Social assistance to a father, recipient of supplementary benefits to the Old Age and Survivors' Insurance (AVS), who has voluntarily divested himself of a portion of his assets transferred to his children as an advance on their inheritance

Facts

[C.], born in 1923, widowed, is domiciled in the Municipality of X. Since May 2004, he has been placed in the nursing home [O.] in G. He is the holder of an old-age pension and a disability allowance from the AVS, in addition to receiving a supplementary benefit to the AVS pension. In 1997, [C.] transferred a portion of his assets to his two children, M. and A., as an advance on their inheritance. In 2005, [C.] submitted an application for public assistance to the Municipality of X. for the uncovered costs of his stay at the [O.] institution. The Municipality rejected the request, considering that the income of the children was sufficient to justify a duty of assistance based on family law. [C.] then appealed to the Federal Court.

Considerations

The Federal Court upheld the appeal. According to the case law, the constitutional right to assistance in situations of need (Art. 12 Cst.) cannot be reduced or refused to an indigent person, even if they are personally responsible for their state of need. The reasons that led to the indigence are indeed irrelevant for the purposes of the protection offered by Art. 12 Cst. Therefore, the Municipality could not refuse C.'s request by applying by analogy the principles valid in the context of the renunciation of income or assets elements in the framework of supplementary benefits. However, C.'s children may be subject to a duty of assistance towards him under Arts. 328 and 329 CC. In this case, the Municipality (or the competent cantonal authority) could bring an action based on these provisions. Furthermore, if the real estate transferred to the children cannot be reasonably realized, the…