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Pflegegeld-Prüfer

Pflegegeld-Bescheid too low: court action (Klage), not Einspruch (objection)

Many people look for a way to object (Einspruch). But in Austria there is no Einspruch and no Widerspruch against the Pflegegeld-Bescheid (official decision on the long-term care allowance). Instead, there is the court action at the Arbeits- und Sozialgericht (Labour and Social Court). Here is what to do.

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This guide is not legal advice. It explains the usual way; the court makes the binding decision. Get advice for your case.

The key points in brief

  • Deadline

    3 months from delivery of the Bescheid, cannot be extended.

    ASGG § 67 Abs 2

  • Court

    The Arbeits- und Sozialgericht; in Vienna the Arbeits- und Sozialgericht Wien, elsewhere the Landesgericht (regional court).

  • Costs

    No court fees, no lawyer required in the first instance, and the court action can be filed without a set form.

  • Level secured

    If the Bescheid granted a level, the court action cannot lower it.

    ASGG § 71 Abs 2

Step by step

  1. Note the delivery date and work out the deadline

    Write down when the Bescheid was delivered (Zustellung). The deadline for the court action ends 3 months later (ASGG § 67 Abs 2). If the last day is a Saturday, Sunday or public holiday, the next working day counts (ZPO § 126). If the Bescheid was held for collection at the post office (hinterlegt), the first day of the collection period counts.

  2. Request the Gutachten

    Request the Gutachten (assessment report) for the Bescheid from the insurance institution, usually the Pensionsversicherungsanstalt (PVA, Pension Insurance Institution). It shows which care tasks were counted and with how many hours. That way you can see what is missing or set too low.

  3. Compare daily life with the Gutachten

    Go through a normal day, from getting up to the night. What does the person need help, guidance or supervision with? What of this is missing from the Gutachten? Pflegegeld-Prüfer helps with this: it recalculates the level from your description.

    Check my Bescheid

  4. Get advice

    The Arbeiterkammer (Chamber of Labour) advises and represents its members. Disability associations such as KOBV and ÖZIV also advise and represent their members in court in the first instance. A care counselling service helps with questions about daily life and the application.

  5. File the court action

    File the court action with the Arbeits- und Sozialgericht before the deadline ends. No set form is needed: who is suing, against which Bescheid, and that you are asking for a higher level. Enclose the Bescheid. There are no court fees, the insurance institution pays for the Gutachten, and in the first instance a lawyer is not required. You only have to pay back costs to the insurance institution if you sue frivolously, delay the proceedings or use deception (ASGG § 77 Abs 3).

  6. During the proceedings

    Keep a care diary (Pflegetagebuch)

    Until the assessment visit (Begutachtung) ordered by the court, write down when you help with what and how long it takes, also at night. This shows a need that varies, and it helps you not to forget anything at the assessment visit.

  7. Prepare for the assessment visit

    In the proceedings, an expert appointed by the court does the examination. Prepare a list of the care tasks, and bring medical reports and the care diary. At the assessment visit by the insurance institution, a person you trust (Vertrauensperson) may be present and is heard (BPGG § 25a Abs 1).

What a court action can achieve

If the Bescheid granted a level, this Pflegegeld counts as acknowledged once the court action is filed and continues to be paid; the court can confirm or raise the level (ASGG § 71 Abs 2). Exception: if the insurance institution decides again during the proceedings because circumstances have changed, this protection does not apply to that extent (ASGG § 71 Abs 3). After a rejection, nothing is secured.

What usually matters most is the Gutachten in the proceedings. There, a prepared, precise description of daily life counts for more than witnesses.

Court action or application for an increase?

The court action is aimed at a Bescheid that was already wrong when it was delivered. If the condition has become significantly worse since then, the way is an application for an increase (Erhöhungsantrag) to the insurance institution (BPGG § 9 Abs 4).

Within one year after the decision has become final (Rechtskraft), a new application is only dealt with if you credibly show a significant worsening (BPGG § 25 Abs 4).

Where to get help

Is your level right?

Describe a normal day. The checker assigns your sentences and works out whether the level in the Bescheid fits.

Check my Bescheid