The NTA, following a complaint, issued an audit order to the e-National Social Security Fund (Local Insurance Directorate of the Fifth Central Sector of Athens), regarding the correctness or not of the insurance provider change of a minor child, whose custody is shared by both parents, without the consent of one of them.
The change in the insurance capacity of the minor child of the complainant parent was carried out by the audited department following a formal audit of the insurance capacity of its two divorced parents, taking into account the relevant court order, by which: a) the custody of the minor child’s person had been jointly entrusted to both parents, b) the minor’s place of residence was the residence of one of the parents to whom were entrusted exclusively the ordinary acts of custody of the child's person, as well as acts of an urgent nature, of which he or she would subsequently inform the other parent when the nature of those acts required it.
The minor child was insured as an indirectly dependent member of one parent in the former Engineering Fund for Public Works Contractors (TSMEDE) of the e-National Social Security Fund (e-EFKA) and this insurance could continue as the complainant parent had joint custody of the minor with the other parent and was insurable. No reason was advanced by the complainant parent to qualify the change in the insurance capacity of the minor as an act of urgency.
Moreover, this change was made incorrectly by the National Social Security Fund (EFKA) and without considering whether it was actually beneficial for the minor, i.e. whether the general benefits of the former Engineering Fund for Public Works Contractors (the insurance institution of the complaining parent).
Given the recent change in family law (Law 4800/2021), where the joint and equal exercise of parental care/custody of the person of minor children is the rule and its different regulation is a deviation from its joint exercise, the applicable provisions for the change of insurance capacity of a minor child, in which joint custody is exercised should be interpreted either by ad hoc decisions in the event of disagreement between the parents of the minors exercising joint custody or by relevant opinions of the Legal Council of the State.
Following the above, the following was proposed to the auditee:
- Reconsider the correctness of the change in the insurance capacity of the complainant's minor child, taking into account both the facts of the case at hand and the applicable legal framework.
- Ensure immediately - following the legal procedure - that the case in question is brought before the Legal Council of the State for an opinion, setting out in full the real facts of the case and its concerns regarding the meaning, content and combined interpretation of the applicable provisions of the legislation in force.
- Until the issuance of the above opinion, in order to avoid disputes regarding the change in the insurability of minor children, over whom both parents will have joint custody, the audited service should request the parents’ written consent from whose share the minor child is removed as an indirectly dependent member.
Following the issuance of the above opinion, the competent bodies of the institution should issue a circular setting out the documents required by law in order for the local services of the institution to change the insurance capacity of minor children who are subject to joint custody by court order, lawfully and in a manner that serves their in