Últimas interpretaciones en torno a la prestación económica por cuidado de menores afectados por cáncer u otra enfermedad grave

Abstract

In this work it is studied, from a judicial and scientific doctrine point of view, the economic benefit for the care of children affected by cancer or other serious illness, a provision of relative scarcity and which is beginning to be discussed and made more flexible by the judicial doctrine and jurisprudence. So, it is analyzed its critical points and its judicial interpretation, as much in the regulation contained in the ET as right to the reduction of working day with proportional reduction of the salary, as well as its regulation in the LGSS as right to an economic subsidy to compensate this reduction of working hours and salary. In order to carry out this study, it has been taken into account the existing legislation, but especially the scientific and judicial doctrine falled on this issue, which has been clearing legal gaps and interpreting the indeterminate legal concepts raised in the normative regulation. In fact, the unresolved issues and the interpretative doubts exist, but the judicial authorities are giving solutions to them. Thus, in relation to the protected situation, it refers to biological filiation, to adoption, or fostering if it is permanent, custody for adoption or guardianship. On the contrary, temporary foster care and curatorship are not protected. A requirement that configures it is the reduction of the day and salary that must exist to be entitled to the corresponding benefit, as it is required that at least the worker requests a reduction of working hours and salary of a minimum of 50% and as maximum of 99.9%, and it is not possible to accumulate this reduction with others for similar rights, since these permits and licenses are totally independent. It is also basic the disease that suffers the minor, either cancer or other serious, because despite the establishment of a list, it should not be understood as absolutely closed, since it can be understood as including others in many of its generic meanings. One of the doubts is in relation to the term «serious», which many times it must be valued in each specific case according to the concurrent circumstances. Likewise, with regard to the requirement of hospital admission, judicial doctrine understands that it can be interpreted in a broad and flexible sense, and it states that it is not a sine qua non requirement as an inpatient can return to the family home and has a «normal life», as well as the requirement of direct care, since it is not essential that the parent, adopter, foster or caregiver has to have the care for the child during the twentyfour hours of the day, being allowed to share this care with another person. There are many assumptions raised as to whether this benefit is compatible with the schooling of the child. Judicial doctrine, following its flexible and broad interpretative line, points out that in order to deny this benefit, normal schooling must exist, which does not happen when the minor receives support or goes to a special center. In short, these latter are the central issues in the debate on this provision, for which the judicial doctrine considers that the care that the minor needs has to be direct, continuous and permanent, but it does not require it to be in a hospital, since the minor can stay at home and it is not necessary the beneficiary being responsible at all times. Thus, it is possible that the beneficiary shares the care of the child with other individuals, such as teachers or caregivers. Another relevant fact is that it has to be the public medical service who has to complete the declaration and inform, as they have the competence, even in the case that the care and diagnosis has been carried out by private medical services. On the other hand, the lack of coordination of the ET and the LGSS has also generated interpretative doubts. On the one hand, art. 190 LGSS, unlike the statutory one, demands that «both work». This raises the question of what happens in the case of single-parent families, because when referring to «both» it seems that only families formed by two parents are protected. In principle, from a simplistic point of view of the literal nature of the law, it could be understood that these families would not be entitled, but this would be a serious prejudice to the parent. However, from a logical point of view, and according to INSS internal instructions, it is understood that these families are protected by this subsidy. Likewise, in relation to the requirements that the LGSS demands, it is possible to refer to what is expected for the maternity benefit, considering the doubt regarding the situations assimilated to discharge, in respect of which silence is kept. According to scientific doctrine, this should be interpreted as not forgetting the legislator, but rather reflecting the clear requirement that caregivers are providing work services and have to leave them to care for the child, which generates the economic damage that is attempted to compensate. As regards the economic benefit, the judicial doctrine understands that it should be qualified as a subsidy because of its temporary character, that is, public welfare assistance of an economic nature and fixed duration. Lastly, it is striking that, despite equating the contribution to maternity, and in the case of a situation arising from a common and non-professional risk, the legislature has provided that the amount of the benefit is based on the professional contingency regulatory base, when this is more typical of, for example, risk benefit during pregnancy or breastfeeding, and not maternity. © 2017 Ministerio de Empleo y Seguridad Social. All rights reserved.