The permissibility of attaching a progenitor’s invalidity pension in order to fulfil an obligation to make maintenance payments due to a minor child
Maintenance of dependent child
Protection of and assistance to children
RULING Nº 306/05
8 of June of 2005
The provision allowing a portion of a parent's disability pension to be allocated to payment of maintenance to an underage child, thereby depriving the pensioner of adequate income for his essential needs, is contrary to the principle of human dignity (embodied in the principle of rule of law).
In the present case, the point at issue is the extent to which the parent's disability pension (and not some other source of income) can be "attached" in order to fulfil the obligation to provide for an underage child (and not any other maintenance obligation), but here regard cannot be had solely to the principle of human dignity given that contempt of the right to receive maintenance directly affects the living conditions of the entitled person and, for children at least, entails the risk of imperilling, if not the right to life, at least the right to a decent life.
The obligation of support by which parents are bound (one of those constituting parents' duty to assist their underage children) cannot be reduced to the mere payment of a sum of money when it comes to determining the constitutionality of the arrangements made for the effective performance of that duty. For a defaulting parent it is a matter not only of discharging a debt but also of fulfilling a duty which has its own constitutional definition as a fundamental duty and provision of support as its prime element.
In the challenged decision, it was held that apart from the disability pension fixed at 189.54 €, the appellant (drug-addicted, with no paid employment) had no other known income. Consequently, the compulsory allocation of the amount necessary for payment of the maintenance owing to the underage child would reduce the remaining income to 89.54 € and place the pensioner's subsistence at risk. The impugned provision, construed as imposing this allocation (without specifying any exempted minimum amount) would thus be unconstitutional in violating the principle of human dignity enshrined in Article 1 of the Constitution.
The criterion for determining the portion of the parent's income that cannot be allocated to coercive payment of the maintenance owing to the child does not depend on the national minimum wage level; moreover, until the children's essential needs are fulfilled, the income retained by the parents must not exceed the amount necessary to meet their subsistence needs. The material problem of ascertaining whether and above what threshold this allocation of the disability pension drawn by the person liable for maintenance is to be considered constitutionally inadmissible must be weighed against the safeguarding of the right to a subsistence level compatible with a minimum standard of decency or corresponding to a minimum sufficient for survival. In the present case, the aspect open to challenge, because a minimum amount exempt from forced allocation was not determined, was the negative dimension of the subsistence guarantee, namely the recognition of a right not to be deprived of the means considered essential for maintaining the income absolutely necessary to live at a minimum standard of decency. In addition, regard must be added to the fact that coercive payment of the allowance owing to the child was impossible in this case and entailed payment of welfare benefits in the ambit of the State's responsibility to protect children (Article 69 of the Constitution).
The criterion of the minimum wage having been rejected, the legal system offers another positive reference value that can be used as a criterion indicating the limit of "exemption from attachment" for this purpose: the "social integration income" corresponding to the application, in its positive dimension, of the minimum subsistence guarantee. It comprises a benefit included in the solidarity category under the public social security system and an integration programme in order to grant individuals and their families forms of assistance suited to their personal circumstances, helping to fulfil their essential needs and assisting occupational, social and community integration in a progressive manner.
The Court has already been called upon to determine the constitutionality of the provisions permitting the attachment of income derived from social welfare pensions or from occupational income not exceeding the national minimum wage (Judgments 62/02, 177/02 and 96/04). According to this case-law, the Court has taken the national minimum wage as a reference figure for income (derived from social welfare pensions or employment) whose attachment is deemed incompatible with the principle of human dignity. Children are the direct beneficiaries of this fundamental duty. The provision of support is an integral part of a paramount duty which, although it can be implicitly inferred from other passages in the Constitution [recognition of the family as a fundamental element of society (Article 67); protection of children from abandonment in any form (Article 69)], is expressly recognised as a corollary to children's fundamental right to be supported by the parents.