Thomas Norling - summary 2018/19

Parliamentary Ombudsman, supervisory area 3

JO Thomas Norling. Foto: Pernille Tofte Photographer: Foto: Pernille Tofte

My supervisory area encompasses social services, social insurance and cases concerning the implementation of the Act concerning Support and Service for Persons with Certain Functional Impairments (LSS). Supervision within this area also includes labour market matters. The government agencies that belong to this supervisory area include Försäkringskassan, the Pensions Agency and Arbetsförmedlingen. A very large proportion of complaints concern the area of social services and the activities of municipal social service departments.

During the year, supervisory area 3 received 2,614 complaints, which is comparable to the previous year. 2,573 complaint cases were decided on during the year. Of the completed cases, 852 (33 per cent) were decided on by delegated heads of division. The majority of the division’s work (approx. 49 per cent) concerned the social services area.

During the year, four initiatives (including inspections) were established within the supervisory area. The OPCAT Unit has also carried out four inspections within my area at homes run by the National Board of Institutional Care. On four occasions during the year, I have taken over, or decided to initiate, an enquiry due to a suspected crime committed by officials under my supervision. The number of referral responses came to nine.

In last year’s annual report, I chose to almost thematically include decisions illustrating the authorities’ difficulties in ensuring the prudent processing of sensitive privacy data. In this year’s report, my selection has to some extent been governed by the fact that I have devoted special attention this year to complaints regarding the authorities’ failure to comply with the provisions of Chapter 1, Section 9 of the Instrument of Government regarding objectivity and impartiality, i.e. the principle of objectivity.

In administrative law, the principle of objectivity prohibits authorities from considering any other interests than those which they have been tasked to uphold, or from basing their decisions on considerations of circumstance other than those which may be considered in the assessment of a matter pursuant to applicable law. As of 1 July 2018, the principle of objectivity is also expressed in Section 5 of the Administrative Procedure Act (2017:900). This too has contributed to my focus during the year on the issue of how the authorities in my supervisory area fulfil the requirements for objectivity and impartiality.

A review of previous years’ annual reports clearly shows that the principle of objectivity is brought up relatively often within the Parliamentary Ombudsmen’s supervisory activities. It can furthermore be noted that it is not only conflicts of interest that are reported. The selection of decisions that I have chosen for this year’s annual report show in some sense that individuals pay attention to the authorities’ actions and they know how to make a complaint to the Parliamentary Ombudsmen when they believe that an authority is not being objective, or in other respects not living up to the principle of objectivity.

Labour Market

In this year’s annual report, I have only included one decision concerning Arbetsförmedlingen’s processing (ref. no. 3409-2017). This does not mean that there are no other examples that give rise to some concern regarding consistent compliance with the fundamental administrative legal requirements. Complaints to the Parliamentary Ombudsmen often concern elements of the processing that are central to legal security. For example the requirements for service and availability, documentation, communication of documents and data, and justified decisions. I see that there is still a great need within the authority to develop the legal management and support. What has emerged in my review of Arbetsförmedlingen prompts a reminder of the responsibility that the authority management has for ensuring that such development takes place.

From the labour market area, I have otherwise chosen to include two decisions on authority measures taken in violation of the principle of objectivity.

The first decision (ref. no. 8418-2017) concerns the Work Environment Authority’s advertising campaign in which individual employers described the actions they take to prevent mental illness in the workplace. These adverts were available on the authority’s website and were also published in various media. In my decision, I noted that the information from authorities to the public is subject to the requirements for objectivity and impartiality. The information must therefore not be skewed for the benefit of the authority, or anyone else. In the matter, the Work Environment Authority stated that the overall purpose of the adverts was to fulfil the authority’s information and communication responsibility. In my opinion, the advertising campaign could not be objectively understood as anything other than the Work Environment Authority promoting the employers involved in the campaign. There was thus a risk of the public questioning the authority’s impartiality towards the employers who participated in the advertising campaign, which in itself risks impacting the general trust in the authority as a whole.

The circumstances of the second decision (ref. no. 1671-2019) entailed that during an ongoing dispute between the Ports of Sweden and the Dockworkers Union, the National Mediation Office made a statement regarding the dispute in an opinion article. In my decision, I noted that an authority making a statement in a newspaper article must adhere to the objectivity and impartiality requirements expressed in the principle of objectivity. I found that the opinion article could not be understood in any other way than as an attempt by the Mediation Office to convince the Dockworkers Union to accept the mediators’ offer in the dispute. Considering the state of the negotiations when the opinion article was published, I was of the opinion that outsiders could easily perceive the article as the authority siding with the Ports of Sweden, and there was consequently a significant risk of jeopardising the public trust in the impartiality of both the National Mediation Office and the appointed mediators.

Public disclosure and confidentiality, freedom of expression and of the press

Complaints concerning authorities’ processing of requests to disclose documents are recurrent. A general impression is that completely avoidable mistakes are made simply because the administrators, and sometimes the managers, lack sufficient knowledge of the rules and requirements set out for authorities. The complaints show that individuals often believe that it takes a long time before a confidentiality assessment is made of the requested documents and data.

When it comes to Försäkringskassan’s processing of sensitive privacy data, I noted that the issues that I described in last year’s annual report, regarding the authority sending documents containing confidential data to the wrong people, still remain. Even though Försäkringskassan has taken various measures to rectify these problems, the Parliamentary Ombudsmen still receives these complaints. There is thus cause to issue a reminder that an official who handles confidential information also has a personal responsibility for maintaining confidentiality. I intend to carefully monitor the development and the outcome of the authority’s measures.

Of the 146 complaints concerning public disclosure and confidentiality or freedom of expression and of the press, that have been made to my division over the year, I have chosen to summarise a decision on the “reprisals ban” set out in the Instrument of Government (ref. no. 410-2017). The freedoms of expression and opinion also apply to government employees, and they are one of the conditions for a free public debate regarding the actions of the authorities. The constitutional protection for freedom of speech means that there must be no reprisals against an individual who has exercised this right. In the case in question, a social welfare board had retracted an offer for a municipal employee to work in a residential care home in reference to statements made by the employee on social media. The employee was said to have written posts expressing criticism of Islam and the reception of Muslims. The question was whether the board’s action could be considered an illegitimate reprimand of the employee.

Social insurance

Over the year, 753 cases were registered, which is a very marginal increase compared to the previous year.

This year too, there have been many complaints regarding long processing times. For this reason, I have carried out two inspections at Försäkringskassan, firstly comprising its review activities and secondly the activities concerning insurance coverage cases and cases regarding compensation for costs incurred for care in another country within the European Economic Area (EEA). Since the problems of long processing times remain to an extent that is still troublesome, I intend to return to this issue in various ways in my future supervision.

In the annual report, I have included two decisions concerning the issue of whether the authority has acted in violation of the objectivity principle.

The first decision (ref. no. 8280-2107) concerned the question of whether the Pensions Agency had violated the objectivity principle in the provision of information concerning the termination of a collaboration with a certain fund management company.

The second decision regarding whether a Försäkringskassan official had made statements that violated the objectivity requirement set out in Chapter 1, Section 9 of the Instrument of Government (ref. no. 1855-2018). The administrator had accidentally left a message on the answering machine of an insured person. The message contained swearing and derogatory comments about the insured person involved and about people on sick leave in general. I found that the administrator had demonstrated an inability to remain objective, and additionally that they had acted in a manner that violated both good administrative practice and what can be considered to be correct and respectful behaviour.

From the social insurance area, I have also included a decision (ref. no. 5902-2017) that raises questions concerning the way in which individuals can contact and provide information to Försäkringskassan. The decision also contains statements regarding my view of how Försäkringskassan should handle a doctor’s request for contact in an ongoing sickness allowance matter.

Social Services

During the year, a total of 1,260 social service complaints were registered, which makes social services the Parliamentary Ombudsmen’s single largest area of supervision also this year.

Out of these complaints, 797 cases concerned children, including issues concerning the implementation of the Care of Young Persons (Special Provisions) Act, 424 cases regarding different forms of benefits, and 39 cases concerned issues regarding the Care of Substance Abusers (Special Provisions) Act.

Social Services Act

Out of the ten decisions from the social services area, that I have included in the annual report, four decisions concern matters regarding children’s access to a parent or guardian in different situations. Two of these decision concern the possibilities and formal requirements for decisions on limitation of access (ref. nos. 242-2017 and 7875-2017). Two other decisions deal with the enforcement requirements that apply to judgments on visitation with access support (ref. nos. 2969-2017 and 6168-2017).

One of the summarised decisions regards what requirements that are applicable when the social services issue certificates or statements in various contexts and for different purposes (ref. no. 1258-2017). The case in question involved a domestic violence case worker who had produced two statements upon request from a woman with the aim of using these in a district court case concerning, among other things, access to a child. In situations where the certificate or statement has not been requested by the court, there is a great risk of the board being perceived as biased already by producing a certificate or statement. In this context, it can be added, that the formulation of a statement or certificate must be pursuant to the principle on objectivity. This entails requirements on the authority to remain objective and impartial.

The statutory requirement on objectivity does not only apply to the actual processing of a matter, but also to how the authority’s actions have been perceived.

In addition to these decisions, I would like to highlight a decision that resulted in criticism of a social welfare board for failure to provide legal grounds in prohibiting the wife of a resident in a residential care home from spending time in her husband’s quarters (ref. no. 647-2017). There were several problems with the board’s decision. The decision meant that the husband was limited in his use of his tenancy. It also meant that the visitation ban on the wife, without legal grounds, included her husband’s home and associated communal areas. The decision was furthermore made by unauthorised officials and without a time limitation.

Care of Young Persons Act

The annual report summarises six decisions concerning care pursuant to the Care of Young Persons Act. The questions arising in all of these cases regard central issues concerning the rule of law. As an example, I would like to highlight three decisions that partly underline the importance of officials who process cases regarding compulsory care having the required expertise, and partly highlight the difficulties in terms of implementation regarding the provisions in the Care of Young Persons Act regarding the special powers granted to the National Board of Institutional Care in order to provide care or to maintain security at its special youth homes.

In the first decision (ref. no. 5302-2017), my review focused on the matter of whether the youth home in question had failed in its supervision of a girl who was committed to care. The girl, who was 13 years old, took her own life in the youth home where she had been placed pursuant to the Care of Young Persons Act. At the time of the incident, she had been placed in isolation at two youth homes for nearly eight months. One question that I bring up in the decision was whether the home had neglected the provisions concerning care in isolation by leaving the girl alone in the part of the home where she had been placed. Another question was whether the home had failed to act on possible signals that there was a risk of the girl committing suicide.

The second decision concerns a social welfare board that enforced a ruling on care pursuant to Section 2 of the Care of Young Persons Act (i.e. compulsory care due to deficient care) before it had gained legal force (ref. no. 330-2018). This meant that the children involved were in compulsory care without legal grounds for just over two weeks. Separating a child from their parents is a very invasive measure. Enforcing a decision for compulsory care pursuant to the Care of Young Persons Act is therefore a task requiring particular sensitivity and diligence. The investigation in the case showed, among other things, that there were significant knowledge gaps in regard to the regulations in this area, and this appears to be the main explanation for why the judgment was enforced even though an appeal was handed in. In my decision, I also underlined the importance of ensuring that established procedures are known in terms of both content and meaning, and that officials have sufficient knowledge about the legal regulations behind the formulation of such procedures. The understanding that procedures are rarely comprehensive and cannot describe every conceivable situation is also necessary to avoid their incorrect or overly mechanical application.

The third decision (ref. no. 1060-2017), which concerns an unaccompanied minor who as a result of a judgment on compulsory care pursuant to Section 3 of the Care of Young Persons Act (i.e. compulsory care due to the person’s behaviour) was being treated at a youth home, is an example of the need for officials tasked with implementing provisions on compulsory care to have the appropriate expertise. In the case in question, the social welfare board allowed the care of the boy to be discontinued when he turned 18 years old, without a prior investigation and without making a decision to cease care.

Care of Abusers Act

I have chosen to include a decision (ref. no. 550-2018) in the annual report that raises the question of what supervisory responsibilities the National Board of Institutional Care has when a person under care at a home is suspected of taking drugs. The National Board of Institutional Care is responsible for ensuring that a person under care receives sufficient supervision and care for the duration of their time in the home. In line with previous Parliamentary Ombudsmen decisions on the supervision of persons who have been taken into care pursuant to the Act on Care of Intoxicated Persons, I felt that the point of departure for the matter at hand would have to be that a person committed to an home, who is suspected of being under the influence of an intoxicant, must be placed under diligent and frequent supervision. The procedure for supervision and monitoring of a person under care, suspected of being under the influence of drugs, was not followed in this particular case. Even though the person was checked on regularly, he died during the night. Since the staff at the home had not checked for changes in the person’s level of consciousness, the monitoring did not meet the requirements on care and diligence. Additionally, the staff did not have sufficient knowledge of the procedure at the time in question. The National Board of Institutional Care had not ensured that the staff had the expertise necessary to carry out the monitoring tasks that were needed.

Municipal activities according to the Support and Service for Person with Certain Functional Impairments Act

A reoccurring and common reason why individuals file a complaint to the Parliamentary Ombudsmen is that the processing of a case has taken, according to the individual, too long. A decision can be delayed for various reasons, but there must be circumstances to justify the time consumption for a long processing time.

The Parliamentary Ombudsmen has previously determined that it is not possible to establish a set time frame for an investigation of an application for personal assistance. A decisive factor in the assessment is the circumstances of the individual case. Complex cases that require a number of investigative measures can be permitted to take longer than simpler cases. It is therefore important to distinguish between a long processing time and slow processing. The latter means that the processing for some reason, such as inaction by the authority, has not progressed at the expected rate. In those cases, there is often cause to criticise the authority.

During 2016 and 2017, several complaints were received stating that it was taking too long for municipalities to process applications for measures pursuant to the Support and Service for Person with Certain Functional Impairments Act. In several of these complaints, it emerged that the processing time for a case, pursuant to the Act, was more than one year. Considering these complaints, and what had emerged in individual supervisory cases, a more general investigation was initiated into the municipal processing of these cases, focusing on the matter of processing times (ref. no. 7477-2017). Within the scope of this investigation, four municipal boards were inspected and complaints regarding cases of personal assistance were examined. In my decision, I noted that the processing times were not generally long at the inspected boards, even though there were cases with longer processing times. I also stated that a processing time of three to four months in a case regarding personal assistance could be a reasonable benchmark, although not every case will be possible to settle within that period. In the decision, I considered a number of factors that impact on the processing time and on the circumstances that could justify its length.

In closing, I have chosen to highlight a case entailing that a decision on the right to personal assistance pursuant to the Support and Service for Person with Certain Functional Impairments Act should not be given a time limit pending a decision from Försäkringkassan in the matter of assistance allowance (ref. no. 1696-2018). In previous decisions, the Parliamentary Ombudsmen has questioned the practice of measures pursuant to the Act always being time-limited. In the mentioned decision, I have added that if the board deems it necessary to set a time limit for a decision regarding the right to a measure pursuant to the Support and Service for Person with Certain Functional Impairments Act, it is important that the period of validity for the decision be clearly stated. This gives the individual the opportunity to hand in a new application for continuation of the measure in good time before the decision expires. If the board ties the validity period of the decision to the time of Försäkringskassan’s decision, it means that the measure could cease or deteriorate without the board making an independent assessment of whether the individual has a continued need for the measure. Such a practice is not compatible with fundamental predictability requirements.

Updated 11/15/2019