Press release after the hearing Print

The right to a care allowance due to giving up employment, or other paid work – excluded with regard to a person formally remaining in an employment relationship but actually taking care of a child during childcare leave SK 50/22

On 4 December 2025, the Constitutional Tribunal delivered its ruling on the constitutional complaint concerning the right to a care allowance due to giving up employment, or other paid work, as excluded with regard to a person formally remaining in an employment relationship but actually taking care of a child during childcare leave.[*]

The Constitutional Tribunal adjudicated that: “Article 17(1) of the Family Benefits Act of 28 November 2003 (Journal of Laws – Dz. U. of 2025, item 1208), in the version that was in force until 31 December 2023 – insofar as the challenged provision stipulates that the right to a care allowance due to giving up employment, or other paid work, is excluded with regard to a person who is on childcare leave and who takes care of a disabled child – is inconsistent with Article 71(1), second sentence, in conjunction with Article 32(1) of the Constitution of the Republic of Poland”. Moreover, the Tribunal discontinued the proceedings as to the remainder. The ruling was unanimous.

The constitutional issue raised in the [constitutional] complaint under consideration pertains to the criteria – which were in force until 31 December 2023 – for granting a care allowance and to the possibility of applying for the right to such an allowance in the case of a mother on childcare leave looking after her disabled child (challenged Article 17(1) of the Family Benefits Act of 28 November 2003, Journal of Laws – Dz. U. of 2025, item 1208, hereinafter: the Family Benefits Act). The Act of 7 July 2023 Amending the Family Benefits Act [hereinafter: the Amending Act] has changed the substance of the legal norm under the constitutional review in the present case; however, in the light of the transitional provision, the challenged provision remains relevant to the complaint’s case. As a side remark, it should be pointed out that the Amending Act, which entered into force on 1 January 2024, has modified the provisions on a care allowance, by eliminating the indication that the said benefit is to be granted due to giving up employment or other paid work.

What follows from the complainant’s reasons for the constitutional complaint is that the challenged provision does not ensure the appropriate protection of the complainant’s family life, and in particular of her bond with her disabled child, where the said bond needs reliable support from the state. In the complainant’s view, the requirement of the permanent termination of an employment relationship – as a prerequisite for acquiring the right to a care allowance – is excessive and disproportionate. The termination of an employment relationship usually entails the loss of the possibility of returning to one’s previous workplace, a break in work experience, the weakening of one’s position in the labour market, as well as the lowering of future chances of taking up paid work that is necessary to support one’s family. Also, a care allowance does not provide financial support that is comparable to the income obtained from remuneration for work. Moreover, the complainant pointed out that – since the essential purpose of a care allowance is to provide financial support to a person who is capable of work but does not work due to the necessity to look after a disabled family member – it is incomprehensible to differentiate between the situation of a mother who has, due to the said necessity, terminated her employment relationship, and receives a care allowance, and the situation of a mother who, due to the same necessity, is on childcare leave. In both situations, work is not performed and no remuneration is generated, and thus the welfare purpose of a care allowance is relevant to the same extent. In the complainant's opinion, the exclusion of mothers on childcare leave from the group of eligible persons violates the constitutional obligation to provide special assistance to families in difficult situations and to mothers after childbirth. 

Therefore, the Constitutional Tribunal [hereinafter also: the Tribunal] analysed the subject matter of the constitutional review in terms of its conformity with Article 71(1) in conjunction with Article 32(1) of the Constitution.

Firstly, the Tribunal confirmed that Article 71(1), second sentence, of the Constitution of the Republic of Poland [hereinafter also: the Constitution] formulates a subjective right by stating that families – finding themselves in difficult material and social circumstances – shall have the right to special assistance from public authorities. The said special assistance exceeds the scope of standard support provided by the state. In this context, ‘special assistance’ implies public authorities’ actions that go beyond the typical level of constitutionally guaranteed protection, adjusted to accommodate extraordinary life situations, including the necessity to provide constant care to a disabled person at the expense of occupational activity (see the Tribunal’s judgments: of 9 July 2012, ref. no. P 59/11; of 15 November 2005, ref. no. P 3/05).

The wording ‘special assistance’ may also be found in other provisions of the Constitution. The said phrase appears in the provision requiring that public authorities ensure “special health care” to children, pregnant women, disabled persons, and persons of advanced age (Article 68(3) of the Constitution). The concept of ‘special assistance’ underlying the above-mentioned Articles of the Constitution should be construed in the same way in all the invoked constitutional provisions. What follows from the said concept is the necessity, on the part of public authorities, to take measures that exceed the scope of the general standard of protection afforded to rights and freedoms. Thus, what is meant here is activity representing a higher level of protection than the typical level of constitutionally guaranteed protection (cf. the Tribunal’s judgment ref. no. SK 22/22). In scholarly legal writing, it is pointed out that “[t]he fundamental purpose of a care allowance is to help the persons who are giving up employment due to the necessity to look after a disabled family member. The state thus supports those who – by taking upon themselves to provide care to disabled persons – take on the responsibilities that lie with the state” (B. Chludziński, commentary on Art. 17, in P. Rączka (ed.) Świadczenia rodzinne. Komentarz (Wolters Kluwer Polska 2021), p. 423). In other words, a care allowance is a statutory measure actualising the guarantee of special assistance, referred to in Article 71(1) of the Constitution, for families in difficult situations. The care allowance itself constitutes the state’s support for the person who is capable of work but is unemployed and performs no other paid work, due to the necessity to look after a disabled child where the said person has a maintenance obligation towards that child. Moreover, what should be emphasised is that – irrespective of the compensatory function of the care allowance – the allowance benefits the whole family, and in particular the disabled family member who is looked after by one of his/her closest relatives.

At the same time, the Tribunal stressed that the constitutional regulation does not relieve the family from the obligation to support itself and the family members from their maintenance obligations, which directly arises from the principle of subsidiarity, expressed, inter alia, in the Preamble to the Constitution. “Indeed, the Constitution implies a prohibition against relieving family members from their maintenance obligations by means of creating a competitive system of family benefits” (cf. judgment ref. no. P 3/05).

Consequently, the Tribunal deemed that the legislature’s solution where the granting of the aforementioned care allowance depends on fulfilling the additional requirement of the termination of the relevant employment relationship, together with the [legislature’s] failure to grant protection to a mother looking after a disabled child during childcare leave, remains contrary to the requirement of special protection.

Secondly, as regards the principle of equal access to a care allowance, in its well-established jurisprudence [i.e. case law], the Tribunal stated that Article 32(1) of the Constitution should be considered in terms of the relevant characteristics of the addressees of legal norms. If a relevant characteristic occurs to an extent that is significant in the context of a given case, then the persons sharing that characteristic should be treated in a similar way. Similar treatment basically entails refraining from unjustified favourable or discriminatory differentiation among similar parties. This refers to both obligations and rights. As the Tribunal explicitly stated: “only if a reviewed legal norm provides for differentiation in the treatment of its addressees displaying a certain common characteristic can one speak of a departure from the principle of equality, which should be assessed with a view to the criterion of differentiation, adopted by the legislature (the Tribunal’s judgment of 18 October 2023, ref. no. SK 23/19, OTK ZU A/2023, item 88).

What follows from the constitutional principle of equality is the requirement that those subjects of rights and obligations under law who belong to a certain category should be treated equally. With regard to cases concerning a care allowance, relevant shared characteristics are as follows: (1) looking after a child who requires constant care; (2) not taking up paid work for this reason; and (3) the family’s low income. Refusal to ensure support to the close relatives [of the disabled child] undermines the legal assumption about the “reasonable legislature” and is contrary to the requirements arising from Article 71(1) of the Constitution (cf. the Tribunal’s judgment ref. no. P 41/07).

In its judgment ref. no. SK 2/17, the Tribunal stated the following: “an essential characteristic distinguishing the category of persons to whom the guarantee of equal treatment is to be applied in this case is the fact that they care for a disabled person and therefore do not perform paid work. This means that the essence of the identical situation of those carers is that they voluntarily forwent the possibility of performing paid work. However, in order to establish this circumstance, it must be proven that a person who is entitled to a pension on the grounds of partial incapacity for work is capable of taking up paid work and, consequently, of giving it up in order to care for a disabled person”.

Thus, the complainant is right in arguing that the factual and legal situations of mothers who have terminated their employment relationships and mothers who are on childcare leave indicate that, in fact, their situations are similar. Although these situations are not identical, they can be regarded as similar from the point of view of the objectives of the care allowance. Childcare leave results in the loss of entitlement to remuneration, due to caring for a disabled child, in an analogous way as in the case of permanent termination of employment.

The Tribunal in its previous jurisprudence pointed out that: “the fundamental purpose of a care allowance is to ‘partially cover the expenses incurred by the family in connection with the necessity to provide care to a disabled child or adult’. In essence, a care allowance is a benefit intended to secure the livelihood of disabled persons by supporting their carers” (see the Tribunal’s judgment ref. no. SK 7/11).

With a view to these circumstances, the legislature’s exclusion of the possibility that a mother on childcare leave could receive a care allowance – which entails depriving her disabled family member of welfare assistance in this regard – constitutes disproportionate and unjustified differentiation. Consequently, there are no grounds for excluding persons on childcare leave from receiving a care allowance.

Differentiating between the situations of mothers on childcare leave and mothers who have terminated their employment agreements is disproportionate and unjustified. Such differentiation entails that the family of a disabled person is burdened with the costs of care and the disabled family member is deprived of welfare assistance in this regard, even though the objectives of a care allowance will in fact be met if the mother takes childcare leave.

Being free from the obligation to perform professional work during childcare leave (with no legal grounds for the employer to compel the mother to return to work, except in the case of her ceasing to be the carer for her child), the mother is able to provide care to her disabled child both in person and in a continuous manner.

Since a mother fulfils her moral and legal obligations towards her disabled child and this makes her forgo her professional activity, then she should receive appropriate state assistance in her efforts. Singling out – from the group of persons actually taking care of children in accordance with the requirements of Article 17(1) of the Family Benefits Act – only those mothers who have terminated their employment relationships, and subsequently granting only them the right to a care allowance, violates the constitutional principle of equality (Article 32(1) of the Constitution).

Thus, the introduction of a formal prerequisite alone, where it is not adequately justified and proportionate, resulted, in the present case, in the unconstitutionality of the challenged norm. Taking the above into consideration, the Tribunal ruled that Article 17(1) of the Family Benefits Act, in the wording that was in force until 31 December 2023 – insofar as the challenged provision entails that the right to a care allowance due to giving up employment, or other paid work, is excluded with regard to a person who is on childcare leave and who takes care of a disabled child – is inconsistent with Article 71(1), second sentence, in conjunction with Article 32(1) of the Constitution.

With regard to the other higher-level norms for the review which were indicated in the complaint, the Tribunal discontinued the proceedings, deeming those higher-level norms to be inadequate. As regards the other challenged provisions under review i.e. Article 3(22) of the Family Benefits Act, invoked in conjunction [with Art. 17(1)], the Tribunal discontinued the proceedings on the basis of Article 59(1)(2) of the Act of 30 November 2016 on the Organisation of the Constitutional Tribunal and the Mode of Proceedings Before the Constitutional Tribunal (Journal of Laws of 2019, item 2393), due to the inadmissibility of issuing a judgment. Indeed, the said provision does not comprise any normative content with reference to which the complainant formulated the allegation of unconstitutionality.

As far as the effects of the judgment are concerned, the judgment entails that a person who was on childcare leave and had submitted an application for a care allowance by 31 December 2023 (regardless of the outcome of the submission), retains the right to apply for a care allowance under the provisions of the Family Benefits Act in the wording that was in force until 31 December 2023. As for the complainant, the judgment in the present case – pursuant to Article 190(4) of the Constitution – constitutes the basis for the reopening of the relevant proceedings.

The adjudicating panel in the present case comprised the following judges of the Constitutional Tribunal: Judge Krystyna Pawłowicz as the Presiding Judge; the President of the Constitutional Tribunal, Judge Bogdan Święczkowski as the Judge Rapporteur; the Vice-President of the Constitutional Tribunal, Judge Bartłomiej Sochański; Judge Jakub Stelina; and Judge Michał Warciński.