by Admin2 | Oct 2, 2023 | news-en
The maintenance obligation arising from the content of Art. 128 of the Family and Guardianship Code may be implemented in various ways. The person entitled to it is not always obliged to be able to take care of it on their own. The entitled person may, for example, be an elderly and sick person who requires constant care. Therefore, a situation may arise in which such a person will have to be placed in a social welfare home. The Act on Social Assistance specifies the group of persons obliged to pay fees and the amount of the fees themselves. At the request of the person paying the fee or obliged to pay such a fee, these persons may be exempted partially or completely from the obligation to pay fees for staying in a social welfare home. However, the existence of such a possibility depends on the prior imposition of an obligation on the obliged person to pay such fees. Therefore, it is impossible to apply for exemption from the fee for staying in a social welfare home if the person obliged to pay the fees has not been previously determined and the amount of the monthly fee for the stay has not been determined.
by Admin2 | Sep 5, 2023 | news-en
If, in the event of ineffective enforcement, the commune head, mayor or president of the city having jurisdiction over the place of residence of the entitled person - the creditor - requests to take action against the alimony debtor, the debtor's competent authority conducts an alimony interview. The purpose of such activities is to determine the family, income and professional situation of the alimony debtor, his health, as well as the reasons for not contributing to the maintenance of the entitled person. As indicated by the Provincial Administrative Court in Poznań in its judgment of January 31, 2019, the so-called "actions against the alimony debtor" are primarily aimed at restoring the expected state of affairs in a situation where there is a "failure to provide for the maintenance of the entitled person"" (Judgment of the Provincial Administrative Court in Poznań of January 31, 2019, II SA/Po 1062/18, LEX no. 2705604).
The essential part of the alimony interview is receiving a declaration of assets from the debtor, during which the financial situation of the debtor is determined, such as real estate, movable property and other resources owned. Explanations are provided under penalty of criminal liability for submitting false testimony. The case law emphasizes that the alimony interview must take place with the participation of the authority. The debtor is only the person who gives the interview, so he cannot submit it himself. The Provincial Administrative Court in Gliwice reminds us of this in its ruling in the case no. no. IV SA/Gl 1016/17 (Judgment of the Provincial Administrative Court in Gliwice of July 26, 2018, IV SA/Gl 1016/17, LEX no. 2537174.). Maintenance interview referred to in Art. 4 of the Act of September 7, 2007 on assistance to persons entitled to alimony, is carried out on the basis of a questionnaire, the template of which is specified in the Regulation of the Minister of Labor and Social Policy of March 23, 2011 (Journal of Laws No. 73, item 395). The above-mentioned legal act also established a template for the declaration of assets of the alimony debtor.
A negative condition for taking the discussed actions is the situation where the head of the social welfare center has a family environmental interview regarding the debtor, carried out on the basis of the provisions of the Act of March 12, 2004 on social welfare (consolidated text: Journal of Laws of 2023, item 901, as amended). d.). If such an interview was conducted and is not older than three months, then the competent authority of the debtor applies for its issuance.
by Admin2 | Aug 1, 2023 | news-en
On May 31, 2022, the Provincial Administrative Court in Wrocław issued a judgment on the exemption of the descendant from the fee for staying in a social welfare home. The key legal act regulating the above matter is the Act of 12 March 2004 on social assistance (i.e. Journal of Laws of 2023, item 901, as amended), and in particular articles 64 and 64a. According to the approved thesis of the judgment, "the complainant's negative attitude towards his father and the lack of any relationship with him cannot affect the very existence of the obligation to pay fees" for the stay of a resident in a social welfare home. As indicated by the court, the obligation arising from Art. 61 of the aforementioned Act, remains in a functional relationship with the provisions of the Family and Guardianship Code on alimony, however, above all, it is a public-law burden arising at the moment of accepting a person referred to DPS. Thus, its incurrence is intended to cover the costs of living of a resident determined in the administrative procedure. On the other hand, the administrative court drew attention to the direction of subsequent amendments to the Act on Social Assistance, which express the need to guarantee greater protection to family members of residents of these institutions.
The decision that gave rise to these considerations was issued on the basis of the following facts. The complainant asked for cancellation of the arrears arising from the failure to pay the amount due for his father's stay in a social welfare home due to his difficult situation. In the justification for the application for full exemption from payment, he also pointed to negative relations with his father. The complainant was met with a refusal decision, which - as a result of the appeal lodged - was upheld by the authority of the second instance. Dissatisfied with this decision, the complainant then filed a complaint against the final decision to the Voivodeship Administrative Court. In its decision, the Provincial Administrative Court agreed with the authorities of both instances that it is the complainant who is obliged to pay for his father's stay in the institution. Pursuant to the regulation contained in Art. 61 sec. 2 ups The following persons are obliged to pay the fees in a specific scope: the resident of the home, the spouse, the descendants before the ascendants, and the commune from which the person was referred to a social welfare home. However, in the course of the considerations made, the court came to the correct conclusion, in which it correctly pointed out the differences in the interpretation of Art. 64 and 64a, which obliged to eliminate the decisions of the authorities of both instances from legal circulation. The first of the articles allows the obligor to be released from payment, and if the conditions set out in the second are met, such exemption must take place, it takes place ex lege.
The standard from art. 64a is bound. The burden of proof rests with the person applying for the exemption from payment. If only the obligated person submits an appropriate application and presents a final court decision on depriving the resident of parental authority over that person and declares that parental authority has not been restored or a final court decision on conviction of that resident for an intentional crime prosecuted by public indictment committed to the detriment of the person obliged to payment of the fee, its descendant, a minor or an adult helpless due to age, mental or physical condition of a sibling or their parent, unless the conviction has been expunged, the role of the authority conducting the proceedings "is de facto limited to issuing a decision exempting from this fee." (E. Żołnierczyk, Special circumstances regarding relations between family members as the admissibility of exemption from payment for a resident's stay in a social welfare home. Commentary approving the judgment of the Provincial Administrative Court in Wrocław of May 31, 2022 (IV SA/Wr 590/21), OwSS 2023, No. 1, pp. 132-138). The situation is different with regard to Art. 64 u.p.s. The legislator, noting that the applicant often does not have the required documents, either due to the passage of time or due to the fact that the appropriate procedure to obtain them has never been initiated, which may be due to various reasons of a moral nature or fear, introduced the possibility of optionally applying for exemptions from payment. In the case of exemption based on the standard of art. 64 u.p.s. discretionary character is not only the exemption itself, but also its scope. What is worth emphasizing clearly, the authority granting the exemption provided for in Art. 64 A.P.S., operates under conditions of a certain kind of arbitrariness, which, however, cannot in any way be equated with arbitrariness. The action must always comply with the law and have a legal basis. In the judicial and administrative jurisprudence, already before the judgment in question, it was rightly pointed out that there were no grounds for limiting the examination of the grounds for exemption only to the sphere of the material status of the obligated persons. “Relationships and family ties can be established by authorities and assessed ko special case', justifying the granting of the request for exemption. In addition to the economic situation, grounds for discretionary exemption were added to grounds relating to family relationships. The changes were additionally strengthened by the amendment, in force since January 27, 2022, under which point 7 was added. It indicates further circumstances of dismissal, namely "gross violation by a person directed to a social welfare home or a resident of the home of the maintenance obligation or other family obligations towards person liable to pay the fee. It is rightly argued in the doctrine that interpretation difficulties may arise against the background of the interpretation of a "gross" violation of the maintenance obligation or other family obligations. Nevertheless, by way of example, the administrative court reminded that these obligations include those defined in detail in the provisions of the Family and Guardianship Code. regarding the exercise of parental authority and the relationship between the parent and the child - including: the obligation to respect and support each other, or the obligation to maintain contacts.
Finally, it should be noted that the court agreed with the complainant and found that the term used in Art. 64 sec. 2 ups the phrase "in particular" means that the specified list of grounds justifying the fee waiver is an exemplary list. The catalog is open, which in turn means that the justified circumstances that justify the application should be assessed individually in the context of a specific case.
by Admin2 | Jul 3, 2023 | news-en
The basic source of the maintenance obligation in Polish family law is Art. 128 of the Family and Guardianship Code. It provides that the obligation to provide means of subsistence, and, if necessary, also means of upbringing (maintenance obligation) is imposed on relatives in a straight line and siblings.
There is no standard in Polish law that would rigidly define the amount of the benefit, leaving it possible for the court to determine it. This means that the amount of maintenance awarded by the court will be the resultant of the needs of the entitled party and the capacity of the obligated party, in accordance with Art. 135 §1 of the Family and Guardianship Code.
The ability to pay maintenance is not determined by the achieved, declared earnings, but by the objective, actual earning capacity. The scope of the maintenance obligation may and should be greater than that resulting from the actual earnings and income of the obligor, if with the full and proper use of his strength and skills, earnings and income would be greater, and the existing socio-economic conditions and important reasons for such use do not stand in the way. – judgment of the District Court in Sieradz of January 22, 2020, file ref. I Ca 531/19
However, the judge does not have full freedom in assessing the situation of the entitled person. The Family and Guardianship Code introduces a rule that requires the omission of certain types of benefits when determining the size of the maintenance obligation. According to Art. 135 §2 of the Family and Guardianship Code:
“The scope of maintenance benefits is not affected by:
- benefits from social assistance or the alimony fund referred to in the Act of 7 September 2007 on assistance to persons entitled to alimony, to be reimbursed by the person liable for alimony;
- benefits, expenses and other financial resources related to placing a child in foster care, referred to in the provisions on supporting the family and the foster care system;
- the childcare benefit referred to in the Act of 11 February 2016 on state aid in raising children;
- family benefits referred to in the Act of 28 November 2003 on family benefits;
- supplementary parental benefit referred to in the Act of 31 January 2019 on supplementary parental benefit”.
The above benefits are of an auxiliary nature for the entitled person. They result from the general obligation of the state to provide protection and support to given individuals.
On the other hand, the maintenance benefit results from a special, i.e. personal relationship between the obligated party and the entitled party.
Therefore, social benefits do not affect the scope of the maintenance obligation. It could happen that the state would take over the entire burden of maintaining persons entitled to maintenance, which in the opinion of the legislator is not a desirable situation.
At this point, it should also be noted that benefits from the Alimony Fund in no way exempt from the obligation to pay maintenance.
In accordance with the decision of the Supreme Administrative Court of November 24, 2022 on the reference number
I OSK 1851/20: The fact of paying benefits from the maintenance fund to a minor does not release the obligor from the obligation to provide maintenance to his own child.
by Admin2 | Jun 1, 2023 | news-en
The judgment of the Supreme Court of August 18, 2020 in the case with reference number II CSK 12/20 was issued as a result of a cassation appeal by the defendant, the child's father, against the judgment of the court of second instance. The claimant, the child's mother, bore the maintenance burden in relation to her child not only to the extent that she was obliged to do so, but also to the extent that the defendant should have paid for the child. The court of second instance increased the amount awarded to the plaintiff for the claim provided for in Art. 140 § 1 of the Family and Guardianship Code, i.e. providing another person with means of subsistence or upbringing, despite the lack of such an obligation towards him or in the event of such an obligation arising due to excessive difficulties in collecting these benefits from the person who is first obliged. This amount was increased to PLN 262,556.
The Supreme Court recalled its jurisprudence to date, according to which a cassation appeal is inadmissible in the context of a claim under Art. 140 § 1 of the Family and Guardianship Code, regardless of the value of the subject of the appeal. Therefore, the fact that the value of the claim amounted to PLN 262,556 was not relevant in this case.
The court adopted the interpretation that although the recourse claim under Art. 140 § 1 of the Family and Guardianship Code is not a claim for maintenance, but it belongs to the scope of maintenance cases within the meaning of Art. 398(2) § 2 point 1 of the Code of Civil Procedure, because the child's mother bore the maintenance burden beyond her own obligation and sought to award the child's father the costs of the maintenance burden he should have borne. Therefore, the cassation appeal in this respect is inadmissible and as such was rejected by the Supreme Court.
by Admin2 | May 1, 2023 | news-en
The Maintenance Fund is a separate mass of funds intended for a specific purpose, which in this case refers to securing the payment of maintenance whose payers turned out to be insolvent or evaded payment.
The history of the Fund dates back to the 1970s, when in 1974 the Alimony Fund Act was passed. The funds were to be administered by the Social Insurance Institution. In 2003, the institution of the so-called maintenance advance, which was intended to replace the Fund. However, the idea turned out to be so ineffective that in 2008 the Alimony Fund was reactivated following the adoption of the Act on assistance to persons entitled to maintenance.
Going to the land of legal act, it should be noted that in art. 1 sec. 2 there is a legal definition of the Fund in the following wording: "The maintenance fund is a system of supporting persons entitled to maintenance with funds from the state budget." Importantly, the legislator makes a reservation that the alimony fund is not a fund within the meaning of the provisions on public finance. Thus, the indicated institution acquires an independent character, slightly detached from the usual associations with financial law regulations.
Benefits from the Maintenance Fund are available primarily to Polish citizens, but also to certain groups of foreigners, i.e. those for whom it results from bilateral agreements on social security binding the Republic of Poland, residing in the territory of the Republic of Poland on the basis of a permanent residence permit, a resident's residence permit a long-term European Union permit and a temporary residence permit, as well as those residing on the territory of the Republic of Poland in connection with obtaining refugee status or subsidiary protection.
Further on in the Act, i.e. in Chapter 4, the legislator indicates the procedure in which benefits from the Fund are granted. The provisions stipulate that the determination of the right to benefits from the Maintenance Fund and their payment are made at the request of the entitled person or their statutory representative, respectively. Such an application is submitted to the commune or city office competent for the place of residence of the entitled person. The application should be accompanied by documents listed in the following provisions of the above-mentioned regulations. of the act. At the same time, the authority conducting enforcement proceedings against the person liable for maintenance is obliged to send a certificate of ineffective enforcement within 14 days from the date of receipt of the summons.
Finally, the legislator decides that decisions issued in cases related to granting benefits from the Maintenance Fund are immediately enforceable, with the exception of decisions in cases concerning benefits received unduly. These benefits are paid to the entitled person on a monthly basis.
