Facts

The complainant, born in 1969, worked for [B. AG] from 5 March 1991 to 31 January 2007. On 31 May 2007, he first registered with the IV office in Bern to claim benefits. With a decision dated 30 November 2009, the office rejected his pension claim as his degree of disability was 24 %. Following his appeal, the Administrative Court of the Canton of Bern granted him a three-quarter pension from February 2008 to the end of February 2009 (judgment of 28 May 2010).

On 17 November 2011, the insured person registered again with the IV office. The office obtained a multidisciplinary expert report from the Centre for Medical Assessment (ZMB), Basel dated 23 March 2021. With a decision dated 23 December 2021, it granted him a three-quarter pension from 1 April 2019 (degree of disability 60 %).

On 9 May 2022, the insured person claimed a deterioration in his health status. The IV office obtained various medical reports and statements from Dr med. [C.] , specialist in neurology FMH, and the Regional Medical Service (RAD) of the IV office dated 13 July and 30 December 2022. With a decision dated 6 January 2023, it rejected an increase in his pension, as no ongoing deterioration in his health status had been established and his degree of disability remained at 60 %.

The complainant filed an appeal with the Administrative Court of the Canton of Bern, which dismissed it with a judgment dated 11 July 2023. The complainant appealed against this judgment to the Federal Supreme Court, requesting that the cantonal judgment be set aside and the matter referred back to the IV office for reassessment. He also sought the granting of free legal aid.

Considerations

The Federal Supreme Court examines the admissibility requirements ex officio and with full cognition (Art. 29 para. 1 FSCA). As the appeal is a reformatory legal remedy (Art. 107 para. 2 FSCA), it may not be limited to a purely quashing request. However, a reformatory request is dispensable if the Federal Supreme Court could not itself decide on the merits in the event of a successful appeal, in particular because the necessary factual findings of the lower court are lacking (BGE 136 V 131 para. 1.2, 133 III 489 para. 3.1). The appeal brief indicates that, in the complainant’s view, the lower court should have carried out further investigations. The appeal is therefore admissible.

With an appeal in public-law matters, a violation of law pursuant to Art. 95 et seq. FSCA may be asserted. The Federal Supreme Court applies the law ex officio (Art. 106 para. 1 FSCA). However, it only examines the legal defects asserted in the proceedings (Art. 42 para. 1 et seq. FSCA). The legal question is whether the relevant facts were fully established and whether the principle of investigation and the rules on the assessment of evidence pursuant to Art. 61 lit. c GSSLA were complied with. The same applies to the question of whether the requirements for the probative value of medical reports were met (BGE 134 V 231 para. 5.1).

The lower court correctly set out the legal bases and case law concerning incapacity for work (Art. 7 GSSLA), disability (Art. 8 para. 1 GSSLA) and the rules on revision applicable by analogy to new claims for IV benefits (Art. 17 para. 1 GSSLA, Art. 87 para. 3 InvIO). The lower court found that the contested decision of 6 January 2023 concerned the revision request filed in May 2022 and therefore had to be examined under the provisions in force since 1 January 2022 (transitional provisions to the amendment of 19 June 2020).

The lower court primarily relied on the file assessments by the RAD doctor Dr med. [C.] dated 13 July and 30 December 2022. These met the evidentiary requirements for file reports, as there was a complete medical record and the matter essentially involved the specialist assessment of a medically established fact. The lower court concluded that there was no relevant change in health status within the…