Disability of the mother alone is not enough: the appellate court explained the conditions for the dismissal of a serviceman

The Eighth Administrative Court of Appeal considered the case filed by a serviceman who challenged the refusal of the military unit command to dismiss him from military service due to the need to provide constant care for his mother with a Group II disability.

The court concluded that confirming the disability of the person requiring care is not sufficient grounds for dismissal on this basis. The serviceman must also prove the absence of other first- or second-degree relatives who can provide such care, or confirm that such relatives themselves require constant care according to the conclusions of the medical-social expert commission or the medical-consultative commission.

Case essence

The serviceman, who served under conscription during mobilization, submitted a report to the military unit commander requesting dismissal based on subparagraph "g" of paragraph 2 of part four of Article 26 of the Law of Ukraine "On Military Duty and Military Service." The basis for dismissal was the need to provide constant care for his mother, who was assigned a Group II disability.

A substantial package of documents was attached to the report. Among them were documents confirming family ties, the mother's Group II disability status, conclusions of the medical-consultative commission about the mother's need for constant external assistance and care, recommendations for providing social home care services, an inspection report of living conditions, documents about the family composition, and documents regarding other relatives of the mother.

The plaintiff stated that besides him, there were practically no other persons who could care for his mother. To confirm this, he submitted documents indicating that the mother's sister, brothers, and his own sister had disabilities, as well as conclusions from medical-consultative commissions stating that some of them, due to their health condition, could not provide care for others.

After reviewing the report, the legal service of the military unit concluded that the submitted documents did not confirm all the grounds for dismissal provided by law. In particular, it was noted that the mother has other first- and second-degree relatives, and the provided documents do not confirm that they themselves require constant care according to the conclusions of the medical-social expert commission or the medical-consultative commission. The serviceman was also advised to submit appropriate medical documents regarding such relatives and a family status inspection report approved by the territorial recruitment and social support center.

The report was left without implementation, after which the serviceman appealed to the administrative court. The court of first instance denied the claim, and this decision was appealed.

Position and conclusions of the court

The appellate court noted that the procedure for dismissing servicemen during martial law is determined by the Law of Ukraine "On Military Duty and Military Service." According to subparagraph "g" of paragraph 2 of part four of Article 26 of this Law, a serviceman called up during mobilization may be dismissed due to family circumstances or other valid reasons.

One such ground is the need to provide constant care for one of the parents or the spouse's parents who is a person with a Group I or II disability, provided there are no other first- or second-degree relatives who can provide such care, or if such relatives themselves require constant care according to the conclusions of the medical-social expert commission, medical-consultative commission, or the decision of the expert team assessing the person's daily functioning.

The panel of judges emphasized that a systematic analysis of these norms indicates three mandatory conditions for dismissal on this basis: the need to provide constant care for one of the parents, the presence of Group I or II disability in such a person, and the absence of other first- or second-degree relatives who can provide care, or confirmation that they themselves require constant care according to the conclusions of the medical-social expert commission or medical-consultative commission.

The court established that the serviceman submitted a dismissal report to the command along with documents confirming the mother's Group II disability, conclusions of the medical-consultative commission about the mother's need for constant external assistance and care, recommendations for providing social home care services, as well as documents regarding other family members.

At the same time, the appellate court noted that the legal significance for resolving the dispute lies not only in the documents about the mother's health status but also in confirming that other relatives cannot be considered persons capable of providing such care within the meaning of Article 26 of the Law of Ukraine "On Military Duty and Military Service."

Analyzing the Regulations on the procedure, conditions, and criteria for establishing disability, approved by the Cabinet of Ministers of Ukraine Resolution No. 1317, the court noted that the legislation clearly distinguishes between establishing a disability group and determining a person's need for constant external care.

The panel of judges stressed that the establishment of Group II disability alone does not imply the emergence of a need for constant external care. Unlike Group I disability, for which the legislation provides the possibility of establishing the need for constant external supervision, care, or assistance, the basis for establishing Group II is stable functional impairments with preserved ability for self-care, which do not cause the need for constant external supervision, care, or assistance.

The court also noted that the concepts of "external care" and "constant care" are not identical. External care characterizes the person providing it, while constant care means continuous care for a person unable to self-care.

Evaluating the evidence submitted by the plaintiff, the appellate court found that the mother has other first- and second-degree relatives — a daughter, brothers, and a sister.

The provided conclusions of the medical-consultative commissions confirm that some of these relatives, due to their health, cannot provide care for others. In addition, documents confirm their respective disability groups.

However, as the panel of judges emphasized, these documents do not contain information that these relatives themselves require constant care. The presence of a disability or a conclusion about the inability to care for others is not equivalent to establishing a person's need for constant care.

The court concluded in case No. 380/24745/24 that the law links the serviceman's right to dismissal not to the fact of disability of other relatives or their inability to care for others, but specifically to the presence of a confirmed need for constant care of these persons in the prescribed manner.

Since the plaintiff did not provide proper and sufficient evidence that other first- or second-degree relatives themselves require constant care, nor proved the absence of such relatives, the court agreed with the conclusions of the court of first instance about the absence of legal grounds for his dismissal from military service.

Under these circumstances, the Eighth Administrative Court of Appeal recognized that the military unit command acted in accordance with the requirements of the law, and the decision of the court of first instance was made with the correct application of substantive and procedural law. The appeal was dismissed, and the decision of the court of first instance remained unchanged.

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