Disability pension: minimum contribution period in Switzerland and the lower court's duty to investigate; remittal to the IV office

Facts

The German national [A.] (appellant), born in 1978, who had entered Switzerland on 22 August 2015, applied for disability insurance benefits on 25 July 2017. The IV office of the canton of Aargau (respondent) carried out medical and vocational/earnings investigations and obtained, in particular, an extract from the Individual Account (IK) dated 18 August 2017.

By decision of 24 July 2019, the IV office denied the pension entitlement. It reasoned that the required minimum one-year contribution period in Switzerland (cumulated with two years of contribution periods in an EU country) had not been met before the onset of disability, because the disability had already existed for years before the entry into Switzerland.

The Insurance Court of the canton of Aargau dismissed the appeal against this decision by ruling of 12 June 2020. Based on the IK extract, which recorded contribution periods from August to November 2015 and from June to December 2016, it assumed a contribution period of eleven months in Switzerland. It considered that it was not possible, on the basis of the medical records, to assess the point in time at which the disability had set in, and regarded further medical inquiries as not decisive for the outcome.

Before the Federal Supreme Court, the appellant (represented by counsel) requested that the lower court's ruling be set aside and the case remitted to the lower court, or alternatively that the lower court's ruling and the decision of 24 July 2019 be set aside and the case remitted to the administration for further investigation. He also applied for legal aid. The IV office requested that the appeal be dismissed; the Federal Social Insurance Office waived its right to submit observations.

The subject matter of the dispute was whether the lower court violated federal law by denying the pension entitlement on the ground that the one-year minimum Swiss contribution period had not been met.

Considerations

The Federal Supreme Court examines alleged violations of federal law (Art. 95 let. a FSCA) and applies the law ex officio (Art. 106 para. 1 FSCA), but in principle examines only the complaints raised. The lower court's findings of fact are in principle binding, but may be corrected where they are manifestly incorrect or based on a violation of law (Art. 97 para. 1 and Art. 105 FSCA).

Under Art. 36 para. 1 InvIA, an entitlement to an ordinary pension exists if contributions have been paid for at least three years when the disability set in. For foreign nationals, Art. 6 para. 2 InvIA requires that at the onset of disability at least one full year of contributions has been paid, or that the person has resided continuously in Switzerland for ten years. Disability is deemed to have set in as soon as the type and degree required for entitlement have been reached (Art. 4 para. 2 InvIA, Art. 28 para. 1 InvIA). The minimum contribution period must therefore be met when the insured event occurs.

Under Art. 32 para. 1 InvIO in conjunction with Art. 50 OASIO, a full contribution year exists if the person was insured for a total of more than eleven months and paid the minimum contribution during that time, or has contribution periods within the meaning of Art. 29ter para. 2 let. b and c OASIA. The administration must establish the actual contribution periods ex officio.

The lower court relied solely on the IK extract of 18 August 2017. The file, however, contained indications of further contribution periods, namely a report from a specialist physician dated 26 June 2018 on employment at 50%, and a reference in a social assistance decision to a short-term assignment from 23 February to 9 March 2017. Since the lower court departed from the administration's reasoning and, as the court of first instance on the merits, expressed itself on decisive matters, it should have fulfilled its duty to investigate under Art. 61 let. c GSSLA and undertaken further inquiries, for example by obtaining an updated IK extract.

Since the onset of disability was not assessed in the contested decision and was left open, the fulfilment of the minimum contribution period in Switzerland also could not be conclusively determined. The lower court's decision therefore violates federal law and must be set…