Deprivation of the possibility of employment or other paid work in the case of granting the right to a care allowance SK 18/22
Deprivation of the possibility of employment or other paid work in the case of granting the right to a care allowance.
On 25 March 2026, the Constitutional Tribunal delivered its ruling on the constitutional complaint concerning the deprivation of the possibility of employment or other paid work in the case of granting the right to a care allowance.
The Constitutional Tribunal adjudicated that: “Article 17(1) of the Family Benefits Act of 28 November 2003 (Journal of Laws – Dz. U. of 2020, item 111, as amended) – insofar as “it makes the right to a care allowance contingent on not taking up or on giving up employment or other paid work for the purpose of taking care of a person with a certificate of a severe degree of disability or a certificate of disability, with regard to whom medical orders comprise: the necessity of constant or long-term care or assistance by another person due to considerably limited self-sufficiency as well as the necessity of the carer’s constant involvement in the daily process of the child’s treatment, rehabilitative care, and education – is inconsistent with Article 65(1) in conjunction with Article 31(3) in conjunction with Article 30 of the Constitution of the Republic of Poland”.
What constituted the subject matter of the Constitutional Tribunal’s review was the requirement of not taking up or of giving up employment or other paid work, as set forth in Article 17(1) of the Family Benefits Act as the prerequisite for acquiring the right to a care allowance due to taking care of a disabled child. The said prerequisite has ceased to be applicable since 1 January 2024. However, the Constitutional Tribunal [hereinafter also: the Tribunal] deemed that the review proceedings [commenced by the constitutional complaint] in the present case were not subject to discontinuance due to the fact that the challenged provision had ceased to be binding, as the issuance of a ruling was necessary [in the review proceedings] for the protection of constitutional rights and freedoms; moreover, on the basis of the relevant transitional provisions, in cases concerning the granting of a care allowance to which the right was acquired until 31 December 2023, the previous provisions are applicable.
What constituted a higher-level norm for the review was Article 65(1) of the Constitution, which in the Tribunal’s jurisprudence (case law) had not been a reference point for regulations on the allowances intended as broadly-construed support for disabled persons and their carers. However, the Tribunal deemed that the said provision of the Constitution – in the light of the allegations raised in the constitutional complaint – was an adequate higher-level norm for the review. Moreover, the Tribunal ex officio took account of two more provisions of the Constitution, which were not indicated in the constitutional complaint as higher-level norms for the review, namely: Article 31(3) of the Constitution, specifying the principle of the proportionality of restrictions of constitutional rights and freedoms; and Article 30 of the Constitution, pursuant to which the inherent and inalienable dignity of the person shall constitute a source of the person’s rights and freedoms. Work as a fundamental value, besides family, in every person’s life – both in its tangible aspect (as a source of financial means) and intangible one (as a means of the individual’s self-fulfilment) – is deeply ingrained in human dignity as the personal right that determines the individual’s position in society as a subject of rights.
The freedom to work comprises the following: the freedom to choose one’s occupation; the freedom to pursue one’s occupation; and the freedom to choose one’s place of work. In the context of the issue raised in the present case, what merited particular attention was the view expressed in the Tribunal’s jurisprudence (case law) in accordance with which the freedom to work also implied a prohibition against restricting the freedoms enshrined in Article 65(1) of the Constitution by adopting norms which, without being formal prohibitions as such, would prevent or hinder the exercise of the freedom to work for a certain category of persons.
Therefore, the Tribunal examined whether the restriction of the freedom to work with regard to the carers of disabled children – as expressed in the requirements of not taking up or of giving up employment or other paid work as the prerequisite for obtaining a care allowance – met the criteria of proportionality set out in Article 31(3) of the Constitution.
The provision under analysis met only the formal criterion for the admissibility of restrictions of rights and freedoms, i.e. the imposition by statute; however, it failed to meet the substantive criteria of the proportionality test:
Firstly, the challenged provision did not result in achieving the effects intended by the legislature, and hence it did not meet the criterion of usefulness. The legislature’s intention was that the care allowance should compensate the lost earnings of a carer of a disabled person who had given up employment or other paid work; however, the low amount of the allowance was insufficient to meet the basic financial needs of the carer and the carer’s child. The argument that performing paid work, even to a very limited extent, made it impossible to provide the aforementioned care was also misguided, as the fact of not working does not in itself guarantee the provision of round-the-clock, constant, and proper care for a person requiring assistance.
Secondly, the absolute prohibition against performing [paid] work by carers of disabled persons was not justified by any of the values set forth in Article 31(3) of the Constitution; thus, the prohibition did not meet the requirement of necessity.
Thirdly, the requirement that a carer of a disabled person should remain without [paid] work in current social circumstances – particularly given the widespread practice of remote work – was not proportionate, i.e. the impact of this restriction was not proportionate to the burdens placed on the carer of a disabled child. The forced inactivity of people capable of working, of working age, and often highly qualified, led to professional and social exclusion, and consequently even to permanent exclusion from the labour market.
In the Tribunal’s view, the absolute prohibition against the performance of paid work by carers of disabled persons – as the prerequisite for obtaining a care allowance – exceeded the necessary and admissible degree of the legislature’s restriction of the freedom to work, which is protected in the light of the principle of human dignity. Due to its absolute nature, the said prohibition violated the essence of the constitutional freedom to work, and thus it was deemed inconsistent with Article 65(1) in conjunction with Article 31(3) in conjunction with Article 30 of the Constitution.
The adjudicating panel in the case under examination comprised the following judges of the Constitutional Tribunal: Judge Jakub Stelina as the Presiding Judge; Judge Wojciech Sych as the Judge Rapporteur; Judge Rafał Wojciechowski; Judge Jarosław Wyrembak; and Judge Andrzej Zielonacki.