Facts
The case concerns a child, Luca Sch., born on 2 August 1979 in Basel, Switzerland, to parents residing in Switzerland. After the death of his mother on 17 September 1979, the child was entrusted to a maternal aunt in Italy. The father, Paul Sch., applied for and obtained an extraordinary pension for his son under Article 42 para. 1 OASIA. However, the Ausgleichskasse subsequently replaced this pension with an ordinary pension, considering that the child no longer resided in Switzerland.
The father contested this decision before the Cantonal Commission of Appeal for Compensation Funds, which annulled the decision of the Ausgleichskasse and ordered the payment of an extraordinary pension. The Federal Office for Social Insurance filed an appeal against this decision, arguing that the child did not meet the conditions to benefit from an extraordinary pension due to his absence from Switzerland.
Considerations
The Federal Court examined the conditions for benefiting from an extraordinary pension under Article 42 para. 1 OASIA. It considered that, in addition to civil domicile in Switzerland, the beneficiary must also effectively reside in Switzerland and intend to maintain this stay. The Court also recalled that the principle of residence allows two exceptions: short-term stay abroad and long-term stay abroad.
The Court considered that, in the present case, the child had been entrusted to an aunt in Italy for childcare reasons, which constituted a valid reason for a short-term stay abroad. However, the Court estimated that the father had…