The Central Association of Carers in Finland against Finland
Complaint No. 70/2011
(Adopted by the Committee of Ministers on 11 June 2013
at the 1173rd meeting of the Ministers’ Deputies)
The Committee of Ministers,1
Having regard to Article 9 of the Additional Protocol to the European Social Charter providing for a system of collective complaints;
Taking into consideration the complaint lodged on 6 July 2011 by The Central Association of Carers in Finland against Finland;
Having regard to the report transmitted by the European Committee of Social Rights containing its decision on the merits, in which it concluded unanimously:
– that there is a violation of Article 23 of the Charter
Article 23 of the Charter provides for the fundamental right of elderly persons to social protection. With a view to respect this right, States Parties are committed to take the necessary actions to enable elderly persons to remain full members of the society and to lead independent lives in their familiar surroundings for as long as they wish and are able. This includes the provision of services and facilities necessitated by the state of elderly. The existence of a carer’s allowance for family members looking after an elderly relative is one of the ways to implement Article 23.
The complaint primarily concerns the unequal treatment in different parts of the country of informal carers looking after elderly persons but also alleges that the lack of funding in some parts of the country from the start or the middle of the year leads to an unequal treatment in the delivery of services to elderly persons.
The Constitution of Finland gives to public authorities the responsibility to guarantee to everyone adequate social welfare. Actual provision of social welfare is assigned to municipalities by the Social Welfare Act (710/1982). Section 17 of the Act stipulates that municipalities are responsible, inter alia, for “provision of support for informal care”. However, municipalities have discretionary power to decide on the ways and means of arranging the social services, and on the type of service structure within which it responds to the needs of municipal residents. In Finland, the services available are: support to relatives, i.e. informal care allowance, home help, service housing (and service housing with 24 hour assistance) and residential care. The municipalities are independent to set priorities and even leave some of the measures inapplicable, if they consider that they manage to satisfy the need without them.
Finland has separate legislation on informal care, namely the Act on Informal Care Support (937/2005). According to Section 3 of the Act, informal care support may be granted by a municipality in certain situations. This provision does not make payment an obligation but leaves it under the discretionary power of the municipality, although according to the Act on Planning and Government Grants for Social Welfare and Health Care (733/1992), municipalities receive financial support from the government in order to organise these services (on average 1/3 of the costs).
The Act (937/2005) defines a minimum amount for care allowances, €353.62 per month in 2011. This amount is determined according to the commitment and competence in relation to the care needed by the person receiving the care. A higher amount of €707.24 per month is established if the informal carer is temporarily and for a short time prevented from working during a burdensome transition period of care. If a municipality wishes to put greater efforts to support informal care, it may pay much higher allowances than the minimum amount.
Although the law sets such a minimum amount for the allowance, this applies only if the allowance is paid; however, it may not be paid if the municipality so decides for lack of the necessary resources or because it does not regard services for the elderly as a priority objective.
The municipalities of Vantaa, Espoo and Kokemäki assessed that the need for availability of the allowances of informal care exists and identified a great number of people, to whom they paid the support. However, later, based on economic constraints, they stopped paying the support or came to the same result by tightening the criteria. Moreover, any alternative service for the persons concerned was not arranged or at least the government could not give sufficient evidence of any compensatory care.
According to the complainant association, the actual implementation of the national legislation varies widely in the different municipalities in Finland and informal caregivers are not treated on an equal basis when it comes to allocating allowances for this kind of support.
According to the general principle of international law, in terms of the international responsibility of States, the conduct of any State organs, including local authorities, is deemed to be an Act of State (International Federation of Human Rights (FIDH) v. Belgium Complaint No. 62/2010, § 54) (see, mutatis mutandis, European Court of Human Rights Assanidze v. Georgia, Judgment of 08.04.2004).
States may, therefore, decide either to exercise certain powers or to delegate them to local authorities or the social partners. However, such a delegation does not relieve them from the obligations entered into under international agreements (Conclusions 2006, General Introduction, §10).
To this effect, the following principles related to the decentralisation of welfare services developed under Articles 13 and 14 of the Charter apply also to Article 23:
- The compliance with the Charter is assessed taking into account the effective application also in the regions (Conclusions XVIII-1, Volume 2, 2006, Spain, Article 13).
- The same requirements apply in cases where social welfare services were decentralised and the welfare services were entrusted to local bodies (Article 14, Conclusions XV-2, Austria; Finland; Italy; Netherlands; Sweden).
- The discretionary power of authorities has been taken into account as follows: “…the authorities responsible for granting assistance to persons in need had very wide or insufficiently limited discretion and that this weakened the effectiveness of judicial review in such matters. The Committee also noted that there were no criteria of jurisprudence set out by the administrative jurisdictions. It therefore considered from the information supplied that Greece still did not recognise an entitlement to social assistance within the meaning of Article 13§1 of the Charter” (Conclusions XIII-4 Greece, Article 13§1).
- Indeed, the Charter does not require the same level of protection across the country but a reasonable uniformity of treatment (Article 14, Conclusions XV-2, Netherlands).
The lack of uniformity in the services provided for elderly persons throughout Finland resulting from the lack of uniformity in the funding of such services by municipalities does not as such violate Article 23 of the Charter. However, the fact that the legislation allows practices leading to a part of the elderly population being denied access to informal care allowances or other alternative support constitutes a violation of this Article.
Having regard to the document distributed at the request of the delegation of Finland at the meeting of the Rapporteur Group on Social and Health Questions (GR-SOC) of 9 April 2013,
1. takes note of the statement made by the respondent government and the information it has communicated on the follow-up to the decision of the European Committee of Social Rights and welcomes the measures already taken by the Finnish authorities and their commitment to bring the situation into conformity with the Charter (cf. Appendix to the present resolution);
2. looks forward to Finland reporting, at the time of the submission of the next report concerning the relevant provisions of the European Social Charter, that the situation has been brought into full conformity.
Appendix to Resolution CM/ResChS(2013)12
Observations of the Government of Finland in reply to the report of the European Committee of Social Rights on Complaint No. 70/2011, submitted by the Representative of Finland at the GR-SOC meeting of 9 April 2013
The complaint presented by the Central Association of Carers in Finland was registered on 6 July 2011. The association alleges that Finland violates the right of elderly persons to social protection, in breach of Article 23 of the revised European Social Charter. It alleges that the right of elderly persons to social protection is violated on the grounds that informal carers are in an unequal position depending where in Finland they live.
The Committee, in its report of 4 December 2012, holds that the lack of uniformity in the services provided for elderly persons throughout Finland resulting from the lack of uniformity in the funding of such services by municipalities does not as such violate Article 23 of the Charter. However, the fact that the legislation allows practices leading to a part of the elderly population being denied access to informal care allowances or other alternative support constitutes a violation of this Article.
The Committee concludes unanimously that there is a violation of Article 23 of the Charter.
The present government’s programme contains a number of objectives for developing informal care. The government has decided to prepare a national programme for the development of informal care. For this task, the Ministry of Social Affairs and Health has set up a broad-based working group (KOHO) with a mandate from 1 February 2012 to 31 December 2013. One of the members of the working group and its secretary come from the Central Association of Carers in Finland, which has filed the collective complaints.
The development programme will contain the objectives regarding informal care for the current and the next electoral period and the related measures to be taken, an assessment of the cost impacts of the measures and other impacts, and an implementation plan. In addition, the task of the working group is to co-ordinate the measures of different branches of administration, local authorities, organisations and other actors, as well as the co-operation and division of work between them in developing informal care, and to examine the necessary legislative amendments.
The working group is expected to take account of the ongoing reform of social welfare legislation, including the Act on Supporting the Functional Capacity of the Ageing Population and on Social and Health Care Services for Older People (980/2012), in effect as from 1 July 2013, and the new arrangements for organising, developing and supervising social welfare and health care in the context of the local government and services reform. The purpose is to prepare a development programme aimed especially at decision makers of the government and local authorities. The draft programme will be completed in spring 2013 and circulated widely for comments. The development programme will be finalised by the end of 2013.
In autumn 2012, the National Institute for Health and Welfare sent all local authorities in Finland an inquiry about the situation regarding informal care support in 2010-2012. Preliminary results of the inquiry show that in 2010 an average of 24% of all filed applications for informal care support were rejected. The corresponding percentage was 22% in 2011 and 27% between 1 January and 30 April 2012. From 1 January 2012 to 30 April 2012, the most frequent ground for rejecting an application (76% of all rejections) was that the cared for person's need for nursing and caring was so low that it did not fulfil the conditions for granting informal care support. The second most frequent ground for rejection (17% of all rejections) was insufficiency of funds reserved for informal care support. Other grounds for rejecting applications included the informal carer's insufficient health and functioning capacity considering the requirements of informal care (4% of all rejections) and the unsuitability of the cared for person's home for informal care (1% of all rejections). Preliminary results from the inquiry will be available in the next few weeks.
The State budget for 2013, adopted by the Finnish Parliament, includes a permanent annual increase of 10 million euro in central government transfers to local government. The increase is intended for developing support services for informal care in municipalities. In 2013, the transfers amount to approximately 31% of the total costs of the services. The increase in the central government transfers will permit the municipalities to use approximately 32 million euro more than before for providing support services for informal care. Of this sum the transfers account for approximately 10 million euro and the funds of municipalities for approximately 22 million euro.
The Ministry of Social Affairs and Health has requested the aforementioned KOHO working group to prepare a proposal on allocating an additional central government transfer to local government. On the basis of the proposal, the Ministry has recommended that the municipalities use the increase in central government transfers for providing services to those informal carers and cared for persons who already receive informal care support. Furthermore, the working group finds it important to improve the opportunities of informal carers and cared for persons to participate in rehabilitation. All local authorities were informed about the recommendations in February 2013.
The Act on Supporting the Functional Capacity of the Ageing Population and on Social and Health Care Services for Older People reinforces the obligations of municipalities to ensure, among other things, that elderly people receive care in the form of informal care when it is possible considering their circumstances.
Under Section 5 of the Act, municipalities are required to draw up a plan on measures to support the well-being, health, functioning capacity and independent coping of the aged population and to arrange and develop the services needed by aged people and informal care. The plan must be taken into account e.g. in preparing the budget of the municipality. Municipalities must allocate sufficient resources for implementing the plan (section 9).
A local council for the elderly must be set up in all municipalities, involved in the preparation of the above-mentioned plan and given an opportunity, also in other contexts, to influence the planning, preparation and assessment of municipal activities in matters relevant e.g. to services needed by the elderly (Section 11). Municipalities must provide the elderly with high quality social welfare and health care services, which are timely and sufficient for their needs (Section 13).
Long-term nursing and care of elderly persons must be arranged primarily at their home or in another home-like place (Section 14). According to the government proposal for the aforementioned Act (HE 160/2012), the primary means of arranging long-term nursing and care of an aged person would be e.g. informal care, if his or her close persons include a relative or another close person who is willing to and capable of acting as an informal carer. Section 14 of the Act obligates municipalities to ensure the permanence of long-term nursing arranged e.g. as informal care.
An aged person's needs for services must be examined from many perspectives and comprehensively (Section 15). The service plan drawn up for the person must specify the package of services needed to support the well-being and good care of the aged person (section 16).
The government has already taken measures and is still planning to take steps in the future to address the violation found by the Committee in its report regarding the right of elderly persons to social protection.
1 In accordance with Article 9 of the Additional Protocol to the European Social Charter providing for a system of collective complaints the following Contracting Parties to the European Social Charter or the revised European Social Charter have participated in the vote: Albania, Andorra, Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Republic of Moldova, Montenegro, Netherlands, Norway, Poland, Portugal, Romania, Russian Federation, Serbia, Slovak Republic, Slovenia, Spain, Sweden, “the former Yugoslav Republic of Macedonia”, Turkey, Ukraine and United Kingdom.