In the opinion of the Human Rights Ombudsman of the Republic of Slovenia (Ombudsman), it is an interference with the provisions of Article 50 of the Constitution of the Republic of Slovenia if legal rights from public funds are interfered with, even if there would otherwise be valid reasons for this, but the solution is not properly included in the current legislation. The Ministry of Labour, Family, Social Affairs and Equal Opportunities accepted the position and committed to the appropriate legal regulation.

* * *

The centre for social work (centre) rejected an application for a state scholarship and child allowance for siblings, because a child of full age who has not yet turned 26 and is in school is not considered a family member, namely due to the recognised status of a person with disabilities and the right to disability compensation according to the Social Inclusion of Disabled Persons Act (ZSVI). The centre based its decision on (they did not state this in the decision itself, but informed the complainants separately) the provision of Article 27 of the ZSVI, which stipulates that with the date of entry into force of the ZSVI, the maintenance obligation of the parents, as regulated by Paragraph 2 of Article 123 of the Marriage and Family Relations Act (Official Gazette of the RS, nos. 1/89 and 64/01; ZZZDR until the amendment) ceases to apply.

A legal remedy was filed against the decision, which must be decided by the Ministry of Labour, Family, Social Affairs and Equal Opportunities (MDDSZ); however, the Ombudsman asked for a position of principle regarding the issue of MDDSZ.

With the Law on Amendments and Supplements to the Marriage and Family Relations Act (ZZZDR-C), the aforementioned provision of Article 123 of the ZZZDR was otherwise amended until the amendment (Article 26 of the ZZZDR-C), but then the Constitutional Court of the Republic of Slovenia in its decision U-I-11/07 of 13/12/2007 found inconsistency with the Constitution of the Act on Social Care of Persons with Mental and Physical Impairments (Official Gazette of the SRS, no. 41/83) and decided that until the identified discrepancy is eliminated, the basic maintenance of disabled people according to the Act on Social Care of Persons with Mental and Physical Impairments is also ensured by the maintenance obligation of the parents as was dictated by Article 123 of the ZZZDR prior to the implementation of Article 26 of the ZZZDR-C.

According to the Ombudsman, the provision of Article 27 of the ZSVI does not abolish the duty of parents to support a child between the ages of 18 and 26, if they are schooled in one of the programmes from Article 183 of the Family Code (DZ), if due to a severe physical or mental disability (definition of paragraph 2 of Article 123 of the ZZZDR until the amendment) the child is incapable of independent living, or if they have permanent congenital or acquired impairments and are unable to integrate socially into the community due to their disability without the provision of social integration services and cannot independently fulfil most or all of their living needs and provide for themselves and can assert the right to monetary benefits and opportunities provided by the state for their equal inclusion in society (definition of the ZSVI).

In its response, the MDDSZ explains that the legislator significantly increased the amount of disability compensation in the ZSVI. In addition to compensation, persons with the status of persons with disabilities under the ZSVI can also obtain the right to an allowance for assistance and service. In this way, the legislator made it possible for people with disabilities under the ZSVI to support themselves with their own resources. The MDDSZ agreed with the position of the Ombudsman that Article 27 of the ZSVI does not interfere with the obligation to support a child according to Article 183 of the DZ. In relation to determining the circle of related persons when exercising rights from public funds, it explained that according to the Exercise of Rights from Public Funds Act (ZUPJS), a person with extended parental rights is excluded from the circle of related persons (in accordance with the DZ a child who is of age and is under guardianship).

The MDDSZ considers that, using the analogy of persons with extended parental rights, for children of full age, younger than 26, with a status according to the ZSVI, who are in school and whose parents are still obliged to support them, it needs to be considered that in the exercise of all rights from public funds they are considered as single persons and no longer as part of their parents' family.

The Ombudsman generally accepted the views of the MDDSZ regarding the reasons for the difference in the treatment of beneficiaries under the ZSVI and other children when exercising rights from public funds for individual families, but at the same time believes that the MDDSZ’s position should also be legislated accordingly. According to the Ombudsman, such an explanation by analogy as used by the MDDSZ between persons "with extended parental rights" and a person under the age of 26, with a status according to the ZSVI, who is in school, from the point of view of protecting the rights of individuals, may be appropriate in cases when the position of the beneficiary(ies) is improved by such interpretation. However, according to the Ombudsman, such an interpretation by analogy can be controversial when it causes an infringement of rights.

According to the Ombudsman, the interpretation of the regulation in the manner given by the MDDSZ also means, in the vast majority of cases, an improvement in the material situation of the family. In the specific case considered by the Ombudsman, the family's rights from public funds were reduced because the child, the recipient of rights under the ZSVI, was not included in the family. The Ombudsman therefore believes that the current legislation in the field of public funds should explicitly define the position of adult persons up to the age of 26 who are in school, in relationship of recipients of rights under the ZSVI to their parental family, because reasoning by analogy does not provide a sufficient basis for reducing the scope of the right where the right should be recognised in a higher scope simply by following the express and clear legal provisions.

Thus, the Ombudsman considered the complaint justified. The MDDSZ, however, undertook to take the Ombudsman's point of view into account in such a way as to prepare a corresponding amendment to the legislation. 9.5-5/2023