Thomas Norling – summary 2021/22

Parliamentary Ombudsman, supervisory area 3

The issues within my area of responsibility relate to social security and social services, including compulsory care for substance abusers and young people. Supervision in this area of responsibility also covers cases concerning application of the Act on Support and Services for those with Disabilities (LSS) and labour market cases.

In last year’s annual report, I included decisions that illustrated in various ways the problem of authorities sometimes taking actions that lack constitutional support, or where they have not always understood the legal implications. I concluded then that there is a risk of the problems becoming serious when regulations are set aside and more practical solutions are sought.

In this year’s annual report, I have included decisions that underline in various ways the importance of the individual being made aware that an authority has made a decision and what it means for him or her.

Many of the measures on which decisions are made by the authorities are highly intrusive for the individual. That is why it is important for the authorities to make it easier in various ways for individuals to exercise their interests and pursue their cases. This means that it must be clear to the individual that the authority has made a decision.

In the preparatory work for the Administrative Procedure Act, the starting point is that modern administration should be characterised by a clear citizen perspective, with stringent demands for good service. Regardless of whether or not a case involves the exercise of public authority over an individual, all the procedural rules of the Act apply to all case management. In its review, the Parliamentary Ombudsman checks that the principles of administrative law have been followed, but also that the authorities have complied with the formal requirements concerning factors such as documentation, communication and the justification and notification of decisions. When a decision that can be appealed is made, the individual must also be informed of how to do that. An authority cannot choose for itself which requirements of the Act it feels capable of meeting at any given time, or the degree to which the authority feels it needs to comply with the requirements in each individual case.

The term “processing” covers all the measures undertaken by an authority, from the opening of a case to its closure by means of a decision of some kind. The decision can be viewed as a statement on the part of the authority that is intended to have an actual impact on a recipient in the individual case.

In a number of cases involving the Parliamentary Ombudsmen during the year, the question has been whether the authority under review has made a decision at all, or whether it has simple undertaken an administrative action of some kind, for example. From a legal certainty perspective, it is important for the individual, but also the authority, to understand the difference. There are problems here that are not new.

For instance, I have previously criticised the Public Employment Service for failing in its service duty when it failed to inform an individual about the authority’s categorisation of various applicant categories and that other benefits, allowances and support decided upon by other authorities could be affected by the categorisation. When different regulatory systems are interlinked in this manner but managed by different authorities, it places more stringent demands than would otherwise be the case on the responsible authorities to ensure that individuals are assisted in pursuing their interests.

Various initiatives – such as labour market training – under the Job and Development Guarantee programme are one example of an instance in which individuals may have difficulty knowing whether an appealable decision has been made, and what this actually means. It is not uncommon for me to receive complaints against the Public Employment Service relating to the fact that such initiatives have been interrupted by the authority’s decisions. The problem has been to determine what kind of action the authority takes when the initiative is interrupted. The Supreme Administrative Court (SAC) clarified the legal situation in a judgment on 2 May 2022. The judgment concerned the issue of whether it was correct for the Public Employment Service to reject an appeal against a decision to interrupt such an action (SAC 2022, note 12). According to the SAC, a decision to access a particular initiative is based on a discretionary assessment of what is appropriate for the individual to participate in, and of his or her ability to participate in the initiative. In other words, the regulatory framework does not imply a right for the individual to be assigned a particular initiative. A decision to discontinue the initiative in question does not affect either the individual’s referral to the Job and Development Guarantee programme or his or her remuneration for participation in it. The implication of the ruling is that the Public Employment Service makes a decision when it interrupts the initiative, but that a court is prevented from hearing an appeal against the decision for examination of the case.

In one case, I criticised the Swedish Social Insurance Agency for failing to inform a mother of the measure to reduce the number of days of parental benefit after her child’s fourth birthday when the reduction was due to the fact that days were reversed following a recovery of funds against the father. I noted that an amendment in a parent’s days of parental benefit has no independent legal effect in itself but may affect the parent’s planning of his or her leave to care for the child and his or her leave under the Parental Leave Act. I was therefore of the opinion that such an amendment constituted a decision in a case. The Swedish Social Insurance Agency should therefore have notified the mother of the amendment (ref. no. 4734-2019).

There are also other factors that may make it difficult for the individual to understand whether the authority has actually made or intends to make a decision on a case. The problem in this case may be due to the fact that the individual has not been notified of the content of a forthcoming decision and has not been given the opportunity to comment on it (ref. 455-2020). However, it may also be related to the way in which the decision is drafted; that it lacks a clarifying reason for the decision, for example. What is covered by a decision must be stated clearly if an authority has made several decisions in a short period of time that relate to different periods. Furthermore, it is important for an authority to be clear about the difference between turning down and rejecting an application, and that an application is rejected only when it is not possible to examine it on its merits (ref. no. 5429-2019).

Another difficulty that I have noted in a number of cases during the operating year relates to provisional decisions made by the authorities; that is to say, decisions made during the processing of a case pending a final decision being made by the authority. In one case concerning entitlement to sickness benefit, the Social Insurance Agency had made provisional decisions on eleven occasions. On only two of these occasions was the individual informed that the decisions were provisional. The large number of decisions in the case showed that processing had not taken place with the required promptness, and that the individual had spent longer than was necessary uncertain about the authority’s final assessment (ref. no. 513-2020). In the spring of 2022, I performed an inspection of the Swedish Social Insurance Agency in order to follow up on this decision and other matters, and to examine the authority’s handling of provisional decisions in cases relating to sickness benefit (see the report on case no. 1551-2022).

A very common problem for which Parliamentary Ombudsmen often have reason to criticise the authorities is that processing takes a long time. and that individuals are not told when a decision can be expected. In a decision concerning the Swedish Pensions Agency, I was critical of the Agency’s processing times in cases concerning housing supplements. Although I had already directed severe criticism at the Swedish Pensions Agency in 2019, there was reason for me to question whether the measures undertaken were sufficient (ref. no. 5920-2020). In another case, I criticised the Swedish Pensions Agency for its lack of accessibility and service (ref. 568-2021). In that decision, I stated that a key element of the requirements defined for good administration is that an individual who contacts an authority should not only receive a decision within a reasonable time, but also that he or she should also be able to get in touch with the authority with regard to the decision. In this context, I would like to refer to a decision made by my colleague, Parliamentary Ombudsman Per Lennerbrant, which he has included in this year’s annual report (ref. no. 3869-2019). The case in question related to recovery of funds; that is to say, a decision that was onerous for the individual and that was made following an individual assessment. A decision of this nature on recovery of funds is such that the individual typically has an interest in knowing who made the decision. Based on the citizen’s perspective that should characterise the public administration, Parliamentary Ombudsman Per Lennerbrant was of the opinion that the name of the decision-maker should be indicated directly in the document which is used to notify the individual of the decision to recover the funds. The Swedish Pensions Agency was criticised as the notification sent to the individual did not indicate the name of the decision-maker.

Finally, I would like to mention an extensive project that I ran in the spring of 2022 and which related to the issue of how social services in six major municipalities process cases relating to restricted access under Section 14 of the Act with special provisions regarding the care of young persons, LVU (ref. no. 822-2022).

A decision to restrict a child’s contact with their guardian or parent must be considered carefully and be necessary for the purpose of LVU care. The deciding factor should be what is best for the child. I was critical of factors such as the fact that the municipalities’ decisions were not always sufficiently clear on the matter of how access had actually been restricted. For instance, whether the decision was to be permanent or temporary was not clear. Moreover, in some cases the decision did not answer key questions about when and how often contact could take place, how long it could continue on each occasion, or whether it was conditional; by requiring a support person to be present at the contact sessions, for example. Social Welfare Boards also have the power to restrict the guardian’s or a parent’s contact with the child over the phone or by letter, and this must of course be stated in the decision, if necessary. I found that some of the decisions reviewed were unclear in other ways as well. In the decision, restrictions according to the rules were mixed with various kinds of rules of conduct; for example, that a certain activity should take place during each visit, or that a guardian or parent should not speak badly of the family home or raise questions with the child about moving home. I was critical of the fact that the boards did not make a distinction in this respect. When other rules are introduced which the guardian or parent has to comply with during the contact session itself, he or she may be under the mistaken impression that these rules are also part of the access restriction that has been decided. For the boards to contribute to uncertainty in this manner is unacceptable and should be avoided, not least for reasons of legal certainty.