The Central Court of Administrative Litigation number 4 of Madrid has condemned the Institute for the Elderly and Social Services (IMSERSO) to pay an unrecognized victim in Royal Decree 574/2023, of July 4, of thalidomide, the aid established in this Royal Decree for those affected by the medication and which, in this case, amounts to an amount of 748,000 euros.
The ruling, provided by the ‘El Defensor del Paciente’ Association to Europa Press, comes after the Supreme Court (TS) declared in June the nullity of the obligation imposed until then on those affected by thalidomide undergo a new exam to receive said aid, despite already having recognition by an Administration as being affected by this medication.
The case processed by lawyer Ignacio Martínez, who also represents the Association of Thalidomide Victims of Spain (AVITE), opens the door for the recognition of provision of aid for the hundred members of the association who had not received aid due to the criteria imposed in the Royal Decree.
This ruling states that the affected party had been denied the aid that she requested in 2023 from IMSERSO because she lacked the rare disease certificate managed by the Carlos III Health Institute (ISIII) that RD 574/2023 establishes as a requirement in section c) of article 2 to be a beneficiary and that IMSERSO itself required it.
Given this, the affected party alleged that she had requested said documentation from the ISCIII, but this body issued a report in which it explained that could not grant him said certificate because there was no evidence of his inclusion in said registry. In addition, the Institute noted that the Thalidomide Scientific-Technical Committee had evaluated the affected woman and had concluded that she had “congenital anomalies not compatible with thalidomide embryopathy.”
After The TS declared void the requirement to appear in such a registry last Junethe affected person demanded recognition of the benefit, alleging that she meets other conditions that accredit her as a victim of thalidomide and that she already included in her application for aid submitted in 2023.
These documents are the certificate of the degree of disability, recognized by the Territorial Delegation in Malaga of the Ministries of Health and Equality and Social Policies of the Government of Andalusia; the resolution of 80,000 euros by IMSERSO according to the provisions of RD 1006/2010; and the resolution of the Ministry of Health of the Junta de Andalucía that recognizes its inclusion in the Autonomous Register of Persons community residents with connatal anomalies caused by thalidomide.
Cancellation of exams to receive aid
With all this, the appellant demanded an amount of 748,000 euros as aid. This amount was calculated taking into account that the affected person has a 69% disability, which at a rate of 12,000 euros for each percentage point resulted in an amount of 828,000 euros. The 80,000 euros already received under the provisions of RD 1006/2010 were deducted from this figure.
Last June the Supreme Court annulled the obligation that until now was imposed on the victims of thalidomide to undergo a new examination in order to receive help, despite the fact that they had already been recognized by an Administration as affected by this medication.
In this ruling, the magistrates partially upheld the appeals presented by AVITE and five people who have been recognized by the Government of Andalusia as victims of those affected by said drug. Thus, the Contentious-Administrative Chamber has declared the nullity of articles 2.c), 6.h, 8.2 section c) of article 2 of Royal Decree 574/2023, of July 4, which regulates the granting aid to people affected by thalidomide in Spain during the period 1950-1985. The articles in question imposed the obligation to subject those affected to a new examination.
The appellants defended that imposing by Royal Decree a requirement to be a beneficiary of the aid that was not present in the law represented a violation of this and the principle of normative hierarchy. They also insisted that undergoing a new verification examination could lead to the loss of the status of affected persons, which they had obtained regularly and which they had held throughout this time.
The Supreme Court pointed out that section c) of art. 2 of Royal Decree 574/2023 imposes a requirement that does not appear in additional provision 56 of Law 6/2018. Therefore, «the circle of those who can receive aid is more restricted with the development regulation than with the developed law. And this exceeds what is proper to an executive regulation. The appealed regulatory norm thus violates the principle of normative hierarchy», he highlighted.
The judges, however, stated that the parties do not dispute that the State can legitimately establish aid to those affected by thalidomide and manage it directly. «And of course the State can regulate means of verifying that aid applicants are effectively affected for thalidomide,” they expressed.
«But this does not authorize it to ignore the acts that the autonomous Administrations – in the exercise of their powers and, in particular, those related to social assistance – may have adopted in the past to recognize the condition of being affected by thalidomide“To the extent that such acts of recognition were – and continue to be – in accordance with the law, the State cannot now avoid them,” they stressed.
#IMSERSO #sentenced #pay #euros #victim #thalidomide
