About being forced to queue for housing
No.6001-23-00-6ap/657 dated October 26, 2023
Plaintiff: S.K.
Defendant: State Institution "City Housing Administration"
The subject of the dispute: the recognition of illegal actions in refusing to be placed on the housing waiting list, starting from May 17, 2011, the recognition of illegal actions in response to June 8, 2022, forcing to be placed on the housing waiting list, starting from May 17, 2011
Review of the plaintiff's cassation complaint PLOT:
The plaintiff appealed to the court with the above requirements. The claim is motivated by the fact that on May 27, 2022, he applied to the Housing Department for violating the housing waiting list, as they should have been queued since May 2011, from the moment the application was submitted. However, due to mistakes by government officials, he has been put on the waiting list since February 12, 2019. He requested that the defendant's actions in refusing to be placed on the housing waiting list be declared illegal, starting on May 17, 2011, in response to the response dated June 8, 2022 on the refusal to change the priority and to compel the defendant to be placed on the housing waiting list starting on May 17, 2011.
Judicial acts:
1st instance: the claim was denied
Appeal: the court's decision remains unchanged.
Cassation: judicial acts are cancelled. A new decision on the satisfaction of the claim has been made in the case.
The action of the State Institution "Housing Management" to refuse to put S.K. on the housing waiting list, starting from May 17, 2011, was recognized as illegal.
It was decided to oblige the defendant of the State Institution "Housing Management" to eliminate the violation of the plaintiff's rights, taking into account the legal position of the court.
Conclusions: the courts of the first and appellate instances have committed violations leading to the revision of judicial acts in the present case.
Thus, according to certificate No. 903134, issued on June 4, 1991, S.K. is a participant in the elimination of the consequences of accidents at the Chernobyl nuclear power plant in 1986.
In addition, S.K. is a disabled person of the third group due to his receipt in the performance of military service duties in connection with the accident at the Chernobyl nuclear power plant without a re-examination period.
Since February 12, 2019, the plaintiff has been on the waiting list for No. 8851 for housing in the category of socially vulnerable segments of the population as a veteran, equated in benefits to veterans of the Great Patriotic War.
According to subparagraph 2) of paragraph 1 of Article 67 of the Law "On Housing Relations" (hereinafter referred to as the Law), dwellings from communal housing stock or dwellings rented by a local executive body in a private housing stock are provided for use by citizens of the Republic of Kazakhstan in need of housing and registered citizens of the Republic of Kazakhstan belonging to socially vulnerable segments of the population specified in subparagraphs 1-1) 5), 7), 8),
10) and 11) of Article 68 of this Law, who have a cumulative average monthly income for the last twelve months before applying for housing for each family member below 3.1 times the minimum subsistence level established for the relevant financial year by the law on the republican budget.
In accordance with subparagraph 1-1) of Article 68 of the Law, socially vulnerable segments of the population include veterans who are equivalent in benefits to veterans of the Great Patriotic War.
According to subparagraph 3) of paragraph 1 of Article 3 of the Law "On Veterans", veterans in accordance with this Law are recognized as: veterans who are equal in benefits to veterans of the Great Patriotic War.
By virtue of paragraph 1 of Article 6 of the same law, veterans who participated in the elimination of the consequences of the Chernobyl nuclear power plant disaster in 1986-1987, other radiation disasters and accidents at civilian or military facilities, as well as those who participated directly in nuclear tests, are recognized as veterans, equated in terms of benefits to veterans of the Great Patriotic War.
The court found that on May 10, 2011, the plaintiff applied to the Department for registration of those in need of housing as a participant in the liquidation of the consequences of the Chernobyl nuclear power plant, as a person with a group 3 disability, which is confirmed by a certificate dated June 4, 1991 and a certificate of disability No.0449442 dated August 27, 2008 without an examination period.
On May 17, 2011, the Department sent a notice to the plaintiff for
No. 15/4-2266, which denied him registration, as according to the certificate of the Department of Employment and Social Programs dated May 5, 2011, No. 782
He did not belong to the "poor" category.
The courts concluded that it was necessary to dismiss the claims due to the fact that the plaintiff did not appeal the above-mentioned notification and the defendant's actions to refuse registration within the prescribed time, which is his procedural omission.
However, such conclusions of the courts are premature.
Thus, the plaintiff's arguments that in 2011, for the period of filing an application for registration, he belonged to the category of socially vulnerable segments of the population, were confirmed.
This fact was confirmed in the response of the State Department of Employment and Social Protection dated March 18, 2022, after examining the income documents submitted by the plaintiff for 2010-2011.
According to the income statement provided by the plaintiff for the period from May 1, 2010 to May 1, 2011, the total amount of benefits received by S.K. amounted to 336040 tenge, that is, the average monthly income was 28 003 tenge.
Meanwhile, the minimum subsistence level established by law in May 2011 was 15,999 tenge, therefore, the amount of 3.1 times the minimum subsistence level was 49,596 tenge.
Thus, the plaintiff's average monthly income for the last twelve months before applying was below 3.1 times the subsistence level and he belonged to socially vulnerable segments of the population, which, combined with the fact that he was a veteran equated to veterans of the Great Patriotic War, gave him the right to register those in need of housing. back in 2011.
In accordance with the third part of Article 13 of the CPC, an illegal administrative act adopted through the fault of an administrative body or official, as well as an illegal administrative act (inaction) committed through the fault of an administrative body or official, cannot entail burdensome consequences for a participant in an administrative procedure.
Taking into account the above, the judicial board considers that judicial acts of local courts are subject to cancellation with the issuance of a new decision on the satisfaction of the claim.
At the same time, the judicial board considers that the recognition of the defendant's illegal actions in refusing to be placed on the housing waiting list, starting from May 17, 2011, is sufficient and there is no need to recognize the illegal response of the State Housing Administration dated June 8, 2022.
The Judicial Board also considers it necessary to impose on the defendant the obligation to eliminate violations of the plaintiff's rights, taking into account the legal position of the court set out in this decision.
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