sou · H9B369 · 2021-08-20 00:00:00 — Vården ska dock vara Försäk- ringskassan behjälplig vid upprättandet av den preventionsplan som beskriver vilka åtgärder som ska vidtas i behandlingsprogrammet. Det innebär således inte att de administrativa uppgifterna för vården helt försvinner. De torde dock enligt utredningens mening minska i omfattning i förhållande till . är det relativt få personer som beviljas rehabiliteringsersätt- ning. Både antalet och andelen av de sjukskrivna som får rehabiliter- ingsersättning har minskat . Även tidpunkten för när rehabi- literingen sätts in har med tiden kommit att ske allt senare i sjukfallen. Med utgångspunkt från hur andelen av samtliga sjukfall där arbets- livsinriktade rehabiliteringsåtgärder satts in utvecklats gör utredningen bedömning att antalet personer som deltar i rehabiliteringsåtgärder skulle kunna öka med ca 15 000 personer. Under dessa förutsättningar bedömer utredningen att utgifterna för rehabiliteringspenning skulle öka med 0,7–1,0 mil- jarder kronor. I ett statiskt perspektiv innebär en överflyttning av personer från sjukpenning till rehabiliteringspenning att sjukpen- ningen kommer minska i motsvarande grad som rehabiliterings- penningen ökar. Vad som händer i ett mer långsiktigt dynamiskt perspektiv råder ingen tydlig konsensus kring i forskningen. Forskningen kring arbets- livsinriktad rehabilitering är begränsad i dess slutsatser om vilken typ av insatser som är effektiva för att få sjukskrivna att återgå i arbete. När det gäller själva rehabiliteringsprocessen finns det studier som pekar på att vissa grupper av sjukskrivna kan bli hjälpta av tidiga rehabiliteringsinsatser, medan andra pekar på att den försäkrade skulle kunnat återgå i arbete utan insatser. Om det genomsnittliga antalet dagar med sjukpenning minskar kan en minskning av utgifterna för sjukpenning göras med ca . En minskning med skulle inne- bära minskade utgifter för sjukpenning med ca . Beräkningarna under dessa antaganden visar att en besparing i sjuk- penning kan göras med . På motsvarande sätt skulle utgifterna öka med om antalet dagar med sjukpenning förlängs och med om antalet dagar ökar med . Utredningens förslag kan förväntas leda till att fler personer be- viljas arbetslivsinriktade rehabiliteringsåtgärder. Med ett tydligare krav på att rehabiliteringsbehovet ska kartläggas tidigt i sjukfallet kom- mer det innebära en ökad administration för för att upprätta rehabiliteringsplaner, följa upp dessa planer och vid behov revidera dem. Även Arbetsförmedlingens insatser inom ramen för det förstärkta samarbetet kan påverkas. Utredningens bedömning är att detta kommer öka de administrativa kostnaderna för . Utredning kan dock närmare bedöma kostnader för detta. Tabell S.1 Sammanfattning av förändringar av statens utgifter till följd av utredningens förslag Ökade utgifter för staten +0,av BNP Arbete, studier och uppdrag under tid -400 till -1 900** Administration*** Källa: Egna beräkningar. Anm.: * Avser utgifter för preventionspenning. Ökade kostnader för rehabiliteringspenning nettas på kort sikt ut av minskade kostnader i sjukpenning. **Avser minskning av utgifter för sjukpenning på lång sikt givet att sjukpenningkostnaderna minskar. ***Avser de administrativa kostnader som kan siffersättas. Terms of Reference of the Inquiry The Inquiry was established through a decision by the Swedish government on 26, 2020. On the same day, the terms of reference (dir. 2020:31) were decided and Doctor of Laws appointed as head of the Inquiry. The terms of reference asks the Inquiry to review four different benefits that all are part of the Swedish social insurance system. The sickness compensation (sjukersättning) is a benefit that compensates loss of income for persons aged 30–64 with a lasting reduced work capability due to sickness or disability. The activity compensation (aktivitetsersättning) is aimed at individuals aged 19–29 with a work capability that is reduced due to sickness or disability for at least one year. In relation to sickness compensation and activity compen- sation, the Inquiry’s task has been to review the regulation governing the access to sickness compensation and activity compensation respectively, as well as the rules on under which conditions indivi- duals that have been granted one of the two benefits can work, study, or participate in society through e.g. voluntary work without losing their right to benefits. The preventive sickness benefit (sjukpenning i förebyggande syfte) is a benefit aimed at compensating for loss of income when an individual undergoing treatment or rehabilitation in order to prevent sickness, shorten the period of sickness or to prevent loss of work capability. The rehabilitation compensation (rehabiliterings- ersättning) is granted individuals who have reduced work capability and who need work-related vocational rehabilitation. The task of the Inquiry has been to perform a comprehensive review of the two rehabilitation benefits. The right to sickness compensation and activity compensation The starting point for the Inquiry’s terms of reference regarding the benefits of sickness compensation and activity compensation is that the benefits should provide a high degree of security in the event of long-lasting reductions of work capability, good predictability for the individual, and stability in application of the regulations over time. The requirements in the regulations for an individual to be granted these benefits should be made more fit for purpose and mobilise the individual’s work capability as far as possible. This part of the task has included: –reviewing the regulations for the right to sickness compensation, including investigating the requirements for being granted sick- ness compensation for older persons of working age; –reviewing the regulations for the right to activity compensation when work capability is reduced. Work, studies, voluntary work, etc. during a period of sickness compensation or activity compensation The Inquiry’s terms of reference state that the present regulations for the circumstances in which and the extent to which individuals who have been granted sickness or activity compensation can work, study, participate in voluntary work, or engage in leisure activities are difficult to overview. This creates a risk that individuals will refrain from taking part in community life since they do not know how their livelihood will be affected. This part of our remit has consisted of –making it more predictable and easier to work, study, hold appoint- ments, etc. during a period of sickness compensation or activity compensation for reduced work capability. The starting point for the Inquiry’s task regarding benefits during rehabilitation under the Social Insurance Code is to shape a more modern regime that is adapted to the rehabilitation offered today and that can contribute to preventing ill health and provide support during both rehabilitation and a transition to other work. This part of the task has included: –presenting proposals for how current benefits during rehabilita- tion can be modernised or replaced with one or more new bene- fits that are simpler for individuals and processing agencies to administer and that ensure sufficient follow-up and control of the rehabilitation. Social insurance systems are intended to protect individuals against a particular social risk. In the broader area of sickness insurance, the social risk is that people have reduced work capability on account of sickness or disability and are therefore unable to support themselves through paid work. However, it is not the sickness or disability as such that determines the right to benefit but the effect that it has on the individual’s possibilities of working. The conditions in sickness insurance determine the extent to which their work capability must be reduced for the individual to be entitled to benefit. One important perspective in this context is that the groups receiv- ing activity compensation and sickness compensation are hetero- geneous. Some individuals have worked but have had their work capability reduced through injuries, sicknesses or accidents and have therefore needed to leave the labour market. Others have never had paid work. These forms of compensation should provide protection for both these groups. A fundamental balance that needs to be struck when designing social insurance benefits is that the rules must be designed so as to give the individual protection against the social risk involved at the same time as the individuals who could support themselves by work- ing are not given access to the benefit. One important part of this balance is what is is commonly referred to as the work first principle (arbetslinjen). In various forms and over a long period of time, this principle has guided the design of social insurance schemes in . ’s ambitions regarding prosperity and welfare provision require high a workforce participation rate. People should support themselves as far as possible by working, and anyone who is unable to do so, should be given help to come back through rehabili- tation or labour market policy measures. The work first principle also requires people to participate in these measures and to be prepared to look for work and to take jobs of the kind that are available to them. When welfare systems are designed, they have to be designed in a way that creates incentives to work. It is worth noting, in this context, that people are expected, on certain premises, to be prepared to transition, i.e. to make their way back to the labour market as such, not solely to jobs that they have experience of or train- ing for. The work first principle also displays concern for the individual. In addition to being a livelihood, work also provides meaning and context. It is therefore important not to give up on people’s capacity to be able to support themselves through paid work. Considerable resources are therefore invested in ensuring that people do not leave the workforce prematurely or unnecessarily and in providing support to enable people to gain or regain work capability. All the benefits dealt with in this report have a strong link to the work first principle. The purpose of the preventive sickness benefit is to prevent reduced work capability, and the rehabilitation benefit is intended to facilitate a return to work. Sickness compensation re- quires, both at present and with the Inquiry’s proposal, that the reduction of work capability is long lasting and that the possibilities for rehabilitation have been exhausted. A person who receives activity compensation must, as a general rule, also participate in activities intended to enable them to gain or regain work capability. In the case of those granted sickness or activity compensation, there are rules that make it possible to mobilise any remaining work capability. At the same time there is an outer limit to the work first principle. There exists a point when it is no longer possible, either from the perspective of the individual or that of society, to justify continuing measures intended to enable a person to gain or regain work capability and to require the individual to participate in these activities. Where that limit is drawn depends in part on what resources society is pre- pared to invest in measures such as rehabilitation and adapted jobs, but also on the expected efficiency of these measures. At the same time, the perspective of the individual must be taken into account so that the hypothetical benefit of these measures to society does not lead to an unreasonable situation for the individual. These balances become particularly clear regarding older people of working age. The closer the individual gets to retirement, the more difficult it will be to justify requiring the individual to e.g. tran- sition to a job that they have no prior experience of. At some point it is no longer reasonable for society to continue to demand that the insured party makes a transition to a new job. It is easy to come to the conclusion that there is a irreconcilable conflict of goals between, on the one hand, the work first principle and the for a longer working life and, on the other hand, opportunities to leave working life before what would otherwise be the retirement age. At the same time, benefits such as the sickness compensation function as safety valves which can be necessary for a general policy that strives for high labour force participation to appear reasonable and enjoy legitimacy. There are also other principles that have been important for the work of the Inquiry. One is that the regulations have to be designed in a way that provides good legal certainty. When designing the regu- lations, account must also be taken of the fact that in social insurance schemes an individual assessment has to be made on the basis of the specific circumstances of the individual. The benefits should also be easy for the individual to understand and easy for the responsible agencies to administer. There should also be stability in application and there should be good possibilities of preventing and checking for cheating and abuse. Furthermore, the regulations should be as accurate as possible so that the right person gets the right benefit, and the benefits should be designed in such a way that they are seen as legitimate by citizens. The right to sickness compensation Sickness compensation can be granted if the individual applies for the compensation or when the responsible agency, , replaces the individual’s sickness benefit, rehabilitation benefit, annuity or compensation for hospital care under the Social Insurance Code () with sickness compensation. Under present regulations, for an individual to have the right to sickness compensation their work capability has to be reduced per- manently as a result of sickness or some other reduction of their physical or mental performance in jobs in the whole of the labour market. This includes sheltered jobs and jobs with wage subsidy, for example. Moreover, for the requirements for the right to compensa- tion to be met, the assessment made must be that further rehabili- tation will not be capable of improving their work capability. Sick- ness compensation is granted until further notice and no earlier than from the month when the individual turns 19. Compensation for persons aged 19–29 is always paid as full compensation. For persons aged 30 or older, the compensation can be granted as full compensa- tion or three-quarters, half or one quarter of the full level. Sickness compensation can be paid up until the month before the date when the individual turns 65. The Inquiry’s Analysis As regards the right to sickness compensation, the Inquiry has iden- tified two main problems. One is that ’s interpre- tation of the rules show great variations over time, the other that there is a discrepancy between the requirements for sickness com- pensation and the ability of individuals that are denied benefits to support themselves through work. Since 2008 there has been a decline both in the number and the share of persons who receive sickness compensation. This decrease cannot be explained in terms of changes in demography, health or conditions in the labour market. The approval rate, i.e. the share of applications that have been granted, has varied over the years and the insurance scheme displays problems regarding the stable application of its rules. New grants of sickness compensation decreased sharply after 2015. At the same time, the refusal rate increased from 43 per cent in 2014 to 70 per cent in 2019. Great variations and unstable application mean prob- lems concerning legal certainty, predictability, and trust in the insur- ance scheme. When application varies over time without any major changes being made to the rules for the insurance scheme, this can endanger legal certainty. Moreover, there is a risk that faith in the social insurance system and confidence in will be harmed. The Inquiry draws the conclusion that the set of problems concerning variations in application is primarily due to changes in the application of the regulations by . has changed, and considerably tightened, its interpretation starting in 2015. The discrepancy between the possibilities of being granted sick- ness compensation and the possibility of self-support through work is due mainly to the design of the regulations, especially the labour market concept used – at present an assessment is made of the applicant’s work capability in relation to any job in all of the labour market – but also to strict interpretations. Even though health has improved generally among older people and more will be able to work longer, there are significant differ- ences between different groups. Strict rules that do not take age into consideration will have the effect that individuals that are denied sickness compensation but still unable to support themselves through work can be forced to start collecting old-age pension earlier, which will result in a lower pension. The Inquiry’s Proposals When determining the right to sickness compensation, the assessment of the individual’s work capability should be made in relation to the same labour market concept as is used in the examination of the right to sickness benefit. In line with the proposals in Government 2020/21:171 which will modify the labour market concept used in the sickness benefit, this means that the examination of work capability will be made in relation to paid work in a specified occupational group that contains jobs normally found in the labour market or other suitable work that is available to the individual. The Inquiry has found that the present regulations lead to many individuals remaining in long-lasting sick leave even though their work capability is permanently reduced and their possibilities of rehabili- tation exhausted in jobs normally found in the labour market. The Inquiry’s assessment is that this is the main reason why it is pro- blematic that the individual’s work capability is assessed in relation to different labour market concepts in examining their right to sickness benefit and sickness compensation. The present regulations mean that many individuals remain in the sickness benefit system even though no more measures are available to enable them to gain an improved work capability. The proposal is therefore that the labour market concept against which the right to compensation has to be examined should be the same for sickness benefit and sickness compensation. A new concept for the required duration of the reduced work capability should be introduced: “foreseeable future”. The con- cept, which replaces the criterion “permanent” is taken from previous statements in the legislative history and case law and emphasises the foreseeability of the assessment of duration. The assessment of whether work capability is reduced for the foreseeable future should not take account of time beyond the last point in time when sickness compensation can be paid out. Sickness compensation is aimed at individuals that have a lasting reduction of their work capability for reasons. The Inquiry’s proposal is a clarification and is taken from previous preparatory works and case law. “Foreseeable future” should be understood as the time for which a prognosis of the reduced work capa- bility is possible to make. For there to be a right to sickness compensation, there should not be any rehabilitation measures that can be expected to result in the individual regaining their work capability. When making this assessment, account should only be taken of rehabilitation measures where the individual is expected to gain or regain their work capability before the point in time when sickness compen- sation can no longer be paid out. As regards the standard of proof for the assessment of whether there are any remaining rehabilitation possibilities that can give or give back the individual work capability, for it to be possible to grant sickness compensation it is sufficient that there can be presumed not to be any such rehabilitation possibilities. In the present regulations a central point in the assessment of whether the individual is to be granted sickness compensation is whether rehabilitation possibilities can be presumed to lead to the conclusion that the individual can be presumed to regain some work capability. This assessment will continue to be important for the question of the right to compensation, but is likely to be of even greater impor- tance, in view of the Inquiry’s proposal of a change of labour market concept, harmonising it with the concept used in the examination of the right to sickness benefit. This means that the assessment of exhausted possibilities of rehabilitation will, along with the duration criterion, be the most important dividing line in the assessment of the right to sickness benefit and to sickness compensation. A codified standard of proof should be introduced for the exami- nation of the right to sickness compensation. There should be considered to be a right to sickness compensation if it is probable that work capability is reduced in the way required for the right to sickness compensation. Against the background of the variation in the share of refusal decisions over time, despite unchanged regulations, the Inquiry has considered, in accordance with its remit, whether a new standard of proof, regulated in a statute, regarding sickness compensation and activity compensation can be expected to contribute to greater sta- bility in application. At present there is no legally regulated standard of proof in the examination of the right to sickness compensation. Here sickness compensation is in line with what applies to administrative matters in general: standards of proof are not part of the regulations. The introduction of a new standard of proof in the text of the law must be considered a very unusual measure. However, the Inquiry takes the view that, in general, more space should be given to evidential questions in administrative procedure. In the area of social insurance there is often no discussion of questions of proof in the legislative history. There is a need for guidance here, so as to provide better conditions for a foreseeable and more uniform application of rules concerning standards of proof for the legal examination. The posi- tion taken by the Inquiry on this question is therefore that a standard of proof regulated by statute should be introduced and that the advantages of doing so outweigh the risks. The clearest advan- tage is the uniformity of processing and assessment that would result from greater clarity on this matter. With a clearly stated standard of proof, there is less risk that handling officers and decision-makers will make different or varying assessments. There will probably also be less risk that a higher or lower standard will be applied depending on which decision-maker handles the matter, so that some standards may be too high while others may be too low. Even when the ques- tion of the standard of proof is not explicit or regulated by law, the decision-maker at , and the members of the court in a review at a court, must nevertheless consider whether the require- ments for the individual to be granted compensation have been met. The Inquiry draws the conclusion that “probable” is a well-balan- ced standard of proof for this type of matter. Sickness compensation to older individuals The work capability of individuals who have at most five years left until the age when they can no longer receive payments of sickness compensation should be assessed in relation to paid work in a specified occupational group that contains jobs normally found in the labour market that the individual has experience of or other suitable work that is available to the individual.