LSS-utredningen och den enskildes skydd mot retroaktiv lagstiftning

In January 2019 the Inquiry regarding the Act concerning Support and Service for Persons with Certain Functional Impairments (LSS) presented its report (SOU 2018:88). Personal assistance is one service according to LSS that involves few people but which is often extensive in its nature. It is given to those who need help with for example their personal hygiene, meals, dressing, communication with other people or other help that requires thorough knowledge of the functionally impaired. This service has had the largest percentage increase over time and the Inquiry has, according to its terms of reference, proposed a new act concerning support and services for persons with functional impairments. This new act changes the prerequisites for personal assistance and some people will no longer have a right to this service. In order to implement this new act all favorable decisions regarding personal assistance should be revoked in January 2025. The Inquiry uses legal certainty for the individual as a justification for this retroactive interference. One could question whether a retroactive interference like the one proposed is compatible with legal certainty. The Swedish protection of retroactivity is not absolute and there are exceptions. This article examines the legislator’s possibilities when it comes to retroactive interference within the area of administrative law (including social law). The results show that there is an acceptance for retroactive interference in this field and that an ideal of flexibility for the legislator could be more important than avoiding retroactivity.