Against the endless reconsideration

Everyone makes mistakes, including the administration. Erroneous decisions can therefore be subject to revision or reconsideration. Such proceedings inevitably affect legal certainty, as insured persons can never be sure of their entitlement to benefits. What are the requirements for subjecting a decision to reconsideration?

The procedural revision (Art. 53 para. 1 ATSG) serves to correct errors of fact. It is permissible if the insured person or the insurance provider discovers new significant facts or finds decisive evidence that already existed at the time of the original decision but could not be provided despite reasonable care (so-called non-genuine novelties, see BSK-ATSG FLÜCKIGER, para. 21 on Art. 53). The facts must be "significant", i.e. they must be suitable to shake the basis of the decision and lead to a different result (BGE 144V 245 E. 5.2).

Reconsideration (Art. 53 para. 2 ATSG), on the other hand, is an instrument for correcting errors in the application of the law. The insurance institution can revert to a legally binding decision if it is undoubtedly incorrect and its correction is of considerable importance (the latter is always the case with permanent benefits, BGE 119 V 475 E. 1c). Undoubted incorrectness exists if there is no reasonable doubt as to the incorrectness of the ruling, i.e. if it is based on a clearly incorrect legal basis or an obviously untenable factual finding (BGE 138 V 147). The facts available at the time of the decision and the legal situation, taking into account the practice applicable at the time, must be taken into account (BGE 147 V 167 E. 4.2 with further references).

The main difference therefore lies in the reason for the error. A revision pursuant to Art. 53 para. 1 takes place if new facts or evidence are available (error in the determination of the facts). On the other hand, a reconsideration pursuant to Art. 53 para. 2 is carried out in the event of an original error due to an error in the application of the law. But what happens if the administration has not sufficiently clarified the facts of the case due to an error in the application of the law (violation of the principle of investigation under Art. 43 ATSG)? The reason for reconsideration here arises from the fact that it was undoubtedly incorrect to make the decision on this factual basis (BSK-ATSG FLÜCKIGER, para. 75 on Art. 53). However, the constellation in which the insurance provider obtains a further medical assessment in which the condition at the time is assessed differently must be ruled out here. In any case, a supplementary clarification of the facts must be excluded in those cases in which the assessment of the claim includes discretionary elements against the background of the factual situation (BGer 9C_427/2014 of 01.12.2014 E. 2.2). It is admittedly difficult to distinguish between a violation of the principle of investigation, which is open to reconsideration, and a mere supplementary clarification of the facts.

For the insured person, the latent possibility of reconsideration means that they have no legal certainty with regard to their entitlement to benefits, which leads to disturbing results, especially in the case of reconsiderations that go back a long way (see, for example, the long absence from the labour market due to retirement, which causes a "practical hopelessness" for reintegration and the illustrative presentation on the reconsideration of UV pensions GEHRING, HAVE 2023, p. 359 f.). However, in its previous case law, the Federal Supreme Court affirmed the admissibility of a reconsideration even after more than ten years (BGE 140 V 514 E. 3.5).

In addition to the loss of the (pension) entitlement, the reconsideration-based cancellation of the pension also leads to the obligation to reimburse the benefit now wrongly received, whereby benefits received up to five years in the past must be reimbursed (BGE 142 V 259; different in disability insurance: see Art. 88bis IVV, according to which an unlawful benefit effect or a breach of the reporting obligation is a prerequisite for the retroactive cancellation of the pension, combined with a corresponding reclaim). The insured person can only submit an application for remission with regard to the reclaim (Art. 25 ATSG).

Recent Federal Supreme Court case law shows that the Federal Supreme Court has recognised the problem of unrestricted reconsideration - at least in connection with adequacy assessments under the UVG (see our previous blog post on BGer 8C_698/2023 of 27.11.2024). What is required here is that a general time limit be placed on reconsideration in order to protect insured persons from unlimited pension cancellations. This would require the administration to make its decisions comprehensively and prudently from the outset. The fact that this should be limited, for example, to UV benefits that can no longer be changed after reaching AHV retirement age (as defined in Art. 22 UVG) falls short here (see SCHMID in Jaso 2023, p. 196).

Art. 25 para. 2 ATSG refers to the limitation periods of criminal law as the maximum possible duration with regard to the limitation period of the claim for repayment. The offence of fraud comes into question here, for example (BSK-ATSG DORMANN, para. 65 on Art. 25). The recovery would then be time-barred after 15 years (cf. Art. 146 in conjunction with 97 para. 1 lit. b StGB). The admissibility of a reconsideration that goes back further than this period appears questionable, particularly with regard to the protection of legitimate expectations (Art. 9 BV) (BGE 143 V 95). If a time restriction is not acceptable to a majority, an analogous application of Art. 88bis IVV could be discussed here as an alternative, whereby an unlawful effect of benefits or a breach of the obligation to notify would be a prerequisite for a retroactive cancellation of benefits. This would mean that incorrect benefit decisions in other branches of insurance could only be amended pro futuro.

This would also take account of the fact that - while the insured person is entitled to a review in the event of a revision, provided the conditions are met - reconsideration is generally at the discretion of the authority. While the amendment to the disadvantage of the insured person is usually carried out without exception, the reverse case, where a reconsideration would have an effect in favour of an insured person, is extremely rare in practice. There is also a considerable lack of evidence in the case of benefit awards dating back more than ten years.