of the right to cash social assistance, it will be impossible to enforce the right again”, which is obviously not true. Unequal treatment of persons who are unrelated was established in comparison to relatives as per the provision of Article 21 of the ZZZDR (Marriage may not be concluded between persons who are directly related as brother and sister, half-brother and half-sister, uncle and niece, aunt and nephew, and also not between the children of brothers or sisters, half-brothers or sisters.) since different standards apply to the former. Merely by referencing a family tie, two relatives may avoid establishing the actual existence of a committed relationship, while two people who are not related cannot even claim the absence of shared intent. The Ombudsman believes that such errors by the Ministry are unacceptable and constitute a violation of the principle of good administration. The MDDSZ corrected its clarification in the second case when reminded of this by the complainant, while it submitted the corrected reply to the complainant in the first case only after the Ombudsman’s proposal. A person may be treated unequally compared to another person merely because the former has a child with an unmarried person and the latter with a married one (Article 20 of the ZZZDR: Nobody may conclude a new marriage until their previously concluded marriage is terminated or annulled.) since the reversed burden of proof will be applied in the decision-making procedure on the right of the first person, but not applied in the case of the latter person. The characteristics of a third party affect the right of the first person, but these should not be decisive criteria when claiming rights arising from the social endangerment of the first person. With regard to enforcing rights to public funds, we believe that there are no justified reasons for differentiating between persons with severe mental disorders or persons with revoked legal capacity (Article 19 of the ZZZDR: Marriage may not be concluded by persons who are seriously mentally disturbed or legally incompetent.) from persons with minor or no mental disorders. Both may conceive offspring and should be in comparable positions when claiming rights relating to their economic situation. It is thus impossible to apply the rule of the reversed burden of proof in paragraph five of Article 10 of the ZUPJS for persons with severe mental disorders or persons with revoked legal capacity, while this rule is applied to persons with minor, or no, mental disorders if they have a child. Due to the foregoing, we believe that the provision of paragraph five of Article 10 of the ZUPJS is contrary to the principle of equal treatment arising from Article 14 of the Constitution of the Republic of Slovenia when enforcing access to rights to public funds protected by the provisions of Articles 2, 34 and 50 of the Constitution.” The Constitutional Court has not assessed the constitutionality of the contested provisions yet, but has decided that the request will be discussed with absolute priority. 2.13.4 Poor records and incorrect clarifications of the Ministry The complainants often expect clarifications from the Ombudsman about establishing their rights. They state in their letters that clarifications they receive from different social work centres about rights to public funds frequently differ and they wonder which information is actually correct. Appropriate information is essential for understanding and enforcing individual rights, and people who contact social work centres, which decide on these rights, are entitled to expect such information. Unfortunately, they do not always receive information, as evident from the case below involving the Ministry of Labour, Family, Social Affairs and Equal Opportunities (MDDSZ). We discussed a case of a compliant who received a reply from the MDDSZ to her letter about the reimbursement of cash social assistance which was utterly unclear and also incorrect. The MDDSZ overlooked that the complainant had not been a recipient of cash social assistance (for over a year) and thus failed to calculate the amount of funds she had to reimburse, but had instead informed her that she had to first waive the right, and also explained that “following the waiver 138 ANNUAL REPORT OF THE HUMAN RIGHTS OMBUDSMAN OF THE REPUBLIC OF SLOVENIA FOR 2015 This was not the only case we discussed. A complainant who contacted the MDDSZ to conclude an agreement on debt relief as per the Conditions for the Implementation of Debt Forgiveness Act, received an incorrect reply from the MDDSZ stating that, according to its records, he did not qualify as a debtor as per point two of Article 2 of the Act (although he did meet the conditions), but failing to inform him that the Ministry could only forgive debt arising from unjustifiably received cash social assistance, pension support or child benefit if these were allocated in 2012 or 2013, but not other debt for which the complainant asked forgiveness. 2.13.5 Ineligible use of social benefits is sanctioned inappropriately We were informed about the case of a complainant whose application for extraordinary social assistance benefit in cash was rejected by a social work centre because he had failed to prove eligible use of the benefits allocated previously. The complainant received social assistance in the amount of EUR 570, and proved eligible use ‘only’ for EUR 568.70. The remaining sum, amounting to EUR 1.30, would have to be returned to the budget of the Republic of Slovenia by the legally determined deadline. Since he failed to do this, he lost the right to extraordinary social assistance benefit in cash for 14 months following the receipt of the extraordinary social assistance benefit in cash. The Ombudsman believes that laws regulating such cases are inadequate, since these are obvious examples of disproportion between the omission of due conduct and the consequences (sanctions). These arrangements are also contrary to the principle of equity. It is unfair to treat and sanction equally recipients of extraordinary social assistance benefit in cash who do not use the benefits accordingly or fail to provide suitable evidence to social work centres, and those who use extraordinary social assistance benefit in cash for a certain purpose and submit evidence in due time, but where discrepancies occur between the allocated benefits and funds used in the amount of few euros. Expert workers would have to warn beneficiaries about minor discrepancies and sanction them only after they failed to justify the eligible use of funds following a warning. The Ministry of Labour, Family, Social Affairs and Equal Opportunities responded to our notification and sent a circular to all social work centres advising them to apply certain safeguards before and after allocating extraordinary social assistance benefit in cash in order to avoid the allocation of extraordinary social assistance benefit in cash being denied due to ineligible use, non-use or failure to submit evidence within the legally determined period. Social work centres were advised to be diligent when considering applications if beneficiaries are able to prove the eligible use of funds for the purposes and the amount which they requested. They must also consider the health issues of beneficiaries or their mental problems, which may affect their memory or ability to provide evidence, and where the failure to prove eligible use may be avoided with the allocation of funds in another form. Social work centres should review the evidence they receive on the eligible use of benefits immediately, or as soon as possible, and inform beneficiaries if the evidence is unsuitable or insufficient and inform them also of the option to file a request for reinstatement if for justified reasons the funds are not used within 30 days. In cases when beneficiaries used the funds eligibly and within the legally determined time limit, but not in their entirety, beneficiaries are informed about returning the remaining amount of funds to the budget of the Republic of Slovenia within 45 days after receiving benefits. ANNUAL REPORT OF THE HUMAN RIGHTS OMBUDSMAN OF THE REPUBLIC OF SLOVENIA FOR 2015 139 2.13 SOCIAL MATTERS 2.13 SOCIAL MATTERS Regarding the fact that the contested legal presumption of non-marital cohabitation applies unless one of the reasons for the annulment of marriage as per the ZZZDR is provided (Article 32 of the ZZZDR: Marriage concluded contrary to the provisions of Articles 16, 17, 18, 19, 20 in 21 of this Act is invalid.), the party’s claim that there is no interest in joint cohabitation with another person would in our opinion already take precedence over such a presumption, since according to Articles 16 and 17 of the ZZZDR shared intent constitutes an element of marriage and thus also of the legal concept of non-marital cohabitation as per the ZUPJS. Regardless of the existence of such shared intent, competent decision-making bodies request additional evidence from parties concerned, usually in the form of witness statements, and establish the existence of non-marital cohabitation by reversing the burden of proof in the absence of such evidence.