No reduction of basic care contributions from health insurance in case of simultaneous disability insurance’s attendance allowance

Facts

The complainant A. (born 2008) suffers from spinal muscular atrophy (heredo-degenerative disease of the nervous system, congenital condition no. 383).

The SWICA Health Insurance Ltd approved annual contributions for basic care amounting to 104 hours for the complainant starting from 17 January 2017. In February 2020, the children’s home care service reported an increased need of 4.5 hours of basic care per week (with a total care need of 41.5 hours). The health insurance then accessed the files of the disability insurance and found that A. received an attendance allowance from the disability insurance for severe helplessness with an intensive care supplement. The insurance assumed that the attendance allowance fully covered the costs of basic care and demanded repayment of over CHF 11,452.35 for the period from February 2017 to December 2019. However, no repayment was made.

The complainant challenged this decision. The Administrative Court of the Canton of Thurgau dismissed the appeal. Against this decision, A. filed a public law appeal with the Federal Supreme Court and requested the annulment of the contested decision and a finding that no overcompensation exists. Alternatively, a referral back to the lower court for further clarification was requested.

Considerations

The Federal Supreme Court examined whether the combination of basic care contributions from health insurance (benefit in kind under Art. 25a HIA) and the attendance allowance from disability insurance (cash benefit under Art. 42ter InvIA) leads to overcompensation and thus justifies a reduction of care contributions.

1. Principle of congruence under Art. 69 para. 1 GSSLA
Art. 69 para. 1 GSSLA prohibits overcompensation and restricts the consideration of overlapping benefits to those of the same type and purpose. The Federal Supreme Court emphasises that the law distinguishes between benefits in kind and cash benefits (Art. 14 et seq. GSSLA) and that congruence must be examined both functionally and materially. The previous case law, which focused on the congruence of care effort, has been abandoned. Instead, it is now decisive whether the benefits are congruent in nature and effect.

2. Functional and material congruence
The basic care contributions from health insurance are benefits in kind aimed at proactively compensating for health-related deficits in self-care and stabilising the state of health. The attendance allowance from disability insurance, on the other hand, is a cash benefit providing financial compensation for the effort involved in assisting with daily living activities. The two benefits are functionally different and therefore not congruent within the meaning of Art. 69 para. 1 GSSLA. There is also no material congruence, as the basic care contributions cover specific, medically prescribed care services, while the attendance allowance is granted in a lump sum and is not linked to the actual care effort.

3. Relationship between Art. 69 para. 1 and para. 2 GSSLA
Part of the legal doctrine takes the view that Art. 69 para. 2 GSSLA leads to a global method that relativises the principle of congruence under para. 1. The Federal Supreme Court rejects this view. Para. 2 merely regulates the overcompensation limit for cases of loss of income and additional costs without affecting the…