My health insurance company owes me 500 francs ...

My health insurance company owes me 500 francs ...

"My health insurer has failed to pay me back CHF 500 despite several reminders. Am I entitled to offset this sum against my debts to them, in particular my insurance premiums?"

Corinne, Vaud

According to art. 120 of the Swiss Code of Obligations, when two persons owe each other sums of money or other services of the same kind, each party may set off his debt against his claim, if both debts are due and payable. The debtor may oppose set-off even if his claim is disputed.

For most social insurers, the principle of offsetting their claims against their debts is enshrined in law. In the case of health insurers, the LAMal does not expressly permit such an operation, but it appears that in practice they often offset insurance benefits due to policyholders against premiums that are in arrears, a practice that the courts have found nothing to object to.

Conversely, the law does not allow policyholders to offset the payment of their premiums or contributions to costs against reimbursements they expect from the insurance company. The Federal Court upheld this inequality of treatment on the grounds that, under art. 125 para. 3 of the Swiss Code of Obligations (CO), claims against a health insurance fund governed by public law cannot be extinguished by offsetting; in the view of the federal judges, different treatment depending on whether an insurance company is governed by public or private law would not be satisfactory. That said, the situation has now changed, since there has apparently been no public health insurance scheme since May of this year. There is, however, a second argument based on the fact that, by law, it is up to the health insurance companies to determine the rights and obligations of insured persons. Our High Court considers that if policyholders were able to offset their claims, they would be able to decide which benefits they consider justified and which they do not, which is inconceivable. You are therefore not entitled to make the set-off that you envisage, even if this may seem a little shocking in cases where the insurance company is a little quicker to collect premiums than to provide benefits.