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.