PROCEDURE

The case originated in an application (no. 36801/06) against the Kingdom of Sweden lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Swedish national, Mrs Monica Fexler (“the applicant”), on 30 August 2006.

The applicant was represented by Mr Ulf Jacobson, a lawyer practising in Stockholm. The Swedish Government (“the Government”) were represented by their Agent, Ms Anna Erman from the Ministry for Foreign Affairs.

The applicant alleged, in particular, that the administrative appellate courts had failed to hold an oral hearing in proceedings relating to her request for disability benefits.

On 27 November 2007 the President of the Third Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).

The application was later transferred to the Fifth Section of the Court, following the re-composition of the Court’s sections on 1 February 2011.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1949 and lives in Hallabro.

Since June 2000, the applicant has been on 100% sick leave due to various health problems. She has, inter alia, been operated on for cancer as the consequence of which she suffers from recurrent Erysipelas (a bacterial infection of the skin, which typically involves the lymphatic system) and lymphatic oedema in both legs.

Hence, on 18 June 2001, the applicant applied for disability benefits (handikappersättning) retroactively from June 1999. She claimed that, due to her health problems, she had incurred, and still incurred, extra costs for, inter alia, medication, doctors’ visits, treatment, travel expenses, special clothes and shoes, special soap and creams, and for supplementary vitamins and minerals. She had calculated that these extra costs amounted, in total, to SEK 75,314 (approximately EUR 8,150) per year.

On 3 May 2002 the Social Insurance Office (försäkringskassan –hereinafter “the Office”) of the County of Blekinge rejected the request. It accepted certain extra costs for medication, medical treatment and support material as well as for certain travel up to a specific amount. However, in the Office’s view, the total of the applicant’s extra costs per year amounted to no more than SEK 7,300 from September 1999, SEK 8,900 from January 2000 and SEK 6,800 from January 2001. Thus, the Office concluded that the applicant’s extra costs did not reach the minimum level established for each year to be granted disability benefits (namely SEK 10,374 for 1999, SEK 10,431 for 2000 and SEK 10,517 for 2001, which was equal to 28.5% of the basic amount in line with the price index [basbelopp]). It further noted that the applicant had claimed that she needed help with shopping and some cleaning and driving but that she had not stated that she had a daily need for assistance. In this respect, the Office took into account that the applicant was married and could rely on some help from her husband. Therefore, it considered that she had failed to show that she had a substantial need of assistance in her daily life (minimum two hours per day). Finally, it found that the total need of support was not sufficient for disability benefits to be granted. The decision was based on Sections 5 and 6 of the Act on Disability Benefits and Care Allowance (Lagen om handikappersättning och vårdbidrag, Act no. 1998:703) and the Office also had two medical certificates at its disposal from different doctors who had treated the applicant.

By letter dated 23 May 2002 the applicant appealed against the decision to the County Administrative Court (länsrätten) of the County of Blekinge, requesting that the decision be set aside and that the case be remitted to the Office for further action. In the alternative, she requested that the court declare her entitled to disability benefits as from June 1999. She maintained her claims and developed her reasons for why the various extra costs were essential. She further added that the Office had failed to investigate her actual need for assistance, which she alleged amounted to one hour per day, in order to estimate the total cost of extra needs due to the disability. Moreover, the applicant stated that she needed manual lymphatic drainage which the County Council of Blekinge lacked resources to provide. Since her need was medically documented, she had to travel to a neighbouring county for treatment at her own expense. In this connection, she alleged that she was unable, due to her illness, to use public transport for which reason her travel expenses were higher than calculated by the Office. All these extra costs should, in her view, be included in the calculation to grant her disability benefits.

On 26 February 2003 the County Administrative Court rejected the appeal. As concerned the applicant’s need of assistance in her daily life, the court considered that it was the common responsibility of a couple to clean and shop, for which reason the applicant was not found to be in need of assistance from a third person in her daily life. The applicant was not considered to be in need of assistance on a daily basis to such an extent that this alone could constitute a basis for granting disability benefits. Turning to the extra costs, the court shared the Office’s conclusions and calculations but added some additional costs for special soap. It also observed that the County Council was responsible for the costs related to the treatment for lymphatic drainage and that these costs thus could not be included in the calculation of disability benefits. Furthermore, it found that the medical certificates invoked before it did not show that the applicant was unable to use public transport. The court concluded, in an overall assessment of the applicant’s need of assistance and of her extra costs, that the conditions for granting disability benefits were not fulfilled and, thus, that the applicant was not eligible for a disability allowance.

By letter dated 1 March 2003 the applicant appealed to the Administrative Court of Appeal (kammarrätten) in Jönköping, maintaining her earlier claims and insisting that she was in need of assistance for one hour per day. She further noted that according to the calculation based on the lower court’s judgment, the total amount of extra costs acknowledged by the court was only SEK 41 (approximately EUR 4.50) below the limit to be granted disability benefits for the year 2000. Moreover, the applicant alleged that she had to buy custom-made clothes and special shoes due to her deformities caused by the lymphatic oedema and hip problems. These costs, and the costs for the lymphatic drainage, should be included. She requested that the court order the Office to submit information about how it had calculated her total need for assistance.

On 29 March 2004 the Administrative Court of Appeal rejected the applicant’s request for further investigation of the case as it considered that the case had been clarified to the extent that was demanded. The applicant was given one month to submit, in writing, any further information that she wished to add.

On 8 June 2004 the Administrative Court of Appeal granted leave to appeal and, by letter dated 21 September 2004, the applicant requested that the court hold an oral hearing because she considered the investigation to be incomplete and, for that reason, points about the matter to be decided remained unclear.

In a decision of 27 September 2004, the Administrative Court of Appeal declared its intention to obtain supplementary information from the Office, as it found it necessary to investigate the case further. On 30 September 2004 the Administrative Court of Appeal ordered the Office to submit supplementary information about lymphatic drainage treatment.

In a supplementary submission by the applicant, dated 24 November 2004, she stated that she had been in contact with Blekinge hospital to clarify whether it was now possible to carry out manual lymphatic drainage there. She had received various replies but, according to the latest reply, it was not possible although some private therapist within the county apparently could do it. She demanded that an oral hearing be held by telephone to clarify certain unclear points of the case. During the oral hearing, the Administrative Court of Appeal ought to establish that the hospital lacked resources to provide continuous manual lymphatic drainage treatment, that the frequency of the treatments, as stated in the application for disability benefits, was medically motivated and that costs incurred for treatment performed by private providers were extra costs in the present circumstances. Furthermore, the court ought to clarify contradictions in the Office’s submission and calculate the time needed for assistance as well as the total need for support.

On 21 April 2005 the Administrative Court of Appeal rejected the applicant’s request for an oral hearing “per telephone” as it found that it was not necessary. The applicant was given three weeks to finalise her submissions in writing and she was informed that, after that time, the case could be decided on the basis of the case file as it stood.

By a judgment of 14 June 2005, the Administrative Court of Appeal upheld the lower court’s judgment in full. The court, consisting of five judges including two lay judges, found it established that lymphatic drainage treatment of the kind the applicant needed was to be regarded as medical treatment and that the County Council was responsible for costs of such treatment to the extent that it could be considered medically motivated. Accordingly, when assessing the application for disability benefits, the applicant was not entitled to include extra costs for lymphatic drainage treatment. In the light of this and as the court also shared the County Administrative Court’s assessment concerning the remainder of the subject‑matter the appeal was to be rejected. The judgment was unanimous.

By letter dated 19 July 2005 the applicant made a further appeal to the Supreme Administrative Court (Regeringsrätten), requesting that the Administrative Court of Appeal’s judgment be repealed and the case returned for renewed examination since it had failed to hold an oral hearing. She referred to Article 6 of the Convention and claimed that an oral hearing was necessary in order to clarify the case, in particular her need for assistance. In the alternative, the applicant requested that the court grant her disability benefits.

On 17 May 2006 the Supreme Administrative Court refused leave to appeal.