Facts
The insured person, born in 1966, had received a half disability pension from the Social Insurance Institution of the Canton of St. Gallen (IV office) since 1 January 2010, and, from the same date, supplementary benefits (EL) from the compensation fund of the same institution.
In the context of a pension revision, the insured person asserted a deterioration in his health on 21 December 2011. The IV office rejected the application on 6 May 2015. The Cantonal Insurance Court of St. Gallen set aside this decision on 3 August 2017 and granted the insured person a three-quarter pension from 1 December 2011. It found that since 2011 the insured person had been able to work at 40% capacity in an adapted activity (degree of disability 68.8%).
The compensation fund recalculated the EL retroactively from 1 December 2011 and imputed a hypothetical earned income of CHF 12,860 from 1 September 2015 and from 1 January 2018. It rejected the objection on 18 January 2018.
The cantonal insurance court upheld the appeal on 5 March 2019, denied the imputation of the hypothetical income, and remanded the matter to the compensation fund for a new decision and for the implementation of a reminder and reflection-period procedure. It reasoned that the insured person had been entitled to rely on the statements of his treating psychiatrist (100% incapacity for work) and was therefore not obliged to seek employment.
The compensation fund filed an appeal in public law matters with the Federal Supreme Court, requesting that the lower court's decision be set aside insofar as no hypothetical income had been imputed, and that the matter be remanded for the determination of EL with the imputation of a hypothetical income under Art. 14a para. 2 let. c SBO. The insured person requested dismissal of the appeal and legal aid; the lower court likewise requested dismissal; the FSIO waived its right to comment.
The question to be examined was whether the cantonal court had, in accordance with federal law, denied the imputation of hypothetical earned income under Art. 14a para. 2 SBO from 1 September 2015 and from 1 January 2018.
Considerations
The Federal Supreme Court first affirmed the admissibility of the appeal. The remand with binding instructions substantially restricts the compensation fund's room for assessment, so there is an irreparable disadvantage within the meaning of Art. 93 para. 1 let. a FSCA, regardless of whether a final or interlocutory decision is involved.
Under Art. 14a para. 2 SBO, for invalids under 60 years of age with a degree of disability of at least 40%, a minimum earned income is imputed. If this threshold is not reached, the presumption of a waiver of income under Art. 11 para. 1 let. g SBA applies. This presumption may be rebutted by proving reasons unrelated to the disability. The EL bodies are bound by the IV's assessment of disability, since they do not have the specialist qualifications to assess it independently and contradictory assessments are to be avoided.
The medical certificate of the treating psychiatrist does not constitute a reason unrelated to the disability, since it was the subject of the evidentiary assessment in the IV proceedings. Moreover, the duty to mitigate damage is a general principle of social insurance law. It is incompatible with this duty to leave residual work capacity unused during ongoing pension revision proceedings, as Art. 14a para. 2 SBO would otherwise be deprived of its purpose. The two expert opinions (Dr. med. [B.] and RAD) both assumed a 40% capacity for work, which the cantonal court did not take into account. The compensation fund had also already asked the insured person to seek employment on 13 May 2015. The insured person did not demonstrate any job-seeking efforts. The presumption of a waiver is…