Possibility of understanding included within the subjective scope of mobility for health reasons of officials to people who are subject to the legal guardianship of those.

Last update: September 2025

The issue raised concerns the issue of mobility for reasons of health or rehabilitation of dependent children.

Firstly, the legal framework for implementation needs to be analysed. With regard to the provision of posts, and in accordance with the fourth final provision of Royal Legislative Decree 5/2015, of 30 October, approving the consolidated text of the Law on the Basic Status of Public Employees (TREBEP), the relevant provisions contained in Law 30/1984, of 2 August, on Measures for the reform of the Public Service and Royal Decree 364/1995, of 10 March, approving the General Regulations on the Admission of Personnel to the Service of the General State Administration and the provision of civil and professional posts, are still in force.

In relation to mobility, Article 20.1.h) of Law 30/1984, of August 2, establishes:

“The General Administration of the State may assign civil servants to jobs in a different unit or locality, upon request based on the health or rehabilitation of the civil servant, his spouse or his dependent children, with prior report from the legally established official medical service and subject to the existence of vacant posts with budgetary allocation whose level of destination and specific complement is not higher than the post of origin, and the requirements for their performance are met. Such secondment shall be final when the official so occupies his place of origin.”

The question that arises is whether the concept of “dependent children” includes the persons over whom guardianship is exercised.

According to article 3 of the Civil Code, ‘The rules shall be interpreted in the proper sense of their words, in relation to the context, the historical and legislative background, and the social reality of the time in which they are to be applied, paying particular attention to the spirit and purpose of the rules.’

It is common in scientific doctrine to accept that, together with the literal or strict interpretation of the norms, the norms must also be interpreted according to their spirit and purpose, as well as the social reality of the time in which they are to be applied. That is, together with the strict interpretation, there is the “corrective” interpretation, which allows to introduce and assess, when applying the law, the aspects indicated.

In particular, this interpretation may have two possibilities: a restrictive interpretation, when the content of the norm is restricted through it; or an extensive interpretation, which allows the literal meaning of the norm to be extended, many times to comply with the purpose pursued by the norm and whose literality, unalterable by the passage of time in favor of legal certainty, is surpassed by the social reality of the moment in which it is to be applied.

Through an extensive interpretation, it is possible to update the material content of a norm, managing to maintain the validity of the binomial norm-designated reality, necessary for the correct application of the ordination at all times.

Applying these rules to the present case, the legal and factual similarity between parental authority and guardianship must first be taken into account, especially in cases where the guardian lives with the guardian and is in charge of the guardian.

Thus, with regard to parental authority, article 154 of the Civil Code provides that:

“This function includes the following duties and powers:

1. Look after them, have them in their company, feed them, educate them and provide them with a comprehensive training.

2. Represent them and manage their assets. (…)»

For its part, article 228 of the Civil Code, in relation to guardianship, establishes the following:

« The guardian is obliged to look after the guardian and, in particular:

1. To provide him with food.

2. To educate the child and provide him with a comprehensive education.

3. To administer the minor’s estate with due diligence.

4. To report annually to the judicial authority on the situation of the child and to give an annual account of its administration.

5. To hear the child before making decisions that affect him or her.

On the other hand, the system of administration and management of the assets of minor children or guardians - with reference to curatela -, regulated respectively in articles 166 et seq., and articles 287 and concordant articles, is practically similar in both, also establishing the obligation to render accounts once the exercise of their function has ended (article 232 of the Civil Code).

Article 231 of the Constitution also confirms the close link between parental authority and the institution of guardianship and parental authority. Article 231 provides that one of the causes of termination of guardianship is: ‘When it has originated from deprivation or suspension of parental authority, the holder of parental authority recovers it’.

In short, the obligations of parental authority and guardianship are the same: to look after them, to provide them with food, to represent them and to administer their property, etc.

The obligation to look after the child or guardian is, in turn, closely linked to the obligation to provide food, the latter obligation which can be met, either by paying the fixed pension, or by receiving and keeping in his own house the one who is entitled to it.

In addition, as already indicated, the Act imposes an obligation on the guardian to look after the incapacitated person. «to promote the acquisition or recovery of the capacity of the mentee and his better insertion in society», which in many cases has been developed through the coexistence, in the same house, of the tutor and the guardian.

In these cases, in which in addition to the guardian looking after the guardian and providing him with food, there is an effective coexistence, it is understood that the same characteristic notes would be given as in the parent-child relationship.

Secondly, it must be considered that the regulation that, both in the field of the Public Service and in the workplace, has been carried out in recent decades with regard to permits, licenses and surpluses, through the extension of the original scope of the aforementioned permits to the elderly, is a clear sign that the legislator is aware of the social situation we live in, in which the increase in the number of elderly people who, find themselves, either in a state of incapacity, or in a situation of need of attention and care by a third party, is growing and involves the need to carry out legislative reforms inspired by the same principle that inspires the protection of minors.

In light of these arguments, it seems reasonable to understand that what the legislator pursues when it regulates mobility for reasons of health or rehabilitation of the official, his spouse or “the children under his or her care” is to allow both the official and the people who live with him or her and in respect of whom he or she legally has the obligation to look after him or her and to provide them with food – in the terms contained in the Civil Code – to be protected through the mobility of the official when the other circumstances required by the precept for this occur.

Among these persons the article cites only the spouse and dependent children, but an extensive interpretation based on the arguments presented, legal and factual similarity between parental authority and guardianship as well as a view of the norm in the light of the social reality of the moment in which it is to be applied, allows to affirm that the cases in which the guardian lives with and in charge of the guardian, would be assimilable to “the dependent children” to which the precept refers.

This interpretation is reinforced by an obligatory equitable application of the rule, as required by Article 3 of the Civil Code itself, since, otherwise, there would be an unfair and contrary result to the spirit of the rule, which would consist in that the legal guardian of a person who lives with him or her and in respect of which the guardian is obliged to look after him or her, to provide him or her with food in his or her own home to educate him or her and to provide him or her with training – which in the case of the guardian crystallizes, in many cases, in promoting the acquisition or recovery of the capacity of the guardian and his or her better insertion into society – that is to say, in spite of the fact, there are obligations identical with regard to the health.

All of the above is indicated without prejudice to the fact that, in addition, the other requirements required by the standard had to be met in order for a mobility procedure to be processed for health reasons.

All of the foregoing is without prejudice to recalling that, according to the regime of competences of this management center, the answers to queries issued by this general directorate are merely informative and, consequently, are not of a binding criterion, nor do they give rise to rights or expectations of law, nor imply any link with the type of procedures to which they refer. Furthermore, in the absence of a mandatory or binding nature, the bodies receiving such replies may, where appropriate, finally take a decision that does not correspond to the opinion contained therein.

The responses to queries contained in this bulletin address the issues raised in the light of the regulations in force at the time of their issuance, so that such responses may be affected by subsequent legislative changes or judicial decisions.