Mona Thrane Sørgård og Jan Morten Sørgård

Foto: Bitten Munthe-Kaas

Kvæfjord kommune vant i Tian-saken

Kvæfjord kommune vant erstatningssaken hvor Tians foreldre hadde etablert et eget tilbud fordi kommunens tilbud var uforsvarlig. Dommen viser først og fremst at kommunene kan gjøre som de vil, uten å risikere konsekvenser.

Familien Sørgård var svært misfornøyd med det kommunale tilbudet til deres sønn Tian. De etablerte eget tilbud. Tingretten dømte Kvæfjord kommune til å betale familien erstatning for kostnadene som påløp familien. Kommunen anket til lagmannsretten som kom til motsatt konklusjon og frifant Kværfjord kommune for erstatningssøksmålet.

Mens dommen i tingretten i stor grad hadde fokus på hvilke tjenester Tian hadde krav på, var fokuset i lagmannsretten langt mer avtalerettslig. Lagmannsretten er mest opptatt av å avekke årsakssammenhengen mellom Kvæfjord kommunes tjenestetilbud og endringene i Tians oppførsel og toner ned Tians rett til å få tjenestene i form av BPA eller kravet om forsvarlige tjenester.

"Tingretten la til grunn «at saksøkerne ikke hadde noen andre reelle valgmuligheter enn å kjøpe avlastningstjenester fra KOA fra og med sommeren 2016», se dommen side 21. Lagmannsretten er ikke enig i dette. Som redegjort for tidligere, har lagmannsretten lagt til grunn at kommunens avlastningstilbud i perioden august 2016 til februar 2017 var forsvarlig, og at årsakene til svingningene i Tians fungering i 2015 og 2016 var sammensatte. På denne bakgrunn kan det ikke sies å ha vært nødvendig å kjøpe private tjenester i stedet for å ta imot kommunens tilbud.

Siden avslaget på BPA ikke i dette tilfellet står i årsakssammenheng med det økonomiske tapet, er det ikke nødvendig for lagmannsretten å ta stilling til om avslaget på BPA innebærer at det foreligger ansvarsgrunnlag etter skl. § 2-1. Alle nødvendige vilkår for rett til erstatning er ikke oppfylt, og kommunen blir å frifinne for Sørgårds erstatningskrav."

Dommen åpner f.eks. for at kommunene risikofritt kan avslå tjenestene organisert som BPA, uavhengig av tjenestemottakers rettigheter. Kommunene trenger ikke frykte erstatningskrav for eventuelle uforsvarlige tjenester.

Vi får håpe at Tians foreldre evner og makter å forfølge saken videre.

Les også:

Jens Petter Gitlesen

8 februar 2019

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