Supreme Administrative Court allows cheaper self-health-insurance for students

4. March 2021
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Won by the ÖH: With the legal support of the ÖH, the student is awarded the more favorable student self-insurance after a long legal dispute and the difference is reimbursed retroactively.

Student V begins his doctoral studies in the summer semester of 2015 and wants to obtain health insurance through the student self-insurance plan. This health insurance is less expensive than the general self-insurance in health insurance and is available to students by law if they meet some requirements. Since age is not a factor in student self-insurance, this health insurance can be a good and affordable alternative, especially for older students and for students who no longer receive family allowance.

The regional health insurance fund (now the Austrian Health Insurance Fund) responsible for V’s application at the time rejects his application. The reason was that he had not started his doctoral studies within 12 months of completing his master’s degree. According to the authority, this is a prerequisite that must be met when receiving the student grant, but also when claiming the more favorable student self-insurance rate.

Instead of the amount provided for Student Self-Insurance, he is prescribed the monthly amount of General Self-Insurance in Health Insurance. For financially weak policyholders, the monthly maximum amount for general self-insurance can be reduced to a quarter, i.e. to about € 100, upon request. This minimum monthly amount is set for V. But that’s still about twice as expensive as the monthly price of discounted student self-insurance.

V inquires at the social counseling of the federal representation of the Austrian Student Union (ÖH). The lawyers at the social counseling service take a different view and support V in his further course of action. In a letter to the health insurance company, reference is made to the legal wording of the applicable provisions, the retroactive reduction of the contribution rate and a decision by means of a notice is requested. The rejection has not yet been issued in the form of a notice, which is why it cannot be appealed.

With the help of the ÖH, V lodges an appeal against the decision issued as a result. In its ruling of May 3, 2016 (BVwG of May 3, 2016, G305 2122282-1/11E), the Federal Administrative Court (BVwG) upheld his claim, overturned the health insurance fund’s decision, and clarified that the preferential contribution basis was to be applied to V. The court also ruled that V was not entitled to the preferential contribution basis. Since V does not engage in self-employment or employment during his doctoral studies, the question of a completed preliminary study program is irrelevant.

In its decision, the BVwG comprehensively elaborates on the requirements for student self-insurance. Accordingly
– the additional earnings limit of the Study Support Act (StudFG) is not exceeded,
– a change of study must not have been made more than twice and in each case not later than after the 2nd semester, and
– in addition, the permissible entitlement period according to StudFG must not have been exceeded by more than four semesters without good cause.

The question of whether a course of study has already been completed is only relevant if income above the marginal earnings threshold is earned from gainful employment. Thus, the court concludes that the favorable student rate applies to doctoral student V, who is not gainfully employed.

The health insurance company does not want to be satisfied with this court decision and appeals to the Administrative Court (VwGH). After more than 4 years, the Supreme Court in its decision of 18.09.2020 ([VwGH vom 18.09.2020, Ro 2016/08/0020-4]( rejects the appeal of the health insurance company and agrees with the legal opinion of the BVwG. In the opinion of the Administrative Court, the wording of the law on this legal question is unambiguous, which means that – in contrast to the opinion of the health insurance fund – there is no legal question of fundamental importance:

“Rather, a legal question of fundamental importance does not exist if, as here, despite the absence of case law, there is no need for clarification by the Administrative Court because the law itself provides a clear and unambiguous rule.”

Won by the ÖH: With the legal support of the ÖH, the student is awarded the more favorable student self-insurance after a long legal dispute and the difference is reimbursed retroactively.

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