Föräldraansvar och barns rätt till assistansersättning - en undersökning av bedömningen av föräldraansvaret vid assistansersättning till barn

Sammanfattning: The right to personal assistance was an innovative form of care introduced through LSS and the provisions on assistance allowance for disabled persons. Concerning children, personal assistance has been crucial for the right for children with disabilities to live and grow up in the family household. In the assessment of a child’s right to assistance allowance, the allowance will not be granted for what is covered by what is considered normal parental responsibility. The principle of normal parental responsibility is regulated in 51 kap. 6 § SFB, and an application of the principle constitutes a limitation of the child’s right to assistance allowance. Furthermore, the principle has been criticized for being ambiguous. This dissertation describes the law concerning children ́s right to personal assistance. In addition, it includes an empirical investigation of 20 judgments from kammarrätten regarding children’s right to personal assistance. The investigation showed that despite the absence of a definition, there seems to be a consistency in the application of the principle in some fields. At the same time the investigation showed that there are clear ambiguities in the assessments of the principle of normal parental responsibility. Further, the dissertation discusses if the application of 51 kap. 6 § SFB is in compliance with the rule of law. The provision is discussed based on the requirement of clear substantive rules and the requirement of uniformity. Finally, the parental responsibility is discussed from a human rights perspective, and more specifically the right to family life. This aspect of the dissertation concludes that in the assessment of parental responsibility, it is significant that decision makers consider the parents actual opportunity to exercise parental responsibility. The current assessment of the principle of parental responsibility in Sweden, however, takes comparison of another child of the same as its starting point in order to determine the needs the parents should be required to care for.