Thông tư 26/2012/TT-BLDTBXH

CIRCULAR

GUIDING A NUMBER OF ARTICLES OF THE GOVERNMENT’S DECREE NO. 28/2012/ND-CP OF APRIL 10, 2012, DETAILING AND GUIDING A NUMBER OF ARTICLES OF THE LAW ON PERSONS WITH DISABILITIES

Pursuant to the June 17, 2010 Law on Persons with Disabilities; Pursuant to the Government’s Decree No. 28/2012/ND-CP of April 10, 2012, detailing and guiding a number of articles of the Law on Persons with Disabilities (below referred to as Decree No. 28/2012/ND-CP);

At the proposal of the Director General of the Social Protection Department;

The Minister of Labor, War Invalids and Social Affairs promulgates the Circular guiding a number of articles of Decree No. 28/2012/ND-CP as follows:

Article 1. Scope of regulation

This Circular provides the determination of the rate of employees with disabilities; dossiers, procedures and order for recognition of production and business establishments employing persons with disabilities accounting for at least 30% of their total employees for enjoyment of incentives; the determination of levels of monthly social allowance and caretaking allowance; levels of allowance for persons with disabilities living in social protection centers; commune-level social allowance approval councils; conditions and competence to send persons with disabilities living in social protection centers to families.

Article 2. Determination of the rate of employees with disabilities

1. The percentage of employees with disabilities of a production and business establishment equals the average total annual number of employees with disabilities divided by the average total annual number of employees of that establishment multiplied by 100.

The percentage of employees with disabilities of a production and business establishment:

For example: In 2011, enterprise A had 200 employees on its January payroll (including 61 persons with disabilities); it had 12 more employees (including 3 persons with disabilities) in April; 3 employees (including 1 person with disabilities) and another 3 quit their job in October and December respectively.

The average number of employees in 2011 equals:

200 employees + [(12 employees x 9 months) - (3 employees x 3 months) - (3 employees x 1 month)]/12 months = 200 employees + 8 employees = 208 employees

The average number of employees with disabilities in 2011 equals:

61 employees + [(3 employees x 9 months) - (1 employee x 3 months)]/ 12 months = 63 employees

So, the percentage of employees with disabilities of enterprise A is: (63 employees: 208 employees) x 100 = 30.28%

2. Production and business establishments employing persons with disabilities accounting for at least 30% of their total employees are entitled to incentive policies of the State specified in Clause 1, Article 9 of Decree No. 28/2012/ND-CP.

Article 3. Dossiers, procedures and order for recognition of production and business establishments employing persons with disabilities accounting for at least 30% of their total employees for enjoyment of incentives

1. A dossier of request for recognition comprises:

a/ A written request of the production and business establishment;

b/ A copy of the establishment decision or operation license of the establishment;

c/ A list of employees with disabilities and copies of their disability certificates;

d/ Copies of labor contracts or recruitment decisions of the employees with disabilities.

2. Recognition procedures and order:

a/ The production and business establishment employing persons with disabilities accounting for at least 30% of its total employees shall prepare 1 dossier as prescribed in Clause 1 of this Article and send it (directly or by post) to the provincial-level Department of Labor, War Invalids and Social Affairs.

b/ Within 15 working days after receiving a complete and valid dossier, the provincial-level Department of Labor, War Invalids and Social Affairs shall appraise the dossier and issue a decision on recognition of the production and business establishment employing persons with disabilities accounting for at least 30% of its total employees or issue a written reply stating the reason for the establishment’s ineligibility.

3. Renewal of recognition decisions:

a/ A decision on recognition of a production and business establishment employing persons with disabilities accounting for at least 30% of its total employees is valid for 24 (twenty-four) months.

b/ At least 1 (one) month before the recognition decision expires, the production and business establishment shall send (directly or by post) 1 dossier of request for renewal of that decision to the provincial-level Department of Labor, War Invalids and Social Affairs. A dossier comprises:

- A copy of the recognition decision;

- A written request for renewal, clearly stating the establishment’s current total number of employees and number of employees with disabilities together with a list of employees with disabilities which clearly indicates those recruited since the establishment obtained the recognition decision (if any);

- Copies of disability certificates and labor contracts or recruitment decisions of employees with disabilities recruited since the establishment obtained the recognition decision (if any).

c/ Within 10 working days after receiving a complete and valid dossier, the provincial-level Department of Labor, War Invalids and Social Affairs shall appraise the dossier and issue a decision on renewal of the recognition decision of the establishment for 24 (twenty-four) months; or issue a written reply stating the reason for the establishment’s ineligibility.

Article 4. Determination of monthly social allowance for persons with disabilities living in families and levels of monthly caretaking allowance

1. For provinces and centrally run cities, ministries, sectors and central mass organizations, to apply the standard monthly social allowance for persons with disabilities according to current regulations.

Example 1: Mr. Nguyen Van A, 25, is a person with exceptionally serious disabilities residing in province B which applies the standard monthly social allowance of VND 180,000. The coefficient for calculating Mr. A’s monthly social allowance is 2.0 (applicable to persons with exceptionally serious disabilities). The monthly allowance for Mr. A is:

VND 180,000 x 2.0 = VND 360,000

Example 2: Mr. Nguyen Van B, 81, is a person with exceptionally serious disabilities residing in province C which applies the standard monthly social allowance of VND 180,000. The coefficient for calculating Mr. B’s monthly social allowance is 2.5 (applicable to elderly persons with exceptionally serious disabilities). The monthly allowance for Mr. B is:

VND 180,000 x 2.5 = VND 450,000

Example 3: Nguyen Van D, 4, is a person with exceptionally serious disabilities residing in province C which applies the standard monthly social allowance of VND 180,000. The coefficient for calculating D’s monthly social allowance is 2.5 (applicable to children with exceptionally serious disabilities). The monthly allowance for D is:

VND 180,000 x 2.5 = VND 450,000

Example 4: Mr. Nguyen B, 35, is a person with serious disabilities residing in province H which applies the standard monthly social allowance of VND 180,000. The coefficient for calculating Mr. B’s monthly social allowance is 1.5 (applicable to persons with serious disabilities). The monthly allowance for Mr. B is:

VND 180,000 x 1.5 = VND 170,000

Example 5: Mr. Nguyen Van Y, 80, is a person with serious disabilities residing in province Y which applies the standard monthly social allowance of VND 180,000. The coefficient for calculating Mr. Y’s monthly social allowance is 2.0 (applicable to elderly persons with serious disabilities.) The monthly allowance for Mr. Y is:

VND 180,000 x 2.0 = VND 360,000

Example 6: Nguyen Van D, 5, is a person with serious disabilities residing in province C which applies the standard monthly social allowance of VND 180,000. The coefficient for calculating D’s monthly social allowance is 2.0 (applicable to elderly persons and children with serious disabilities.) The monthly allowance for D is:

VND 180,000 x 2.0 = VND 360,000

2. For localities which apply standard levels set by chairpersons of provincial-level People’s Committees, monthly social allowance shall be determined as follows:

Example 1: The standard social allowance of province Y is VND 200,000/month/person. Mr. Tran Van An, 66, is a person with exceptionally serious disabilities and resides in province Y. Mr. Tran Van An is entitled to the highest social allowance coefficient of 2.5 (applicable to elderly persons with exceptionally serious disabilities). The monthly allowance for Mr. Tran Van An is: VND 200,000 x 2,5 = VND 500,000.

Example 2: Ms. Nguyen Thanh An, 20, who satisfies the conditions specified in Article 19 of Decree No. 28/2012/ND-CP nurses a person with exceptionally serious disabilities and resides in province C which applies the monthly social allowance of VND 200,000. Ms. An is entitled to the allowance for persons nursing persons with exceptionally serious disabilities with the coefficient of 1.5. The monthly allowance for Ms. An is:

VND 200,000 x 1.5 = VND 300,000

3. Monthly caretaking allowance for persons with exceptionally serious disabilities and persons with serious disabilities who are pregnant or raising children under 36 months old:

Example 1: Ms. Nguyen Thi A, 22, is a pregnant person with exceptionally serious disabilities and resides in province B which applies the standard monthly social allowance of VND 180,000. Her allowance is calculated as follows:

- Allowance for persons with exceptionally serious disabilities

VND 180,000 x 2.0 = VND 360,000

- Allowance for persons with exceptionally serious disabilities who are pregnant or raising 1 child under 36 months old:

VND 180,000 x 1.5 = VND 270,000

The total monthly allowance receivable by Ms. A is: VND 360,000 + VND 270,000 = VND 630,000

Example 2: Ms. Nguyen Thi B, 30, is a persons with serious disabilities who is pregnant and raising a child under 36 months old and resides in province C which applies the standard monthly social allowance of VND 180,000. Ms. B is entitled to 2 allowances as follows:

- Allowance for persons with serious disabilities: VND 180,000 x 1.5 = VND 270,000

- Allowance for persons with exceptionally serious disabilities who are pregnant and raising a child under 36 months old:

VND 180,000 x 2.0 = VND 360,000

The total monthly allowance receivable by Ms. B is: VND 270,000 + VND 360,000 = VND 630,000 Article 5. Support for purchase of personal articles and utilities for daily life activities of persons with exceptionally serious disabilities living in social protection centers

1. Persons with exceptionally serious disabilities living in social protection centers may receive:

a/ Blankets and mosquito nets once every 5 years;

b/ Annually, 2 mats, 2 summer suits, 1 winter suit, 2 sets of underwear, 2 face towels, 2 pairs of plastic slippers, 2 toothbrushes. Quarterly, 1 toothpaste and 1 kilo of soap.

c/ 2 packs of sanitary napkins/person/month. d/ Common drugs when getting sick.

e/ Functional rehabilitation tools and devices: Depending on their type and degree of disability, persons with disabilities may receive:

- Crutches: Once a year;

- Artificial limbs: Once every 3 years;

- Wheelchairs: One time.

2. Based on the norms on articles and utilities for daily life activities and expenses for repairing functional rehabilitation tools and devices, social protection centers shall make annual estimates based on actual prices and submit them to competent authorities for approval.

Article 6. Commune-level social allowance approval councils

A social allowance approval council, which is established by the chairperson of the People’s Committee, is composed of:

a/ The chairperson, who is the chairperson (or vice chairperson) of the People Committee;

b/ The civil servant in charge of labor, war invalid and social affairs;

c/ The head of the health center;

d/ The heads or deputy heads of the Vietnam Fatherland Front Committee, Vietnam Women Union, Ho Chi Minh Communist Youth Union and the organization of persons with disabilities (if any).

2. Operation of the commune-level social allowance approval council:

a/ When a person with disabilities or his/her lawful representative makes a written request for enjoyment of social allowance or adjustment of the level of enjoyment of social allowance, the council chairperson shall convene council members to a meeting to carry out the processes and procedures to consider and approve social allowance for the person concerned;

b/ This meeting must be chaired by the council chairperson and be valid only when it is attended by at least two-thirds of its members. In case the council chairperson cannot attend the meeting, he/she shall authorize another person to do so;

c/ Conclusions of the council must be approved by majority vote. In case the votes are equal, the decision must be made in favor of the council chairperson’s vote. Minor opinions must be reserved in the council meeting minutes. The council’s conclusions must be made in writing and signed by the council chairperson;

d/ The term of operation of the council follows the term of office of the commune-level People’s Committee;

e/ The commune-level social allowance approval council may use the seal of the commune-level People’s Committee.

Article 7. Conditions and competence to send persons with exceptionally serious disabilities living in social protection centers to families

1. A person with exceptionally serious disabilities who is living in a social protection center may be sent to a family when he/she fully meets the following conditions:

a/ He/she voluntarily requests to live in the community;

b/ He/she is nursed by a person who satisfies the conditions specified in Article 19 of Decree No. 28/2012/ND-CP.

2. The competence to discharge persons with disabilities from social protection centers complies with Article 24 of the Government’s Decree No. 68/2008/ND-CP of May 30, 2008, providing conditions and procedures for the formation, organization, operation and dissolution of social protection centers.

Article 8. Organization of implementation

1. Commune-level People’s Committees, and district-level Divisions and provincial-level Departments of Labor, War Invalids and Social Affairs shall manage and monitor the implementation of regimes for, and report on, persons with disabilities under current regulations on social protection beneficiaries.

2. To promulgate together with this Circular the following forms:

a/ Declaration of information on person with disabilities (form No. 1);

b/ Declaration of information on family having members with disabilities (form No. 2);

c/ Declaration of information on person nursing person with disabilities (form No. 3);

d/ Application for nursing person with disabilities (form No. 4);

e/ Decision on recognition of production and business establishment employing persons with disabilities accounting for at least 30% of its total employees (form No. 5).

(These forms are not translated).

Article 9. Effect

1. This Circular takes effect on December 26, 2012.

2. Provisions related to persons with disabilities and persons with mental disorder of Circular No. 24/2010/TTLT-BLDTBXH-BTC of August 18, 2010, guiding a number of articles of the Government’s Decree No.67/2007/ND-CP of April 13, 2007, on support policies for social protection beneficiaries, and Decree No. 13/2010/ND-CP of February 27, 2010, amending and supplementing a number of articles of the Government’s Decree No. 67/2007/ND-CP of April 13, 2007, on support policies for social protection beneficiaries, cease to be effective on the effective date of this Circular.

3. Any problems arising in the course of implementation should be promptly reported to the Ministry of Labor, War Invalids and Social Affairs for consideration and guidance.-