The question raised concerns the figure 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 revised text of the Law on the Basic Status of Public Employees (TREBEP), the provisions in the matter contained in Law 30/1984, of 2 August, on Measures for the reform of the Civil Service and Royal Decree 364/1995, of 10 March, approving the General Regulations for the Admission of Personnel to the Service of the General State Administration and for the Provision of Civil Posts and Promotion of the Professional State

With regard to mobility, article 20.1.h) of Act 30/1984 of 2 August states:

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

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 those rules’.

It is common in scientific doctrine to accept that, along with literal or strict interpretation of rules, rules 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 to say, 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 rule is reduced through it; or an extensive interpretation, which allows the literal meaning of the rule to be extended, often in order to fulfil the purpose pursued by the rule and whose literality, unaltered by the passage of time in favour of legal certainty, is overwhelmed 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 standard, managing to maintain the validity of the binomial standard-designated reality, necessary for the correct application of the order at all times.

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

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

‘This function includes the following duties and powers:

1. To look after them, to have them in their company, to feed them, to educate them and to provide them with comprehensive training.

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

Article 228 of the Civil Code, in relation to guardianship, states the following:

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

1. To provide him with food.

2. To educate the minor and to provide him with comprehensive training.

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

4. To report annually to the judicial authority on the situation of the minor and to give him an annual account of his administration.

5. To listen to the child before making decisions that affect him.

On the other hand, the system of administration and management of the property of minors or guardians - with reference to curatorship -, regulated respectively in articles 166 et seq. and articles 287 et seq., is practically similar in both cases, and also establishes the obligation to be held accountable once the exercise of their function has ended (art. 232 of the Civil Code).

It also confirms the closest link between parental authority and the institution of guardianship and parental authority in Article 231, which provides that one of the reasons for the termination of guardianship is that: ‘When it has been caused by 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 maintaining in his own house the one who is entitled to them.

In addition, as already indicated, the Act imposes on the guardian, in order to look after the disabled person, the obligation to «to promote the acquisition or recovery of the capacity of the tutelary and its 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 addition to the guardian watching over 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 the last decades with regard to permits, licences and surpluses, through the extension of the original scope of the mentioned permits towards 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 are, either in a state of incapacity, or in a situation of need of care and care by a third party, is a growing need for legislative reforms inspired by the same principle that inspires the protection of minors.

In the 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 “his dependent children” is to allow both the official and the people who live with him and for whom he legally has the obligation to look after his care 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 the guardian and in charge of the latter, 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 unjust and contrary result to the spirit of the rule, which would consist in the legal guardian of a person living 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 house to educate him or her and to provide him or her with training – which in the case of the guardian is crystallized, 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, despite the fact, the fact, the fact, that there are obligations to be no

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 above is without prejudice to remember 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, do not have the character of a binding criterion, nor do they give rise to rights or expectations of law, nor do they imply any link with the type of procedures to which they refer. In addition, since they are not mandatory or binding, the bodies to which such replies are addressed may, where appropriate, finally take a decision that does not correspond to the opinion contained therein.

The answers to queries contained in this bulletin deal with the issues raised in the light of the regulations in force at the time of their issuance, so that these answers may be affected by subsequent legislative changes or judicial resolutions.