Double Service Credit for Psychiatric and Healthcare Workers in Ukraine
Every person has the right to retire and receive a pension after reaching the applicable retirement age. Some people retire under the general rules, while others may qualify for earlier retirement if they have worked in harmful or difficult working conditions. In all cases, the right to pension provision is protected by Ukrainian law.
The amount of a pension is calculated according to formulas established by legislation. Although the general calculation principles apply to many types of pensions, certain categories may have specific rules. For example, the amount of a disability pension may be determined as a percentage of the old-age pension calculated for the individual concerned.
Two important components of the pension calculation are the insurance record coefficient and the earnings coefficient. The insurance record coefficient depends on the length of a person’s insurance record, while the earnings coefficient depends on the salary received during the relevant periods of employment.
For this reason, it is important to understand how particular periods of employment are counted towards a person’s service record. As a general rule, one year of employment is counted as one year of service. However, employment in certain institutions and under certain conditions may allow the relevant period to be counted at double rate.
Such employment includes, in particular, work in leprosy and anti-plague healthcare institutions; institutions or departments providing treatment to persons infected with the human immunodeficiency virus (HIV) or suffering from AIDS; other infectious disease healthcare institutions or departments; pathology and intensive care departments of healthcare institutions; as well as institutions providing psychiatric care.
However, in some cases the Pension Fund of Ukraine refuses to count periods of such employment at double rate. The grounds for refusal may vary. For example, the Pension Fund may refer to the absence of clarifying certificates or claim that the institution in which the person worked has not been sufficiently confirmed as a healthcare or other qualifying institution.
This was the situation faced by Ms Sokolova, who contacted our law firm for assistance. The Pension Fund refused to recalculate her pension by counting the relevant period of employment at double rate. The refusal was based on the argument that medical and industrial occupational workshops did not qualify as healthcare institutions.
After analysing the Pension Fund’s refusal, we concluded that there were sufficient legal grounds to challenge it. A statement of claim was therefore prepared and filed with the administrative court. Our legal position was based on the fact that Ukrainian legislation governing psychiatric care does not establish an exhaustive list of institutions that may be regarded as institutions providing psychiatric care. The decisive factor is the nature of the institution’s activities and whether those activities are connected with the provision of psychiatric care.
An analysis of the applicable legislation therefore indicated that the decisive issue for determining whether a particular period of employment should be counted at double rate was the actual performance of work connected with the provision of psychiatric care, rather than merely the formal name or organisational status of a particular healthcare institution.
Ms Sokolova’s work involved the treatment and psychological rehabilitation of persons suffering from mental disorders. In particular, she participated in the treatment of patients through occupational therapy and carried out work relating to persons with mental disorders in connection with labour legislation and other matters. Accordingly, her employment in the medical and industrial occupational workshops was directly connected with psychiatric care because the substance of her work involved the medical and psychological rehabilitation of persons suffering from mental disorders.
After considering the case, the court of first instance dismissed the claim. It concluded that the medical and industrial occupational workshops were not psychiatric healthcare institutions because, in terms of their functions, they were occupational enterprises established to help persons with mental disorders acquire new professional skills and subsequently obtain employment.
We disagreed with this decision and filed an appeal. Following its review of the case, the appellate court concluded that the findings of the court of first instance did not correspond to the circumstances established in the proceedings.
The appellate court agreed that the decisive criterion for counting a period of employment at double rate was work in a specialised healthcare institution or in another institution or organisation, irrespective of its form of ownership, whose activities were connected with the provision of psychiatric care.
The court also noted that an analysis of the relevant legislation demonstrated that the activities of medical and industrial occupational workshops were connected with the provision of psychiatric care, particularly through the treatment of patients by means of occupational therapy. Furthermore, the fact that such workshops operated as separate legal entities did not change the fact that their activities were related to the provision of psychiatric care.
These conclusions formed the basis for a new judgment. The appellate court overturned the decision concerning Ms Sokolova’s pension and required the Pension Fund of Ukraine to recalculate her pension by counting the relevant employment period at double rate in accordance with Article 60 of the Law of Ukraine “On Pension Provision.”
Following the appellate court’s judgment, our law firm secured its prompt enforcement. As a result, Ms Sokolova’s pension was recalculated from the date of her application to the Pension Fund, and the recalculation resulted in a substantial increase in her pension payments.
