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Published on March 7, 2013 News

Mistake of the Czech Social Security Administration in pension insurance

Public Defender of Rights stated errors in the procedure taken by Social security authorities that were based on incorrect procedure adopted during proving of the facts decisive for inclusion of employment periods for pension purposes. He appealed to the principle of material truth, for which it is necessary that the administrative authority proceeds in manner leading to the ascertainment of the status of affairs about which there are no reasonable doubts.

Since the Defender did not manage to achieve rectification he informed the Chamber of the Deputies of the Parliament of the Czech Republic of this fact.

The claimant conducted gainful employment on the territory of the Czech Republic between 1974 and 1983 as a guide, based on employment contracts with various travel agencies. As of 1983 she has been permanently residing in Germany. Last year a claim to old-age pension from the Czech social security system should have emerged. The claimant delivered to the Czech Social Security Administration (hereinafter as “CSSZ) written documents, particularly employment contracts and photocopies of money orders (pay slips), and requested valorization of achieved insurance periods.

According to CSSZ the documents proving the claim of the claimant in respect to her employment and earnings are insufficient. CSSZ referred to regulation no. 128/1975 Coll., in wording valid as of December 31st, 1992 stating the submitted documents do not contain the data on real substantiated earning in individual months. According CSSZ, it is not apparent from the employment contracts that the claimant achieved in the months in question at least CZK 400,00 per month, which was the main condition for valorization of employment period for the purpose of pension.

Through investigation the Defender came to the conclusion that CSSZ has erred in its evaluation of employment. Social security authorities had sufficient material documents to reinvestigate and include further periods of claimant’s participation in pension insurance than those that they had recorded in the informative record of claimant’s pension insurance. The authorities did indeed attempt to reinvestigate further period of employment based on delivered documents, however they satisfied themselves with data contained in incomplete personal record issued by claimant’s former employees.

The Defender emphasized that some employment contracts contained provisions on fixed monthly earning, which in all cases exceeded CZK 400,00. Social security authorities failed to deal with this issue sufficiently.

When dealing with matters of pension insurance, the basic proof is a document in paper form. In respect to content, sufficing should be any closely unspecified document that could plausibly prove claimed facts. If it is not possible to carry forward any of the proofs, the use of which is described by a special legal regulation (in this case Act no. 582/1991 Coll., on Social Security Organization and Implementation, as amended), the Authority cannot refuse the presentation of another piece of evidence. The Defender agrees that CSSZ cannot derive the missing data according to its own consideration, but no legal regulation prevents it to prove relevant facts in any other manner. The claimant was providing maximum possible cooperation during reinvestigation of the insurance period. The fact that the office does not have relevant documents (personal records), apparently due the failure of claimant’s former employees to observe their obligations, cannot be effected to the detriment of the pension applicant. I did not identify myself with the opinion of CSSZ that the information on monthly earnings agreed in an employment contract cannot be deemed sufficient. It is hard to imagine a more plausible evidence of earnings and duration of work that the claimant could submit after so many years.

As a remedy, the Defender recommended to CSSZ to perform repeated evaluation of documentary evidence submitted by the claimant, particularly the employment contracts, whence the fixed monthly earnings are clear. He furthermore proposed closer and more intensive cooperation with the claimant during the reinvestigation of data.

Due to the fact that CSSZ did not accept the measures proposed, the Defender turned to the Ministry of Labour and Social Affairs, as the superior authority, with the request for a standpoint issued to the procedure selected by CSSZ and to rectify the situation. According to her statement, the Minister of Labour and Social Affairs did not find any fundamental errors in the procedure taken by CSSZ. She claims that the agreement on fixed earnings in an employment contract is proven by presumed earnings only, thus these cannot be deemed a sufficient evidence of real earning. She concluded by stating that the claimant may enforce her claim at the court.

Since the Defender did not manage to achieve rectification by notifying the superior authority, he informed the Chamber of the Deputies of the Parliament of the Czech Republic of this fact as is required by the provision of § 24 par. 1 letter b) of Act on Public Defender of Rights.

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