Background to the complaint

1. The complainant is a staff member of the European Commission, who has a child with a congenital heart condition and asthma. From 2014 to 2019, the EU’s Joint Sickness Insurance Scheme (JSIS) recognised the child's condition as a serious illness.

2. During the COVID-19 pandemic, the complainant’s private doctor issued medical certificates (including in 2021 and 2023) stating that the child needed to be shielded from a possible COVID‑19 infection due to the heightened risks from his heart condition. Because of this, the doctor recommended that the child should not attend school in person. Due to the risk of infection, the doctor also recommended home schooling for the child’s sibling.

3. The children received distance education from the European School during 2020 and 2021. However, in 2022, the European School informed the complainant that it would no longer provide distance learning for the children. In November 2022, the complainant requested financial aid from the Commission to cover the costs of special education needs for his children, so they could continue distance learning at another school. The complainant claimed that he could not meet the costs of the fees for such a school.

4. Under Article 76 of the EU Staff Regulations[1], the EU institutions can provide such aid. The article sets out that “gifts, loans or advances may be made to officials, former officials or where an official has died, to those entitled under him who are in a particularly difficult position as a result of serious or protracted illness or by reason of a disability or family circumstances”. The specifics of this aid are laid down in internal rules agreed by the Heads of Administration[2] (hereafter Guidelines 281/20[3]). This aid is intended to support non-medical expenses for staff members with disabilities or those with dependent family members with disabilities.

5.  The Commission, which takes the formal decision on the request for aid, rejected the request because the Commission’s medical officer issued a negative opinion. The medical officer, who is responsible for drafting the opinion, acknowledged that the child had a cardiovascular condition but determined that the child did not have a disability of 20% or more. According to Guidelines 281/20 (Point 5.1), a person must have a disability of at least 20%, as assessed by the institution’s medical officer, to qualify for aid.

6.  In its decision rejecting the request, the Commission also said that the complainant should have provided a certificate from the European School confirming that the school could not accommodate the child’s needs. Point 6(b) of Guidelines 281/20 states that for the costs of education at other schools to be reimbursed, the institution must ascertain that the European Schools cannot accommodate the needs of the child concerned.

7. The complainant made an administrative complaint against the decision under Article 90(2) of the Staff Regulations but the Commission rejected it. The Commission stated that the medical officer’s assessment must be considered final, as long as it was made lawfully[4]. The Commission’s review was limited to checking whether there was a manifest error in the assessment by the medical officer, who had found that the degree of the child’s disability is below the threshold required for this type of aid. The Commission noted that the medical officer thoroughly reviewed the medical documentation and so found no indication of a manifest error in the medical opinion.

The inquiry

8. The Ombudsman opened an inquiry into the Commission’s decision not to grant aid to the complainant to cover the special education needs of his children. 

9. In the course of the inquiry, the Ombudsman met with representatives of the Commission and received comments from the complainant on a report of that meeting. This decision does not set out all the information obtained and assessed in the course of the inquiry, but refers only to information relevant for the final assessment of the matter at stake. 

The assessment of the complainant’s aid request

Arguments presented to the Ombudsman

The degree of disability

10.  The Commission explained that Guidelines 281/20 serve as the legal basis, and there is not much flexibility to grant financial aid to individuals who do not meet the requirements, such as the 20% disability threshold set out in Point 5.1.

11. The Commission stated that Point 5.1 of Guidelines 281/20 clearly sets out that, in order to be eligible for aid, the individual in question must have a disability that exceeds the 20% disability threshold. The medical officer is responsible for determining the degree of disability. The medical officer bases their assessment on the medical information provided by the applicant (in this case, the certificate from the child’s doctor), which they assess based on a specific assessment scale (the European physical and mental disability rating scale[5]). This scale is recognised by the Inter-institutional Medical Board[6]. In this case, the medical officer concluded that the child’s disability did not meet the 20% threshold.

12. The complainant disagreed with the medical officer’s assessment, arguing that the medical certificate he provided, together with the information he provided about the increased risk of severe outcome of COVID-19 infections for children with congenital heart disease, should have been considered. He took issue with the current framework for evaluating disabilities.

The need to obtain a certificate from the European School

13. The Commission stated that, in order to be eligible for aid, the complainant should also have provided a certificate from the European School confirming that it could not accommodate the child's needs. The Commission stated that this requirement aimed to ensure that the aid was essential, given the limited budget allocated for such aid. It stated the complainant had been sent all the information in order to fulfil this requirement.

14. The complainant argued that he had insufficient help from the Commission in his relations with the European School.

The recognition of serious illness

15. Regarding the fact that the child had previously been recognised as having a serious illness, the Commission explained that the legal recognition of serious illness and disability are distinct. A medical officer assesses serious illness based on four criteria, including the risk of serious disability. Article 72 of the Staff Regulations provides for the reimbursement of specific medical costs linked to serious illnesses, whereas costs related to disability are managed differently. In some cases, an individual may be recognised as having both a serious illness and a disability. The distinction between illness and disability is also reflected in Article 76 of the Staff Regulations, which addresses financial aid in either situation.

16. The complainant argued that there had been no change in his child’s condition and the family had not reapplied for the ‘benefits’ associated with serious illness due to pressures brought on by the pandemic situation.

Use of the ad hoc committee foreseen in Guidelines 281/20

17. The Commission explained that, due to the complex nature of the case, it had followed a more detailed procedure, involving an ‘ad hoc committee’, as foreseen in point 5.4 of Guidelines 281/20. The committee consists of the medical officer, a social worker and the file manager, and serves as a discussion forum but does not take decisions. One main purpose of the meetings of the ad hoc committee is for the medical officer to receive background information about the social context of the request before making their assessment. In this case, based on all the information available, the social worker advised that home schooling was not in the child's best interest for normal social and intellectual development. The medical officer reviewed all relevant information, including the reports from the child’s doctor, and made their own assessment of the child’s needs. The final decision was taken following an analysis of the different elements in the file, including the content of the request, the social dimension, the opinion of the medical officer and the discussions of the ad hoc committee.

18. The complainant argued that the Commission did not take into account the risk of COVID-19 to the child’s health when deciding if the child's congenital heart disease, combined with the pandemic, constituted a disability, and contended that he and his children had had insufficient contact with the ad hoc committee.

19. Regarding the EU institutions’ obligations under the UN Convention on the Rights of Person with Disabilities (CRPD) and its ‘social definition’ of disability[7], the Commission stated that both the social dimension and the advice of the child’s doctor regarding home schooling were considered in the medical assessment, which was a separate assessment of the child’s needs. While the medical assessment focused on recognising the disability and its degree, and did not explicitly enter into details on the social context, this was discussed between the social workers and the medical officer.

20. The complainant argued that there was a consensus in public health advice proving the increased risk of serious outcomes from a COVID-19 infection for a child with this medical condition. He further argued that the social workers involved in the case were not qualified to weigh the health risks against the social needs of the child.

Application of Article 76 of the Staff Regulations

21. Regarding the possibility of granting aid under Article 76 of the Staff Regulations outside of the provisions of Guidelines 281/20, the Commission explained that, in complex cases such as this one, it examines all options to assist families. There are other rules governing the application of the aid under Article 76, such as the Rules for Repayment of Exceptional Education Costs. However, these rules include a salary threshold (Article 4), which the complainant's family exceeds. The Commission also considered other forms of potential financial assistance but the complainant was also not eligible for these.

22. The complainant argued that the only alternative schools supplying distance learning were private schools with very high fees. He argued that, even with the family’s combined salaries, due to other expenses, he would not have been able to pay the fees.

The Ombudsman's assessment

The Ombudsman’s role

23. The Ombudsman acknowledges the difficult nature of this case, which touches upon very sensitive matters, namely a child’s health and schooling.

24. The Ombudsman’s role in a case such is this is limited to determining if there was a manifest substantive error or a serious procedural error by the Commission in how it handled the complainant’s administrative complaint. It is not the role of the Ombudsman to call into question the medical assessment by the Commission’s medical officer.

25. While the complaint concerned the decision to refuse both of the complainant’s children aid under Guidelines 281/20, the Ombudsman’s inquiry focused on the decision not to grant aid to the child with the medical condition, which would be a precondition for considering aid also to the other child.

The procedure followed by the Commission

26. The Commission followed the procedure set out in Guidelines 281/20 . The Commission recognised the complexity of the case by constituting an ad hoc committee to consider the request. The ad hoc committee  carried out its role by providing input about the social context, which is appropriate in the context of the social definition of disability under the CRPD. Regarding the complainant’s concern that the ad hoc committee had insufficient knowledge of the family and disregarded evidence relating to the potentially serious outcomes from a COVID-19 infection,  the Ombudsman notes that the social worker in the case had gathered views directly from the family and included them in the report to the Commission. Guidelines 281/20 do not include provisions about how an applicant should be consulted during the process, including in compelex cases involving an ad hoc committee, but it is clear that the social worker should come to their own conclusions in writing their report. The Commission provided reasonable explanations regarding the distinction between the assessment of a serious illness and the assessment of disabilities.

27. Regarding the Commission’s argument that the complainant failed to provide a certificate from the European School, the Ombudsman notes that Guidelines 281/20 do not stipulate that a certificate is required.[8] There may be other ways to ascertain that the European School cannot cater for a child’s needs. However, given that this was only one aspect of the assessment in this case, the Ombudsman will not pursue this matter further.

28. Overall, the Ombudsman finds no indication of a serious procedural error by the Commission in the case.

The Commission’s substantive assessment

29. In its reply to the administrative complaint, the Commission concluded that the medical officer had conducted a thorough review of the medical documentation submitted and that there was no manifest error of assessment in the decision not to grant aid.

30. According to Guidelines 281/20, the medical officer should make their assessment “based on the medical report(s) and/or certificate(s) received”. The medical certificate submitted by the complainant to the Commission in support of his request is brief. It sets out the diagnosis and describes how it affects the child’s daily life. The child’s autonomy is nevertheless described, in all areas, as him being able to complete actions and activities “unaided, habitually and correctly” (the highest level of autonomy).  The certificate noted the child was ”susceptible to infections” and recommended “home-schooling”. The doctor assessed the child’s disability at 30%. While, in his complaint to the Ombudsman, the complainant made frequent references to medical studies and guidelines indicating the risk from a COVID-19 infection to a person with a heart condition, the medical certificate the complainant submitted in support of his application did not reference such studies, nor did it mention COVID-19.

31. It is clear from Guidelines 281/20 that the medical officer should make an ‘assessment’; that is, that their role is not only to accept any conclusions made in the medical reports or certificates provided by the applicant. As mentioned above, the Ombudsman cannot call into question the medical assessment itself. In this case, based on the limited information provided in the certificate in question, the Ombudsman finds no indication of a manifest error of assessment.. There is nothing to suggest that the assessment failed to take into account the social factors of the case, namely the schooling needs of the children and the pandemic situation.  The existance of a disability, taking into account the social definition, would appear to depend on whether the child can go to school or not. This is a medical assessment and not for the Ombudsman to make. Guidelines 281/20 rely on a 20% threshold for deteriming eligibility for aid and, therefore, this was the criteria applied by the Commission. While the Ombudsman appreciates the Commission’s view that it must apply the rules in place, she will make a suggestion for improvement in regard to the use of this threshold in the future (see further assessment below).

32. Guidelines 281/20 are based on Article 76 of the Staff Regulations, which sets out that aid may be granted to officials or their family members who are in a particularly difficult position as a result of a disability, among other factors. The Commission provided reasonable explanations as to why it was not possible to grant the complainant exceptional aid even though he did not meet the conditions set out in Guidelines 281/20.

33. Based on the above, the Ombudsman finds that there was no manifest error in how the Commission assessed the request for aid under Article 76, or in how it assessed the complainant’s administrative complaint.

34. The inquiry focussed on how the Commission handled the request concerning the child with the heart condition. Since there was no manifest error in how the Commission handled this, there was no need to assess separately how the Commission assessed the request related to the sibling, since the reason for requesting aid for this child to be home-schooled was linked to the medical condition of the child with the heart condition.

The use of a disability threshold in Guidelines 281/20

The Ombudsman's assessment

35. It is to be welcomed that Guidelines 281/20 rely on the definition of disability set out in the CRPD and transposed into Article 1(4) of the Staff Regulations.[9]

36. That being said, the 20% disability threshold in Guidelines 281/20 does not derive from the provisions on accommodating the needs of persons with disabilities set out in Articles 76 and 1(4) of the EU Staff Regulations. As the Ombudsman previously found in her inquiry into the double dependent child allowance for staff members with children with disabilities[10], this threshold approach appears to be at odds with the EU administration’s obligations under the UN CRPD.

37. The approach currently applied by the Commission means that children whose degree of disability is deemed to be less than a certain percentage are automatically considered ineligible for aid foreseen under Article 76. Automatically excluding such children from consideration is arbitrary and unreasonable, and does not follow from the applicable legislation or the EU’s obligations under the UN CRPD. Article 76 of the Staff Regulations refers to the “particularly difficult position” of the applicant, and makes no reference to the degree of disability.

38. The Ombudsman further notes that the medical scale used by the Commission’s medical officer to assess disability is the European Assessment Schedule for Physical and Mental Impairments[11], which dates back to 2003, before the EU acceded to the UN CRPD. The Ombudsman questions if this scale is still fit for purpose.

39. Furthermore, point 5.2 of Guidelines 281/20 refer to “a degree of impairment which, in interaction with various barriers, hinder the full and effective participation in society on an equal basis with others”. This approach separates the degree or percentage of impairment from social conditions or barriers, whereas the CRPD calls for a comprehensive evaluation that considers both the impairment and the barriers faced. Instead, Guidelines 281/20 should consider the potential barriers to full and effective participation in society as a criterion in themselves, and not dependent on an arbitrary degree of disability.

40. According to the Charter of Fundamental Rights of the EU, all people have the right to free compulsory education.[12] To this end, the European School system provides EU staff members the possibility to ensure their children receive an education in their native language, with no upfront school fees.

41. In certain cases, the European Schools may not be able to accommodate the needs of children with disabilities (or with conditions or illnesses, which are recognised as disabilities). The families of these children may then need to find other education options. Given the costs that may be involved in such education options, the EU institutions may make use of the aid foreseen under Article 76 of the Staff Regulations, with a view to guaranteeing the right of these children to free compulsory education.

42. However, as Article 76 of the Staff Regulations is currently implemented by Guidelines 281/20, children with a disability that is assessed as being below the arbitrary 20% threshold, but whose special needs the European Schools cannot accommodate, are not eligible for the aid foreseen under Article 76. The Ombudsman will make a suggestion for improvement below to address this.

43. In this context, the Ombudsman draws attention to the fact that, following her solution proposal in the inquiry referenced above, the Heads of Administration of the EU institutions have revised the Guidelines for double child allowance applications in disability cases and have removed the 20% disability threshold requirement. The Ombudsman believes a similar approach should be applied to Guidelines 281/20.

Conclusion

Based on the inquiry, the Ombudsman closes this case with the following conclusion:

There was no maladministration in how the European Commission handled the administrative complaint.

Suggestion for improvement

The Commission should initiate a process with the Heads of Administration of the EU institutions aimed at revising Guidelines 281/20 to address the issues uncovered in this inquiry. In particular, this implies ensuring that, when considering applications for aid under Article 76 for persons with disabilities, the EU institutions no longer include an arbitrary disability threshold as an exclusionary factor.

 

Emily O'Reilly
European Ombudsman

Strasbourg, 02/12/2024

 

[1] https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A01962R0031-20140501

[2] The Heads of Administration is a forum that brings together the staff members in charge of the day-to-day administrative running of the EU’s institutions, bodies, offices and agencies. It meets on a regular basis and may adopt ‘conclusions’ setting out the approach to practically applying or giving effect to aspects of the EU Staff Regulations.

[3] Heads of Administration Guidelines n° 281/20 for the implementation of aid for persons with a disability [internal document, not public]

[4] Case F-23/10 Allen v Commission ECLI:EU:F:2011:162, paragraph 73: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62010FJ0023&qid=1713776777261

[5] https://www.ecb.europa.eu/careers/pdf/annex_II_staff_rules_ft.pdf

[6] The Inter-institutional Medical Board (CMI) provides advice to the EU institutions, bodies, offices and agencies on medical, health and related issues.

[7] Article 1 of the CRPD defines persons with disabilities as including those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.

[8] Point 6(b) of the Guidelines stipulates that “costs of education at schools other than the European Schools which shall be reimbursed if the Authority has ascertained that the European Schools' inclusiveness policy cannot cater for the needs of the child concerned;”

[9] Point 1.2. of the Guidelines stipulates that “for the purpose of these guidelines, and within the meaning of Article ld(4) of the Staff Regulations, persons with a disability include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others”.

[10] 535/2021/VS: https://www.ombudsman.europa.eu/en/decision/en/166450

[11] https://www.ecb.europa.eu/careers/pdf/annex_II_staff_rules_ft.pdf

[12] Article 14 of the Charter of Fundamental Rights of the EU: https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX%3A12012P%2FTXT