Refusal of exceptional social assistance to a self-employed person maintained as self-employed with the AVS

Facts

Parties and cantonal proceedings: The appellant, [A.] , born in 1963, is a self-employed person. The respondent is the Hospice général de la République et canton de Genève (hereinafter: the hospice). The Administrative Chamber of the Court of Justice of the Republic and Canton of Geneva dismissed the appellant's appeal against the hospice's decision on objection by judgment of 8 October 2019.

Initial grant of exceptional assistance: By letter of 5 December 2018, the hospice confirmed to the appellant that, because of her self-employed status, she would receive exceptional financial assistance for a maximum period of three months from 1 November 2018. At the end of that period, she had to choose between maintaining her self-employed status, which would deprive her of the assistance, and giving up that status. The assistance was subsequently extended to six months because of a work incapacity for health reasons.

End of assistance: On 1 April 2019, the hospice reminded her that the assistance would end on 30 April 2019. The appellant was required to produce a sworn statement that she had ceased all self-employed activity and a certificate of affiliation with the AVS as a person without gainful employment. On 10 April 2019, the appellant contested the obligation to choose between her self-employed status and the assistance, noting that the law did not provide for it. By decision of 23 April 2019, the hospice confirmed the termination of benefits, on the ground that the appellant intended to maintain her self-employed status. On 30 April 2019, the appellant submitted a sworn statement indicating that she had 'suspended' her status with the cantonal office of social insurance (OCAS). On 3 May 2019, the hospice found, on the basis of an invoice from the self-employed persons service of the OCAS, that the appellant remained affiliated as self-employed. She filed an objection the same day; the hospice rejected it on 29 May 2019.

Subject of the federal appeal: The appellant seeks reform of the cantonal judgment, requesting that the hospice be ordered to grant her ordinary assistance and to pay her the amount she would have received without the refusal. She requests legal aid. No exchange of written submissions was ordered.

Main question: The question was whether the refusal to extend the financial assistance beyond six months, based on the appellant's maintained affiliation as self-employed, violated the right to emergency aid (art. 12 Cst.) or economic freedom (art. 27 Cst.).

Considerations

Admissibility: The cantonal judgment is a final decision rendered in last cantonal instance by a superior court (art. 90, 86 para. 1 let. d and para. 2 FSCA). It concerns social assistance, falls within public law (art. 82 let. a FSCA), and does not fall within any exception under art. 83 FSCA. The appeal in public law matters is therefore admissible, the appeal having been filed in due time and in the required form (art. 100 para. 1 and 42 FSCA).

Establishment of the facts: The Federal Supreme Court rules on the basis of the facts established by the cantonal court (art. 105 para. 1 FSCA). The appellant does not demonstrate, in accordance with art. 106 para. 2 FSCA, an arbitrary establishment of the facts (art. 9 Cst.) on the three contested points, nor their relevance to the outcome of the dispute. Her factual complaints are therefore dismissed. The Federal Supreme Court examines freely the violation of federal law, including constitutional rights, subject to the requirement of reasoning under art. 106 para. 2 FSCA.

Legal framework of Geneva social assistance: Art. 12 Cst. guarantees only minimum emergency aid, a temporary safety net, which is more limited than cantonal social assistance (ATF 146 I 1 consid. 5.1). In Geneva, social assistance is governed by the LIASI and the RIASI. Financial benefits are subsidiary to any other source of income (art. 9 para. 1 LIASI) and presuppose insufficient income and limited assets (art. 21 para. 1 LIASI). Art. 11 para. 4 LIASI allows the Council of State to provide for exceptional, time-limited assistance for persons engaged in self-employed activity. According to art. 16 RIASI, this assistance is granted for three months, and up to six months in case of work incapacity. Cantonal case law justifies these rules by the preservation of public funds and the…