Resolution CM/ResChS(2013)13
The Central Association of Carers in Finland against Finland
Complaint No. 71/2011

(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 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, to lead independent lives in their familiar surroundings for as long as they wish and are able by means of provision of housing services suited to their needs and state of health.

    The complaint is about the reorganisation of long-term care whereby former institutional care facilities (elderly homes and long-term health care wards) are being replaced by service housing in the context where the pricing systems of the two types of services are significantly different. As a result, persons in need of service housing and service housing with 24-hour assistance are charged higher fees than clients in institutional care because:

    - there are no upper limits on fees for service housing and service housing with 24-hour
    assistance;
    - services, medicines and housing are charged as separate packages.

    The Constitution of Finland gives to public authorities the responsibility to guarantee to everyone indispensable care and sufficient social, health and medical services. Municipalities implement the social welfare and health care legislation as part of their self-government. Section 17 of the Social Welfare Act (710/1982) lists the services that municipalities are obliged to provide, this includes both institutional care and housing services. Municipalities have nevertheless discretionary power to decide on the ways and means of arranging social services and on the type of service structure to respond to the needs of municipal residents. 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 but they are entitled to decide how to distribute the government grants for social welfare and how to provide services.

    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)( Article 4 of the Draft articles on responsibility of States and comments by the International law Commission) (see, mutatis mutandis, European Court of Human Rights Assanidze v. Georgia, Judgment of 08.04.2004).

    States may 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). Concerning Article 23, the modalities of operation of local autonomy should not prevent the effective application of this provision.

    Statistical information on the number of facilities in the various categories of services for elderly persons, the different fees charged or the number of appeals relating to the fees is not available.

    It is also acknowledged by the government that the supply of care in service-housing and institutional care does not match the demand in all municipalities.

    The following principle relating to fees for social services developed under Article 14 of the Charter is also applicable to Article 23: “(…) Social services may be provided subject to fees, fixed or variable, but they must not be so high as to prevent the effective access to these services. For persons lacking adequate financial resources in terms of Article 13§1 such services should be provided free of charge; (…)” (Conclusions 2005, Statement of Interpretation of Article 14§1).

    Compared to institutional care, service housing and service housing with 24-hour assistance are not subject to any specific law-based regulation on determining the fees or on disposable incomes. As acknowledged by the government, there are no standard grounds for determining and collecting client fees for service housing.

    Insufficient regulation of fees for service housing and service housing with 24-hour assistance combined with the fact that the demand for these services exceeds supply, does not meet the requirements of Article 23 of the Charter insofar as these:

    - create legal uncertainties to elderly persons in need of care due to diverse and complex fee policies. While municipalities may adjust the fees, there are no effective safeguards to assure that effective access to services is guaranteed to every elderly person in need of services required by their condition;

    - constitute an obstacle to the right to the “provision of information about services and facilities available for elderly persons and their opportunities to make use of them” as guaranteed by Article 23b of the Charter.

– that no separate issue arises under Article 14 of the Charter

    According to Article 14 of the Charter States Parties undertake to promote or provide social welfare services. Even though Article 14 is general in its application, particular attention should be given to the access of social services to certain groups of the population. These include the elderly (Conclusions XII-1, General Introduction, 5.11 social services).

    The overall organisation and functioning of social services fall within the scope of Article 14§1. Issues such as services for elderly are primarily covered by Article 23 (Conclusions 2005, Bulgaria, Article 14).

    The focus of the present complaint is that the lack of regulation of clients’ fees for service housing and service housing with 24-hour assistance. This is a question that rightly falls under the scope of Article 23 and no separate issue arises under Article 14§1.

    – that Articles 13 and 16 of the Charter are not applicable

    Having regard to the complaints of the Association, Articles 13 and 16 are not applicable to the present complaint.

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)13

Observations of the Government of Finland in reply to the report of the European Committee of Social Rights on Complaint No. 71/2011, submitted by the Representative of Finland at the GR-SOC meeting of 9 April 2013

The complaint

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 and medical assistance, social services and social, legal and medical protection, in breach of Articles 13, 14, 16 and 23 of the revised European Social Charter.

Committee’s decision

The Committee, in its report of 4 December 2012, concludes that insufficient regulation of fees for service housing and service housing with 24-hour assistance combined with the fact that the demand for these services exceeds supply, does not meet the requirements of Article 23 of the Charter insofar as these:

- create legal uncertainties to elderly persons in need of care due diverse and complex fee policies. While municipalities may adjust the fees, there are no effective safeguards to assure that effective access to services is guaranteed to every elderly person in need of services necessitated by their condition;

- constitute an obstacle to the right to the provision of information about services and facilities available for elderly persons and their opportunities to make use of them as guaranteed by Article 23 of the Charter.

The Committee concludes:

- unanimously that there is a violation of Article 23 of the Charter;

- unanimously that no separate issues arise under Article 14§1 of the Charter;

- unanimously that Articles 13 and 16 of the Charter are not applicable.

Information

According to the present government’s programme, development of the client fee system will continue in order to prevent social welfare and health care payments from becoming an obstacle to service use. In accordance with the government programme, the client fees for service housing will be revised on the basis of proposals made by a working group of the Ministry of Social Affairs and Health. Legislation will be prepared on uniform national criteria for determining client fees for service housing arranged by municipalities. Uniform client fees will be introduced for all service housing with 24-hour assistance, and legislation will be prepared concerning a minimum amount of disposable funds to be left each client. In accordance with the government programme, the legal provisions on fees for social welfare and health care will be consolidated into one act of Parliament in order to improve the transparency of the fee system.

The government intends to divide the development of the client fee system envisaged in the government programme into different stages. At the first stage, the government will prepare the necessary changes of fees for service housing arranged by municipalities.

On 7 January 2013, the Ministry of Social Affairs and Health set up a working group to draft proposals for revising the client fees for municipal service housing and to assess the impacts of the proposals for municipalities and clients. The mandate of the working group extends from 14 January to 31 December 2013. The group is expected to assess, inter alia, the concept of income and the income-related services. Therefore the working group will consider e.g. the possibility of including support services in the client fee and the question whether the income-related element of the fee should apply to such services as meals, transports and emergency telephones and related services. Moreover, the working group will consider the criteria for determining the fee e.g. according to the time consumed for the service.

The task of the working group is to consolidate the existing proposals concerning client fees for housing services, prepared and submitted during the earlier development work, and to draw on these proposals for preparing a government proposal on client fees for service housing. In addition to preparing legislation on client fees, the working group will draw up a work plan for the next stages of the revision of the fees.

Conclusions

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.



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