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The terms of granting childcare allowances to supplement family benefits during the period of parental leave SK 36/15

In the case where care is provided for more than one child born at one birth, one childcare allowance is granted and it is linked with a single right of a person who meets statutory requirements to receive a family benefit, which does not infringe the constitutional guarantee of the protection of the family.

On 27 September 2017 at noon, the Constitutional Tribunal publicly delivered its ruling, issued at a sitting in camera, with relation to the constitutional complaint lodged by Ms M.W. with regard to the terms of granting childcare allowances to supplement family benefits during the period of parental leave.

The Constitutional Tribunal adjudicated that Article 10(1) of the Act of 28 November 2003 on Family Benefits (Journal of Laws – Dz. U. of 2016 items 1518 and 1579) – insofar as it provides for a family benefit to be supplemented with only one childcare allowance during the period of parental leave, irrespective of the number of children born at one birth – is consistent with Article 32(1) in conjunction with Article 71(1), second sentence, of the Constitution of the Republic of Poland, as well as is not inconsistent with Article 72(1), second sentence, of the Constitution.

Moreover, the Tribunal decided to discontinue the proceedings as to the remainder.

The ruling was adopted by a majority vote.

The subject of the Tribunal’s review was Article 10(1) of the Act of 28 November 2003 on Family Benefits, in the version that was binding on the day of issuing a final decision in the case of the complainant.

Already after the Tribunal’s receipt of the complaint, the Supreme Administrative Court – in its resolution of 26 June 2014, ref. no. I OPS 15/13 – held that “a childcare allowance during the period of parental leave, as referred to in Article 10(1) of the Act of 28 November 2003 on Family Benefits (Journal of Laws – Dz. U. of 2013 item 1456 as amended), where the parental leave is used for looking after more than one child born at one birth, is to supplement a family benefit for each child”.

The interpretation of Article 10(1) of the Act which was adopted in that resolution differed from the one adopted in the complainant’s case, and bound all courts adjudicating on the basis of that provision. The provision interpreted in such a way had not however been the basis of a ruling adopted in the complainant’s case, and the adoption of the resolution by the Supreme Administrative Court and a different interpretation arising from that resolution does not constitute the basis of renewing the proceedings.

Only a potential ruling about the unconstitutionality of the challenged provision may open up an avenue for the re-examination of the complainant’s case in the legal situation determined by the Tribunal’s judgment.

The scope of the substantive review delineated by the limits of the complaint is not affected also by amendments introduced by the Act of 7 July 2017 amending certain acts related to support systems for families, where the amending Act changed the wording of Article 10(2) of the Act on Family Benefits. The current version of the amended provision reads as follows: “A person referred to in para 1 shall be eligible for a single childcare allowance of PLN 400 a month, irrespective of the number of children under the person’s care”.

Although the amended version of Article 10(2) of the Act eliminates all the doubts of the complainant as regards the interpretation of Article 10(1) of the Act, it still remains in contradiction with her expectations. In the complainant’s view, the childcare allowance of PLN 400 should be granted to an eligible person with regard to each child separately. Only then will it meet the requirements of the constitutional principle of equality. The allegations raised by the complainant in the context of Article 10(1) of the Act in the version that was binding before the entry into force of the amending Act of 7 July 2017 still remain relevant.

Article 10(1) of the Act within the same meaning which arises from the amending Act constituted the final determination in the complainant’s case. Therefore, pursuant to Article 79 of the Constitution, only that provision with the wording that was binding on the day of the issuance of the final determination in the complainant’s case may be subjected to a constitutional review conducted by the Tribunal.

When examining the conformity of Article 10(1) of the Act to Article 32(1) in conjunction with Article 71(1), second sentence, of the Constitution, the Tribunal primarily considered whether the challenged provision leads, or may lead, to differentiation among persons that are eligible to receive a childcare allowance. Thus, the Tribunal first determined the nature of the allowance, and then examined whether the selection of criteria (requirements) for the granting thereof is adequate to the objective the legislator had aimed to achieve by means of that benefit.

At the same time, it ought to be taken into account that the legislator’s discretion comprises selecting normative constructs, determining the functions of paid benefits, as well as devising criteria for the granting of the benefits. The Tribunal has no competence to replace the Parliament when it comes to taking political decisions within that scope, provided that the selection of criteria for granting benefits does not thwart a given objective and does not result in differentiation in the situation of similar parties.

The said criteria need to be selected adequately to the objective of a given right within the entire system of the state’s assistance. For a benefit to fulfil its function within the ambit of guarantee functions, the selection of criteria must be adequate to adopted assumptions and must specify the scope ratione personae so that all eligible persons who are in the same situation and require special assistance from public authorities could obtain such benefits.

The Tribunal deemed that, in the light of the Act on Family Benefits, a childcare allowance constitutes a benefit related to the family benefit and it is paid to an eligible person in the amount that is calculated on the basis of the number of children and their age. This is a single right that is vested in a person meeting statutory criteria, and this is not a number of family benefits granted separately for each child.

Consequently, where a person looks after more than one child born at one birth, one childcare allowance is granted, and it is related to a single right of a person meeting statutory requirements to receive a family benefit.

The legislator recognises the fact that more than one child was born at one birth by prolonging the period when the childcare allowance is paid out, and not by granting the said right with regard to each child separately. What constitutes the essence of that allowance is to support childcare during the period of parental leave. There are the following criteria for granting the allowance – apart from income criteria applied to each member of a given family – which are related to the granting of a family benefit: actually providing childcare and being on parental leave. This entails that the allowance is not granted per child, but it is awarded to an eligible person who meets the criteria specified by statute.

In the light of the above, the Tribunal deemed that the criteria for granting the said allowance are adequate to the assumed objective of the allowance. This is not an allowance that is paid independently, but it is linked with a family benefit granted due to certain life circumstances.

What constitutes such a circumstance is the birth of a child and the ensuing professional inactivity. It is granted during the period of parental leave, and the purpose thereof is to compensate the loss of income.

The Tribunal stated that the challenged provision does not infringe the constitutional guarantee of the protection of the family. The legislator’s obligation is to ensure the minimal standard of the said protection on the basis of criteria for granting rights within that scope which have been formulated in an objective, abstract and general way.

Article 71(1), second sentence, of the Constitution mentions the subsidiary character of assistance provided by the state. The state does not take over the obligation of maintaining families with many children, but it does provide them with financial support within the limits of the state budget. It does not fully replace family members when it comes to their maintenance obligations.

The special character of assistance that guarantees minimum living standards for family members should be evaluated not only with regard to the childcare allowance alone, but also in a broader context of the entire system of social assistance covered from the state budget, including a family benefit, a childcare allowance to supplement the family benefit due to the birth of a child, a one-off benefit due to the birth of a child, as well as the social assistance programme called “Family 500+”.

The Presiding Judge of the adjudicating bench was the President of the Constitutional Tribunal, Judge Julia Przyłębska, and the Judge Rapporteur was Judge Leon Kieres.