Decision imposing a co‑payment in connection with nursing home care was invalid

Under section 3 subsection 4 of the Regulation on co‑payments for municipal health and care services, the co‑payment for long‑term stays in nursing homes is to be calculated on the basis of certain specified types of income, “after deduction of tax”.

A nursing home resident had been transferred a tax deduction from her spouse. This reduced the resident’s tax liability and resulted in a higher user charge than would otherwise have been the case.

Before the Supreme Court, the issue concerned the interpretation of the phrase “deduction of tax” in section 3 subsection 4, and more specifically the scope of the tax deduction to be made when calculating the user charge.

First, the Supreme Court held that only tax attributable to those types of income that fall within the Regulation’s definition of income is to be deducted. Accordingly, no deduction is to be made for income tax that is unrelated to the relevant income sources. This operates to the detriment of the resident, as the user charge will then be higher than if all assessed tax were to be deducted.

The Supreme Court further held that any tax effect, including tax reductions, that is unrelated to the income items included in the Regulation’s income concept must be disregarded. This operates to the resident’s advantage, as the tax deduction will then be greater than the assessed tax alone would indicate, resulting in a lower user charge.

In the present case, the tax deduction transferred from the spouse was not related to the resident’s income relevant under the Regulation and therefore had to be disregarded when determining the user charge. Since the decision of the County Governor was based on the assumption that the transferred tax deduction should be taken into account, the decision was invalid.

Areas of law: Health law, nursing home stays, co-payment, tax, section 3 of the Regulation on user charges for municipal health and care services

Key paragraphs: 55–59

Justices: Falch, Sæther, Sivertsen, Poulsen, Steen