CEDH · CASELAW;COMMUNICATEDCASES;ENG — 4 juillet 2022

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } Published on 25 July 2022   FIRST SECTION Application no. 29204/21 Krystyna DUDEK against Poland lodged on 29 May 2021 communicated on 4 July 2022 SUBJECT MATTER OF THE CASE The application concerns alleged discrimination in granting social benefits to caretakers of disabled persons on the basis of their professional activity and their entitlement to old-age pension. The applicant is retired and in receipt of old-age pension in the net amount of PLN 970,28 (ca. EUR 210). She takes care, on a full-time basis, of her disabled husband who has been assessed to be incapable of independent existence. In 2019 the applicant applied for a care allowance ( świadczenie pielęgnacyjne ) – a social benefit in the form of a monthly payment that is significantly higher than her old-age pension (PLN 1,583, or ca. EUR 340, in 2019) and available to caregivers of disabled adults if they do not take up employment or resign from employment or other gainful work in order to provide said care. On 5 July 2019 the Mayor of Wrocław refused to grant the applicant the benefit sought. The applicant appealed but the Wrocław Self-Government Board of Appeal upheld the impugned decision on 12 August 2019. The authorities relied on Section 17(1) of the Family Benefits Act of 28   November 2003 ( ustawa o świadczeniach rodzinnych ) which excluded, from those eligible for the allowance, all persons already eligible for old-age pension, irrespective of the amount of the pension paid to the caregiver. The Family Benefits Act was amended in 2013 when the care allowance, hitherto capped at PLN 520 (ca. EUR 110), was subject to annual adjustment, reaching PLN 1,971, or ca. EUR 420, in 2022. The applicant appealed, asking to, at least, be paid the difference between her old-age pension and the allowance, stating her readiness to waive the right to old-age pension altogether in order to receive the social benefit in question. The administrative courts of both instances dismissed her appeals (the final judgment was given by the Supreme Administrative Court on 30   November 2020), having found that the State had discretion to decide which groups were entitled to social benefits and that the impugned allowance was a form of remuneration for those who are unable to take up work or chose to give up work in order to take care of a disabled person. As the applicant was not working, she could not qualify for the allowance. The courts also found that the right to old-age pension could not be waived. The decisions in the applicant’s case were issued against the background of a very wide divergence in the case-law of Polish courts. The applicant complains, under Article 14, Article 1 of Protocol No. 1 and Article 8, that she was refused the right to care allowance purely on the basis of her being a person entitled to old-age pension. That resulted in her inability to cover the basic needs of her family. She submits that if she were employed and received the equivalent of her old-age pension as monthly salary, she would have been eligible - upon resigning from her job - for care allowance. She further points out that if she had never worked and had thus never qualified for old-age pension, she would also have been eligible for the allowance. Lastly, she alleges to be a victim of legal uncertainty stemming from the above-mentioned discrepancy in the domestic case-law and resulting discrimination. QUESTIONS TO THE PARTIES 1.     Has the applicant suffered discrimination in the enjoyment of her Convention rights, contrary to Article 14 of the Convention and Article 1 of Protocol No. 1 to the Convention (see Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, §§ 54-55, ECHR 2005‑X; Molla   Sali v. Greece [GC], no. 20452/14, §§ 123-127 and 133‑137, 19   December 2018)?   2.     Has there been an interference with the applicant’s right to respect for her private and family life, as protected by Article 8 of the Convention, by refusing her the care allowance (see mutatis mutandis Moskal v. Poland , no.   10373/05, §§ 90-93, 15 September 2009)?