Facts
The complainant, born in 1994 ([A.] , represented by a lawyer), had been receiving a full extraordinary disability pension since 1 May 2013, granted by decision of the IV office of the Canton of Zug dated 13 August 2018. In September 2018 he applied for supplementary benefits (EL).
By letter of 21 November 2018, the compensation office Zug asked the insured person to submit certain documents by 20 December 2018, and, referring to the duty to cooperate, warned that it would not consider the benefits application if he failed to comply. As there was no response, the compensation office issued a decision on 11 January 2019 refusing to consider the application. In the objection proceedings the insured person submitted various documents (bank account statements, rental agreement, 2017 tax return, social service statement, health insurance policies). By objection decision of 21 June 2019, the compensation office maintained its refusal to consider the application.
The Cantonal Administrative Court of Zug dismissed the appeal by judgment of 20 April 2020 (S 2019 101), insofar as it was admissible. It held that the submitted documents were insufficient for assessing the entitlement, in particular because a statement of the insured person's stays in Turkey was missing; the insured person had breached his duty to cooperate.
Before the Federal Supreme Court, the insured person requested that the lower court's decision be set aside and that the compensation office be instructed to consider the EL application. The sole disputed question, to be examined as a question of law, was whether the compensation office should have considered the benefits application.
Considerations
The Federal Supreme Court applies the law of its own motion (Art. 106 para. 1 FSCA) and bases its decision on the facts established by the lower court, unless they are obviously incorrect (Art. 105 FSCA). Whether the newly submitted IV files are admissible (Art. 99 para. 1 FSCA) could be left open, as they were not relevant to the outcome.
Disability pensioners resident and habitually resident in Switzerland are entitled to EL if the recognised expenses exceed the countable income (Art. 4 para. 1 let. c SBA, Art. 10 and 11 SBA). Short stays of up to 92 days at a time do not interrupt benefits; under administrative practice, even a longer stay abroad may have no effect. However, a stay of more than six months in a calendar year without a valid reason results in loss of entitlement for the whole year (margin nos. 2320.01-2340.04 WEL).
In social insurance proceedings the investigation principle applies (Art. 43 para. 1 GSSLA, Art. 61 let. c GSSLA), which is limited by the insured person's duty to cooperate (Art. 28 and Art. 43 para. 2 GSSLA). Refusal to consider under Art. 43 para. 3 GSSLA requires a prior written reminder with notice of the legal consequences and a reasonable period for response. This instrument may only be used with the greatest restraint; it comes into consideration only if an assessment without the party's cooperation is excluded.
The determinative point for whether to consider the application is the state of the file at the time of the objection decision of 21 June 2019, since the administrative procedure was only concluded by that decision (BGE 131 V 407 E. 2.1.2.1). On the basis of the submitted documents, a good deal of information could be obtained: the pension decision, the social service statement with detailed income and expenses, and the bank account statements showing regular withdrawals in the Canton of Zug, which strongly indicate a stay in Switzerland. However, there were noticeable gaps, such as the missing recognition of basic needs and the absence of account debits for the months of 2014.…