The Human Rights Ombudsman of the Republic of Slovenia believes that if valid regulations are understood in the sense that a child’s duty to support the livelihood of their parents comes before the child’s right to schooling (and would therefore be able to go to school only on the condition that, in addition to the means for his or her own subsistence and schooling, he or she is also able to provide means for the maintenance of their parents, or, according to the current regulation of the exercise of rights from public funds, also means for the maintenance of other family members (brothers, sisters, half-brothers or half-sisters), or even persons to whom they are not related (e.g. the child of a partner of one of the parents), this presents an encroachment on the provisions of Articles 2, 14, and 57 of the Constitution of the Republic of Slovenia. Such an arrangement puts children from socially weaker families in a significantly worse position than children from families with a better material position in terms of access to education. The Ministry of Labour, Family, Social Affairs and Equal Opportunities accepted the position and committed to the appropriate legal regulation.

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The Human Rights Ombudsman (hereon: Ombudsman) received a complaint regarding the non-acknowledgement of the right to monetary social aid and security aid due to opportunity income which the complainant’s two daughters who are of age but still attend school gain with occasional jobs, since they need the funds for their own livelihood.

The Ombudsman explained to the complainant how they can exercise their right through legal means. At the same time, the Ombudsman addressed to the Ministry of Labour, Family, Social Affairs and Equal Opportunities (MDDSZ) a principled question regarding the interrelationship between provisions of Articles 183 and 185 of the Family Code (DZ), especially when exercising rights from public funds.

In Article 183, Paragraphs 2 and 3 the DZ stipulates the duty of parents to financially support an adult child who goes to school regularly in accordance with their abilities. In Article 185, the DZ stipulates that an adult child must maintain their parents according to their abilities if the parents do not have sufficient means for living and cannot acquire them. Article 185 of the DZ does not define any special arrangement for a child attending school.

According to the Ombudsman, even taking into account the provisions of the regulations defining rights from public funds, the said provisions can be understood in such a way that, in the event that parents do not have sufficient means to support themselves, they are not obliged to support a child who is in school, and even so that the child's duty to support his or her parents comes before their right to go to school. However, the above can be understood as an obstacle that puts children from socially weaker families in a significantly worse position than children from families with a better material situation in terms of access to education. Therefore, children from families with a worse material situation can only go to school on the condition that, in addition to the means for their own support and schooling, they are also able to provide the means for the support of their parents, or, according to the current regulation of the exercise of rights from public funds, also the means for the support of other family members (brothers, sisters, half-brothers or half-sisters), or even persons to whom they are not related (e.g. the child of one of the partner of one of their parents).

The MDDSZ accepted the views of the Ombudsman and explained that the DZ does not determine priority when deciding on maintenance for an adult child who meets the conditions of Article 183 of the DZ, in relation to parents who, according to Article 185 of the DZ, would also be entitled to support due to the lack of means of living which they cannot acquire. However, according to the MDDSZ, the relationship between the two provisions stems from the legal system of support for minors and further adult children.

The purpose of providing maintenance for minor children is to ensure the living conditions necessary for the child's development, which is derived from the constitutional regulation of Article 54 of the Constitution of the Republic of Slovenia and directly from Paragraph 1 of Article 183 of the DZ. According to the regulation of the conditions for maintenance of an adult child in Article 183 of the DZ, maintenance is limited until the first completion of education at a certain level (secondary education / post-secondary professional studies / university studies), from which it follows that the purpose of maintenance is, among other things, to provide the opportunity to finish schooling or education at a certain level. Also in accordance with judicial practice, the purpose of child support for an adult child who attends regular school is to enable them to attend school – so that they can devote themselves to school and successfully complete it. Therefore, it is not possible to ask them to continue to work while attending regular schooling and thus support themselves and consequently reduce the maintenance obligation of their parents (VSL, judgement IV Cp 1477/2014). Similarly also VSL, decision IV Cp 1906/2021.

In this regard, the MDDSZ adds that the statutory obligation to support parents, which is stipulated by Article 185 of the DZ, in itself stems from the fact that a child of full age is (already) capable of supporting a parent (that is, they can be recognised as an obligee), which, according to the MDDSZ, does not address a child of full age who, according to the provision of Article 183 of the DZ, may be entitled to child support. Otherwise, the education and entire livelihood of the adult child could be in jeopardy. In addition, the provision of Article 185 of the DZ derives from the fact that the parent's legal maintenance obligation towards the child has already been completed – namely, an adult child does not have to support a parent who, for unjustified reasons, did not fulfil the maintenance obligations towards the child.

The MDDSZ believes that, from this point of view, the systematic regulation of the obligation to support a child after reaching the age of majority adequately guarantees the right to education from Article 57 of the Constitution of the Republic of Slovenia.

In the process of determining entitlement to rights from public funds, children who are now of legal age, whose parents are still obliged to support them in accordance with the DZ, are considered as their related persons. In accordance with the Exercise of Rights from Public Funds Act (ZUPJS), this means that when determining the financial situation of a family, their income is also taken into account (with the exception of alimony and alimony compensation, which, in accordance with point 4 of Paragraph 1 of Article 12 of the ZUPJS, are taken into account up to the amount of the minimum income that they would be entitled to according to the law governing social welfare benefits, if they had no other income, or up to the amount determined by law limit for the child's survival, as well as staff scholarships for studying in Slovenia and the income of pupils and students for temporary and occasional work based on a referral, which are not taken into account when asserting the right to child allowance, state scholarships, and reductions in kindergarten fees and school meal subsidies minimum wages, determined in accordance with the law governing the minimum wage, and the staff scholarship for studying abroad up to the amount of the minimum wage determined in accordance with the law governing the minimum wage, increased by 60 per cent). If the parents do not have (enough) means of subsistence, but the children do, this may mean that the adult children support their parents, but also other family members (brothers, sisters, half-brothers or half-sisters) or persons with whom they are not related (e.g. the child of the partner of one of their parents).

The MDDSZ explains that they are aware of the above-mentioned issues and when preparing the amendment to the ZUPJS they are examining the possibility of taking into account all incomes of children or stepchildren when determining eligibility for rights from public funds only up to the level of the statutory limit for the child's survival (up to the amount for the child, which is determined by the Social Assistance Payments Act).

According to the Ombudsman, the MDDSZ responded appropriately to the warning about the inequality of the positions of persons of legal age who attend school regularly, depending on their parents' financial situation or earning capacity. The Ombudsman expects that the MDDSZ will fulfil the announcements about the necessary legal changes. 9.5-4/2023