Case: The refusal to transfer to a pension the deceased husband of a Chernobyl liquidator was appealed

Client: widow of the deceased liquidator of the Chernobyl accident, pensioner

Region: Kyiv (the application was considered by the Main Directorate of the PFU in Poltava region on the principle of extraterritoriality)

The essence of the case (problem): The Pension Fund refused to transfer the applicant from an old-age pension to a pension due to the loss of a breadwinner after the death of her husband, a liquidator of the consequences of the Chernobyl accident. The reason for the refusal was that, in the opinion of the Pension Fund, the applicant did not have the necessary insurance experience.

Desired result: Cancellation of the decision to refuse and assign a pension in connection with the loss of a breadwinner in accordance with the Law of Ukraine “On the status and social protection of citizens affected by the Chernobyl disaster.”

Responsible lawyer: Kozhukhov Liubomyr

The Law Office of “Prikhodko&Partners” was contacted by the widow of the deceased liquidator of the Chernobyl accident, who was denied by the Pension Fund to transition from an old-age pension to a pension due to the loss of a breadwinner.

The client was on an old-age pension and after the death of her husband, she applied to the Pension Fund authorities with an application for the appointment of a pension due to the loss of a breadwinner. However, by decision of the Main Department of the Pension Fund of Ukraine in Poltava region, she was refused.

The Pension Fund cited the lack of the required insurance experience as the reason for the refusal. The PFU authority concluded that the applicant’s insurance experience is 22 years, 2 months, and 7 days, while at least 30 years of experience are required to acquire the right to a pension.

During the consultation, we analyzed in detail the materials of the pension case, the provisions of the Law of Ukraine “On compulsory state pension insurance”, the Law of Ukraine № 796-XII, and current judicial practice.

The legal position in the case was based on the following:

• to be granted a survivor’s pension, the deceased’s wife must be an incapacitated family member;
• a family member who has reached retirement age is, in particular, a wife who has reached retirement age according to Article 36 of Law № 1058-IV;
• the law does not make the widow’s right to receive a survivor’s pension dependent on her having a certain length of insurance experience;
• the requirement for having insurance experience applies to the deceased breadwinner, not the person applying for a pension;
• the client has already reached retirement age and received an old-age pension, and therefore meets the criteria for an incapacitated family member.

A legal assistance agreement was concluded between the Law Office of “Prikhodko&Partners” and the client. We prepared and filed an administrative lawsuit to appeal the decision of the Pension Fund.

In the lawsuit, we requested:

• to declare unlawful and cancel the decision to refuse to grant a pension;
• to oblige the Pension Fund to reconsider the application for retirement due to the loss of a breadwinner and to grant a pension.

The court considered the case in a simplified claim procedure and concluded that the Pension Fund’s position contradicts the requirements of the law.

During the consideration of the case, the court established that the client had already reached retirement age at the time of the application and had the status of a disabled family member. Therefore, she had the right to claim a pension in connection with the loss of the breadwinner after the death of her husband.

The court specifically emphasized that:

• the concept of “disabled family member” is defined by reaching retirement age or establishing disability;
• the applicant’s insurance experience is not a criterion for deciding the issue of granting a pension in connection with the loss of a breadwinner;
• the Pension Fund incorrectly applied the norms of substantive law and unjustifiably refused to grant a pension.

The court’s decision upheld the claim.

Court:

• declared unlawful and annulled the decision of the Main Department of the Pension Fund of Ukraine in Poltava region to refuse to grant a pension;
• ordered the Pension Fund to reconsider the client’s application for retirement due to the loss of a breadwinner and to make a decision taking into account the court’s conclusions.

Thus, the court confirmed the right of the widow of the liquidator of the Chernobyl accident to a proper consideration of her application and noted that the applicant’s lack of the necessary insurance experience cannot be a basis for refusing to grant a pension due to the loss of a breadwinner.

After the decision becomes legally binding, our lawyers will ensure control over its implementation and the actual assignment of the appropriate type of pension provision to the client.

This case once again confirms that unlawful decisions of the Pension Fund can be successfully challenged in court, and the rights of family members of deceased liquidators of the Chernobyl disaster are subject to effective judicial protection.

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