Reclaiming Unlawfully Received Family Allowances

Facts

R. was registered with the Federal Compensation Office (EAK) through his employer to receive family allowances for his three children from his first marriage. After the divorce on 30 December 2003, the children were placed under the parental responsibility of their mother, U. On 19 October 2010, [U.] retroactively applied to the Family Compensation Office of the Canton of Bern for family allowances for the same children as of 1 January 2009. The EAK subsequently denied R.'s entitlement to family allowances as of 1 January 2009 and demanded the repayment of the allowances wrongfully received during that period, amounting to 13,700 Swiss francs.

Considerations

The Federal Supreme Court decided that the entitlement to family allowances under Art. 7(1) FAA does not only apply from the date of submission of the application by the second eligible person, but rather from the time the salary claim of the eligible person arises. Therefore, R.'s receipt of the benefits was unlawful as of 1 January 2009, since at that time his divorced spouse, [U.], was an employed person within the meaning of Art. 7(1)(a) FAA and thus entitled…