Origin of paying an official, included in the Regime of Administrative Mutualism, the compensation for residence in certain areas of the national territory when the situation of Temporary Incapacity exceeds three months.

The question raised concerns the appropriateness of paying an official, included in the Regime of Administrative Mutualism, the compensation for residence in certain areas of the national territory when the situation of Temporary Incapacity exceeds three months.

To this end, it is necessary to analyze the provisions of the Consolidated Text of the Law on Social Security of Civil Servants of the State, approved by Royal Legislative Decree 4/2000, of January 23 (LSFCE).

The economic benefit in the situation of temporary incapacity for the Administrative Mutualism Regime from the fourth month is regulated in article 21 LSFCE. As stated in art.21.1.b), it is composed of the basic remuneration and a subsidy, in the following terms:

“(b) From the fourth month he shall receive the basic remuneration, the dependent child allowance, if any, and a temporary incapacity allowance from the General Mutuality of Civil Servants of the State, the amount of which, fixed and unchanged for the duration of the incapacity, shall be the greater of the following two amounts:

1.a 80 per cent of the basic salaries (salary, trienniums and grade, if any), increased by one-sixth of an extraordinary salary, corresponding to the third month of leave.

2.Seventy-five per cent of the additional remuneration earned in the third month of leave.”

However, compensation for residence in certain areas of the national territory cannot be included within the concept of “remuneration” but in that of “compensation”. In other words, it does not have a retributive nature, but a compensatory nature.

Illustrative of this statement is the explanatory part of Royal Decree-Law 11/2006, of 29 December, authorizing the updating of the amounts of residency compensation for active personnel in the State public sector, which reads as follows:

“Residency compensation is a supplementary remuneration of a compensatory and non-remunerative nature, with a long tradition in the public service regulations of our country and which finds its historical origin in the special characteristics, fundamentally geographical, of some of our territories.

This historical supplement received by staff assigned to certain territories and which consolidated its compensatory nature, is intended to compensate public officials for the expenses they are required to incur, due to their service or residence, in those places of the national territory established by the Government (…)”.

Therefore, the compensation for residence in the national territory, in a broad sense, is a remuneration, understood as any amount of money that is paid to an official; but, strictly speaking, which is the right to apply in this case, the compensation for residence in certain areas of the national territory is not a remuneration but an amount that has the character of compensation or compensation that is received, not for the provision of effective services, but for the fact that the official is forced to fix his residence in certain places of the national territory, which entails expenses that are considered necessary to compensate.

Therefore, it is concluded that the compensation for residence in the national territory is not a basic or complementary remuneration, but is an amount of a compensatory nature that seeks to compensate the expenses that it entails for the official to reside in a certain area of the national territory and, therefore, in cases in which the official is in a situation of temporary incapacity, this compensation will not be modified or interrupted, provided that his place of residence is not altered.

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.