidity is at least 40% after the end of this year. An insured party is also entitled to a pension if he or she is not, or not yet, able to return to the workplace at the end of the one-year waiting period.
The provision of early-intervention measures does not release the AI/IV office from the obligation to clarify which occupational measures are necessary and which pension amount applies in order to achieve the most effective integration back into the workplace. It should instead be possible for the AI/IV office to reach, once the maximum 12-month early intervention phase has elapsed, a formal decision regarding the approval or rejection of integration measures (including daily benefits) or the pension entitlement.
Entitlement to rapid processing
Someone who files an application is entitled to receive a decision within a reasonable period. In social security proceedings, the speed of the decision is of particularly high importance. However, this entitlement to rapid progression of the process must not lead to the contents not being investigated and assessed with the necessary care.
The reason for the delay is irrelevant.
When is there a legal delay?
If the invalidity insurance office takes too long to reach a decision, this may constitute a legal delay. This applies if it does not reach a decision within a period that “seems reasonable given the nature of the case and all other circumstances.” It is the court’s responsibility to check whether the AI/IV office is acting quickly enough in each specific case, or if it is ultimately taking too long, in which case there is a legal delay. The reason for the delay is not relevant – for example, the AI/IV office being overloaded with cases is not an excuse.
Therefore, there are no set rules for the assessment of what constitutes a reasonable duration for the process. Instead, it must be checked on a case-by-case basis whether the duration is reasonable under the specific circumstances. The matter in dispute and the associated interests may require more rapid decisions or may allow for longer processing periods.
Insured parties need to send a reminder
To claim a legal delay, first, you need to ask the relevant authority to expedite the process (see recommendation 3, above). If the authority still does not reach a decision, you can lodge the complaint with the cantonal insurance court. To claim the legal delay here, you must first have sent a reminder, insisted on a decision, and set a deadline for this decision.
If the complaint is rejected, legal costs may be payable in some cantons.
The complaint of legal delay does not prove entitlement to benefits
The complaint of legal delay is about receiving a decision: after all, you can only submit a legal challenge and have your case reviewed again once you have received a valid decision. In the case of a complaint of legal delay, therefore, your entitlement to claim any disability benefits is not checked. You can use it to speed up the process to clarify your entitlement to benefits. In an ideal situation, it will mean you quickly receive a (positive) decision.
Costs
Legal proceedings against the AI/IV office with regard to a legal delay do not constitute a “benefit contention.” If the AI/IV office wins (i.e., if the court denies the existence of a legal delay), no compensation for legal fees must be paid to the AI/IV office and the AI/IV office will be ordered to pay the legal costs. Cantonal law can, however, stipulate a duty of payment. These costs will be borne by the insured person if his or her complaint of legal delay is rejected. Standard legal costs, e.g., in the canton of Lucerne, are between CHF 500 and 1’000.
Lawyer Christian Haag (LL. B) is a Certified Specialist SBA in Torts and Insurance Law and a partner at Häfliger Haag Häfliger (www.anwaltluzern.ch). He is also the president of the association “Verband Covid Langzeitfolgen”.
