Care allowance: the public administration must use unambiguous selection criteria with "reasonable" effects

At a time of much discussion of the new regional rules on the care allowance, the Council of State has published a very interesting interim order on the subject. The question arises from an interim appeal against an order of the Regional Administrative Court of Puglia, Bari, brought by a person who had applied for access to the care allowance for persons in conditions of very severe lack of self-sufficiency, for the year 2018/2019. The care allowance is a measure of support for a person with a very severe lack of self-sufficiency and for that person's family, in the form of cash transfers to support the income of the household in which the person lives. It is therefore a payment of fundamental importance for persons affected by very severe disabling conditions. The applicant's application was assessed as "eligible for funding, but not fundable", on the basis of the score awarded. Several points were in fact "deducted" which, if correctly awarded, would have allowed the person concerned to receive the benefit. The local health authority, the administration responsible for the investigative stage of assessing applications on the basis of the criteria set by the Region, decided not to award a further twenty points to the application. In particular, the points consequent on the non-self-sufficient person's receipt of home rehabilitation care were not awarded. According to the administrations involved, the fact that the person concerned had finished the rehabilitation services a few days before publication of the Notice concerning the care allowance for the year 2018/2019 did not allow the relevant scores provided for by the call to be awarded. All of this by reason of an incorrect interpretation of a clause of the public notice which provided, for the award of the relevant score, that receipt of rehabilitative care measures had to be already in being on the date of publication of Regional Council Resolution no. 1502/2018 (which took place on 4 September 2018). The citizen, who considered his interests harmed, instructed Attorneys Pasquale Trigiante and Alessandra Casamassima, who fully took up the client's case, also by reason of the nature of the question, bringing an action before the Regional Administrative Court and seeking an urgent interim measure, pending determination of the merits. The applicant's argument is that the clause "already in being on the date of publication of the public notice" must be understood as referring receipt of the rehabilitative care measure to the year covered by the care allowance. This is so as not to create an obvious inequality of treatment between persons in conditions of profound hardship. The Regional Administrative Court nevertheless dismissed the interim application.

Nothing remained but to apply to the Council of State which, by a very interesting order, allowed the interim appeal and admitted, with reservation, the applicant's application to receive the benefit. According to the Council of State, "the interpretation given by the administration (and not the criterion itself), in its application, produces unreasonable effects, in so far as, instead of giving weight to the existence of a condition of the call (having been a recipient of rehabilitation services), it gives weight to the merely chance and insignificant factor of that condition still being present on the day the call was published".

Order of the Council of State

Order of the Council of State

In substance, that is what had always been argued in the action. We await the outcome of the proceedings before the Regional Administrative Court, aware, however, that the ruling of the Council of State, although with the "limits" proper to the interim stage, constitutes a significant success in relation to so sensitive a matter.