DRC’s Legal Special Alert on Pension Provision and Social Protection: Issue №105

1.Some pension access barriers were removed

Background information: The Office of the Ukrainian Parliament Commissioner for Human Rights has stated that pensions have not been granted to people displaced from Crimea for almost nine years.¹ Back in November 2014, the government decided to suspend the provision of social benefits in the settlements of Donetsk and Luhansk oblasts, until the said territory is returned to the control of the state authorities.² As a result of this, a new practice has emerged, known as 'pension tourism', where people from areas occupied by the Russian Federation were registered as IDPs and travelled to Ukrainian Government-controlled areas to receive their pensions there.³ On top of that, some bureaucratic obstacles were reported, e.g. The Pension Fund of Ukraine requested people to provide an IDP certificate or paper documents from the Pension Fund of the Russian Federation. In 2019, Ukraine’s ombudswoman reported⁴ that more than 450,000 out of the 1.2 million pensioners, living in areas of Donetsk and Luhansk oblasts not under the control of the Government of Ukraine since 2014, do not receive their pensions.

In 2022, the government changed its approach and introduced digital tools that allow people from areas occupied by the Russian Federation and Crimea to access pensions online. However, the challenges persisted. People who reached pension age in areas occupied by the Russian Federation often did not have enough insurance contributions⁵, and their work period in areas occupied by the Russian Federation is not recognised by the Government of Ukraine. Moreover, the Government of Ukraine denounced the Agreement on Guarantees of the Rights of Citizens of the CIS Member States in the Sphere of Pensions (the Agreement) ⁶, leading to uncertainty about how to calculate insurance periods for Ukrainians who worked in the Soviet Union (USSR) and the Russian Federation.⁷

¹Pension payment for persons who worked ¹ Link to the source of information: https://www.ombudsman.gov.ua/report- 2022/sotsialna-derzhava

² Cabinet of Ministers, Decree №595, 2014, Link: https://zakon.rada.gov.ua/laws/show/595-2014-%D0%BF

³ HRW, Ukraine: People with Limited Mobility Can’t Access Pensions, 2020, Link: https://www.hrw.org/news/2020/01/24/ukraine-people-limited-mobility-cant-access-pensions

⁴ Link to the source: https://www.ukrinform.ua/rubric-polytics/2818208-ludmila-denisova-upovnovazenij-vr-ukraini-z-prav- ludini.html

⁵ Insurance experience is a period during which the employer paid insurance contributions to the Pension Fund of Ukraine for the employee. In 2024, the minimum insurance period for women and men is 31 years.

⁶ Cabinet of Ministers, Decree №1328, 2022, Link: https://zakon.rada.gov.ua/laws/show/1328-2022-%D0%BF#Text

⁷ The Agreement was used to calculate period of employment for persons who have been working in CIS Member States. The Agreement, after denunciation, remains in force for persons who was already entitled to pension. At the same time, persons who reached pension age after denunciation of the Agreement were left behind.

However, in April 2024, the Parliament adopted a new law that regulates how the contribution period for work abroad is calculated. This covers contributions made during the Soviet Union era until now.⁸

NB: The recalculation of the contribution period requires relevant application through administrative or court procedure. It is important to increase the level of legal awareness so that individuals can apply for a pension as well as for pension recalculation.

Recent developments: In April 2024⁹ the Verkhovna Rada adopted Law №3674-ІХ, outlining the inclusion of periods of employment outside Ukraine in the insurance period. As a rule, periods of employment outside Ukraine shall be included in the insurance period for persons officially residing in Ukraine, if provided for by this Law or international treaties of Ukraine ratified by the Verkhovna Rada of Ukraine.

Ukrainian legislation on pension provision envisages that pensions should be paid by one State only. This means that person can not be subject of pension provision in two different States simultaneously. If there is no official information exchange, e.g. between Ukraine and the Russian Federation, it is impossible to get documentary confirmation of pension payments from another state. In such case, latest amendments prescribed a possibility of simple written notification. Thus a person notifies the Pension Fund authorities that no pension is received from another state. Such a notification is signed. The provision of incorrect or fraud will lead to subsequent legal consequences. The notification is provided while person is applying for appointment, renewal or extension of pension payment.

• Calculation and pension payment criteria for persons residing in Ukraine, but having a period of employment in the USSR or in foreign states that were part of the former USSR:

Pension provision to persons with a period of employment in areas occupied by the Russian Federation after 19 February 2014 includes the following criteria:

• not receiving a pension from pension authorities of the Russian Federation;
• not being employed in specific professions;
• having sufficient work/insurance experience.

⁸ Verkhovna Rada of Ukraine, Law №3674-IX, 2024, Link: https://zakon.rada.gov.ua/laws/show/3674-IX#Text

⁹ The Law has been signed only in June.

Ukrainians who due to the war or other reasons moved abroad and reached retirement age can apply for a pension remotely, through the Pension Fund's web portal. Three principal criteria should be fulfilled for effective application for a pension:

2.Application processes to certain social assistance programmes have been clarified

On 13 June 2024, the Cabinet adopted Decree №683, reducing some obstacles to accessing certain types of State social assistance. Amendments are aimed at unification and facilitation of the existing application process, i.e.:

¹⁰ The system of electronic interaction of state electronic information resources.

¹¹ The Ministry of Foreign Affairs in response to the request from the Civil Network OPORA, reported that as of June 2023, 8,177 mln Ukrainians were staying abroad. Link to the source: https://www.oporaua.org/viyna/kilkist-ukrayintsiv-ta-yikh-migratsiia-za- kordon-cherez-viinu-doslidzhennia-gromadianskoyi merezhi-opora-24791 . Please, note, that this statistic is referring to all Ukrainians staying abroad, while Centre of Economic Strategy reports on 4,9 million Ukrainians being abroad due to war as of January 2024, link: https://ces.org.ua/ukrainian_refugees_third_wave_research/

3.The Ministry facilitates a personal data-sharing process for receiving assistance

Background information: The Law of Ukraine "On Personal Data Protection" was adopted in 2012 and since that time has not been significantly revised. The central legal requirement in personal data protection is the lawfulness of processing. Each data processing process is carried out based on specific grounds, and the most common grounds is the consent of the individual. Each organisation, including UN agencies and International Non-governmental Organisations (INGOs), should assess the applicability of a particular basis when processing any kind of personal data. In practice, personal data of people of concern is needed for humanitarian actors when it comes to the provision of humanitarian aid. Moreover, such data are required to mitigate the risk of duplication in the provision of humanitarian aid and social assistance. Currently, the government, as a data holder, can share some personal data that are stored in the State registers, but legal basis is needed to authorize this, e.g. memoranda on data sharing and a request on data sharing. The process is not automatized and may take a lot of time.

Recent developments: On 6 May 2024 the Ministry of Social Policy signed Order №230-H, amending Application forms for all types of social assistance and compensation¹². The application form is also aimed at collecting some personal data, necessary for further consideration of the eligibility of applicants for the assistance they applied.

The amendments are aimed at facilitating the process of data sharing with humanitarian actors, providing financial assistance to the recipients of social protection programmes. The Ministry reached its aim by adding one paragraph on data sharing consent. When the applicants sign the application form, they automatically give their consent on sharing personal data with humanitarian actors for the purpose of receiving assistance. No additional personal data collection from people of concern will be required:

NB: Data sharing is still possible only with those agencies that signed relevant memoranda with the Ministry of Social Policy.

4.The Ministry regulates the approach to calculating means-tested eligibility criteria

Background information: The majority of social assistance programmes in Ukraine are means-tested. For means- testing generally used average monthly income, which is calculated per family member¹³. Such calculations are necessary for determining the right of a person to receive social services at the expense of budgetary funds.

Recent developments: On 15 April 2024 the Ministry of Social Policy signed Order №181-H, approving amendments to the Methodology of calculation of average monthly income. Amendments clarified the procedure of calculation, by clearly stating which incomes are not included in average monthly income. This will potentially allow persons at

¹² To unify application process, Ministry of Social Policy adopted unified Application form, that person should sign when applying for different types of social assistance and compensation. The documents are used to apply for more than 40 different assistances, including, assistance to families with children, low income families, assistance to persons with disability, etc. The document is the same for different competent institutions, including the Pension Fund, Administrative Service Centre, Department of Social Protection, etc.

¹³ The family includes persons who live together, have a common life, have mutual rights and obligations and are united based on marriage, blood kinship, adoption, or other grounds.

particular risk to access and apply for means-tested social assistance programmes, such as assistance to low-income families, assistance to single parents, housing and utilities subsidies, etc.

¹⁴ 1 quarter period before the month of application for social assistance.

¹⁵ Minimum salary as of 1 April 2024 is UAH 8,000

¹⁶ This is not applicable to family members who are: in places of deprivation or restriction of liberty, under house arrest, who are subject to measures to ensure criminal proceedings, persons with mental and behavioural disorders, persons who are registered as unemployed and do not receive unemployment benefits, mothers and other persons on unpaid leave, military servants, etc. ¹⁷ Non-governmental organisations

This Legal Alert was produced under the project funded by the European Union through its Civil Protection and Humanitarian Aid Operations.

Some of the terminology used in this issue of the Legal Alert was taken from draft laws or current legislation. The contents of this brochure are the sole responsibility of the author/authors. The views expressed herein should not be taken, in any way, to reflect the official opinion of the European Union or the Danish Refugee Council (DRC). Neither the European Commission nor the DRC is responsible for any use that may be made of the information it contains.