Pursuant to Art. 61 of the Social Welfare Act, the persons obliged to pay a fee for staying in a social welfare home are in the following order:
- a resident of the house, and in the case of minors, a statutory representative from the child’s income,
- spouse, descendants before ascendants,
- the commune from which the person was referred to the social welfare home
– however, the persons and the commune specified in points 2 and 3 are not obliged to pay fees if the resident of the house pays the full amount.
The Act does not specify whether the spouse’s obligation precedes the obligation of the descendants, or which specific persons among the descendants or ascendants are to be charged the fee. The jurisprudence has also not developed a uniform position in this respect,
Some judgments refer to the Family and Guardianship Code and model the order of payment on the maintenance obligation (so the Provincial Administrative Court in Kielce in the judgment of January 10, 2019, II SA/Ke 759/18, LEX no. 2619010).
In other judgments, when determining the order of charging descendants or ascendants, it is possible to take into account benefits received by them from a resident of a social welfare home (Judgment of the Provincial Administrative Court in Gdańsk of November 28, 2019, III SA/Gd 444/19, LEX no. 2758821.
Finally, there is also a view that all persons from a given group should be charged fees and their situation may be differentiated only due to their income (judgment of September 21, 2017, I SA/Wa 704/17, LEX No. 2376391, Provincial Administrative Court in Warsaw). In such a situation, the authority should conduct proceedings simultaneously against all persons belonging to the same group of persons obliged to pay the fee for the resident’s stay in the social welfare home. These persons should be notified of the initiation of proceedings and should be parties to these proceedings, and they should all be subject to the decision issued on establishing the obligation to pay for a resident’s stay in a social welfare home” (similarly, the judgment of the Provincial Administrative Court in Warsaw of June 27, 2018, VIII SA/Wa 198/18, LEX no. 2523717).