Facts

The IV-Stelle of the Canton of Zurich (appellant) and the represented insured person [A.] (respondent, represented by Pro Infirmis Zürich) dispute the amount of the disability insurance pension entitlement. The insured person, born in 1973, received by decision of 9 June 2010 a full pension from 1 August to 31 December 2009 and a half pension from 1 January 2010.

By decision of 20 November 2018 the IV-Stelle reconsidered and revoked the decision of 9 June 2010 and reduced the half pension to a quarter pension. The Social Insurance Court of the Canton of Zurich upheld the appeal by decision of 17 May 2019 and again awarded the insured person a half disability pension.

The IV-Stelle files an appeal in public law matters and requests that the prior instance decision be set aside and its decision be confirmed; it further requests that suspensive effect be granted to the appeal. The respondent requests dismissal of the appeal and legal aid.

The issue is whether the prior instance correctly granted a table wage deduction of 15 % on the disability income. With the deduction, the prior instance determined a disability income of CHF 23'282.- against a non-disabled income of CHF 47'199.- and a degree of disability of 50.7 %. Without the deduction, as made by the IV-Stelle, the degree of disability would be 42 %, and thus a quarter pension.

Considerations

The Federal Supreme Court reviews the application of federal law freely (Art. 95 lit. a FSCA) and is bound by the factual findings of the prior instance unless they are manifestly incorrect (Art. 97 para. 1 and Art. 105 FSCA). The table wage deduction under BGE 126 V 75 is intended to take account of personal and occupational characteristics such as the type and extent of the impairment, age, years of service, nationality or degree of employment. It is not made automatically but must be estimated in the individual case at due discretion and may not exceed 25 %. Whether a deduction is to be made at all is a legal question subject to free review; the amount is a matter of discretion, which can only be corrected in case of abuse, excess or underuse of discretion.

The complaint of violation of the duty to give reasons (Art. 29 para. 2 Cst., Art. 61 lit. h GSSLA) is dismissed. The prior instance clearly referred the 'further restricting factors' to the previously described resilience profile, so the respondent was able to challenge the decision appropriately.

In substance, the requirements for reconsideration of the pension decision of 9 June 2010 are undisputed. A free assessment of the pension entitlements must therefore be made based on the circumstances up to the issuance of the reconsideration decision. However, the prior instance based the deduction essentially on the fact that a deduction had already been granted in 2010 and that the resilience profile had not changed since. It thus did not carry out a free review, which is rightly complained of.

A free review would have had to conclude that no table wage deduction is justified. The sole reason of the prior instance is the resilience profile, according to which only light activities are reasonably required. This is not, however, a ground for a disability-related deduction, since the table wage at skill level 1 already covers a large number of…