Mag. Balazs Esztegar LL.M.
Attorney-at-law Vienna

Piaristengasse 41/10
1080 Vienna, Austria
Tel. +43 1 997 4102
Fax +43 1 997 4102-99

Child support payment to son can be covered by minimum care

On the basis of an appeal to the Administrative High Court brought by lawyer Balazs Esztegar, the Administrative High Court overturned a decision of the Administrative Court of Vienna in connection with the Vienna Minimum Care Act and declared that child support can also be granted from the funds of the minimum guarantee.

The appellant, represented by lawyer Balazs Esztegar is a Hungarian citizen and has suffered from a mental disability since birth, which prevents him from actively participating in working life. The appellant is under guardianship and unable to engage in gainful employment. He is maintained by his mother, who has to assist him even with the simplest tasks of daily life. As it is hardly reasonable for the mother to be in full employment due to the intensive care required for her adult but disabled son, she receives minimum care (Mindestsicherung) under the Vienna Minimum Care Act and maintains her two healthy children and her disabled son. 

After the latter had reached the age of 21, he was deprived of the minimum care that had been granted to him until then. The authorities took the view that the appellant formed a separate community of need and did not fulfil the requirements for equal status with Austrian citizens. The appellant's guardian filed an appeal against this with the Administrative Court of Vienna, which, however, was unsuccessful, as the Administrative Court ruled that the appellant was "essentially upheld from those funds that are paid out to the mother from the minimum care scheme". From this, the Administrative Court concluded that the appellant was not actually receiving child care from the mother - as required by the law for equality under Union law.

In the appeal proceedings, however, the Administrative High Court overturned this decision on the grounds that its content was unlawful and declared that 

due to his disability since birth, the appellant was in an economic and social situation that prevented him from meeting his basic needs and that he was therefore dependent on his mother, who indisputably provided for his otherwise unmet - financial and other - needs, in accordance with the case law of the European Court of Justice (C-423/12, Flora May Reyes).

The Administrative High Court clearly rejected the legal opinion still held by the Vienna Administrative Court, according to which child care could not be granted from the funds of the minimum care:

There are no indications that such a relationship of dependency, which according to Art 7 (1) (d) in conjunction with Art 2 (2) (c) of the Union Citizens Directive establishes a right of residence for a relative in the descending line over the age of 21, cannot exist if the means of subsistence required for the right of residence of the Union citizen and his family members are substituted by a minimum security benefit in a case under Art 7 (3) of the said Directive.

Therefore, the financial means to secure living can also be covered by means of the minimum care. The Administrative High Court thus followed the argumentation of lawyer Balazs Esztegar and annulled the decision due to the unlawfulness of its content.