Facts
This decision concerns a dispute between the Federal Social Insurance Office (Bundesamt für Sozialversicherung) and Scotoni, as well as the Disability Insurance Appeals Commission of the Canton of Zurich. The main issue is to determine from what point in time the right to the disability allowance arises. According to Art. 42(1) InvIA, insured persons domiciled in Switzerland who are disabled are entitled to a disability allowance. Art. 42(2) InvIA defines disability as the permanent need for the assistance of third parties or personal supervision due to the disability in order to perform the ordinary acts of life. Art. 42(3) InvIA provides that the amount of the allowance is determined according to the degree of disability. Art. 35(1) OAIA stipulates that the right to the disability allowance arises on the first day of the month in which all the eligibility conditions are met.Considerations
The Federal Court holds that, contrary to Art. 43bis(2) OASIA, the law does not provide for a waiting period for the right to the disability allowance under disability insurance. However, Art. 42(2) InvIA requires that the insured person be in permanent need of the assistance of third parties or personal supervision. According to consistent case law and administrative practice, this condition is met when the state of disability is largely stabilized and essentially irreversible, i.e. under conditions analogous to the first variant of Art. 29(1) InvIA. The duration requirement is also considered to be met if the disability has lasted 360 days without substantial interruption and is expected to continue (second variant). Accordingly, the right to the disability allowance arises,…