Facts

A. and her husband were appointed by the competent child protection authority as provisional guardians of their three grandchildren B., C. and D.

By its objection decision of April 3, 2025, the Family Compensation Fund of the Canton of Ticino confirmed the denial of A.'s entitlement (holder of a B permit) to family allowances based on Art. 16 let. b FamZV, as her husband (a Swiss citizen) drew an ordinary AHV old-age pension (decision of January 23, 2025).

In its judgment of October 13, 2025, the Insurance Court upheld the appeal filed against this decision on the grounds that Art. 16 let. b FamZV was incompatible with the FamZG, and ordered a re-examination of the entitlement to family allowances pursuant to Art. 19 para. 1 FamZG as of January 1, 2025.

The Family Compensation Fund appealed to the Federal Supreme Court by way of an appeal in public law matters.

Considerations

3. Before the Federal Supreme Court, the question to be clarified is whether the judgment of the Insurance Court violates federal law insofar as it deemed Art. 16 let. b FamZV to be incompatible with the FamZG.

4.2. According to Art. 19 FamZG, persons who are compulsorily insured with the AHV and are deemed not to be gainfully employed are entitled to family allowances according to Art. 3 and Art. 5, whereby Art. 7 para. 2 does not apply. Employees or self-employed persons who are compulsorily insured with the AHV and do not reach the minimum income set out in Art. 13 para. 3 FamZG are also deemed not to be gainfully employed. Mothers who are entitled to a maternity allowance are also deemed not to be gainfully employed for the duration of this entitlement. The entitlement to family allowances requires that the taxable income does not exceed 150 percent of a full maximum AHV retirement pension and that no supplementary benefits to the AHV/IV are received.

4.3.2. Art. 16 FamZV contains a list of persons who are deemed not to be gainfully employed within the meaning of the FamZG.

5.2. In the present case, the objector worked irregularly as an employed temporary cleaning assistant. Her husband was not gainfully employed and drew an AHV old-age pension as well as supplementary benefits.

6.1. According to the appellant, the definition of non-gainfully employed persons was deliberately not based on the AHV contribution liability, so that all persons who cannot assert a claim to family allowances as employees or self-employed persons would be deemed not to be gainfully employed.

In its view, the strict application of the AHV criteria in connection with family allowances did not correspond to the intention of the legislature (Art. 19 para. 1 FamZG), as it would lead to significant unequal treatment and disadvantage those insured persons who cannot fall back on other sources of income in the form of benefits from other social insurances (retirement pension, supplementary benefits), which was precisely what the enactment of Art. 16 let. b FamZV was intended to avoid.

7.1. An implementing ordinance may only regulate intra legem and not praeter legem. Without express authorization, it may not establish new rules that restrict citizens' rights or impose obligations on them, even if these rules are still compatible with the statutory purpose (BGE 151 V 100 E. 8.4.2 with reference; 142 V 26 E. 5.1; 136 V 146 E. 3.2.1). 

7.2.  Art. 16 FamZV constitutes an implementing provision for Art. 19 para. 1 FamZG, to which express reference is made. An interpretation is required to determine the scope of application.

The wording of Art. 19 FamZG does not contain a delegation clause in favor of the Federal Council.

7.2.2. A reading of the three language versions of Art. 19 para. 1 FamZG makes it clear that reference is made to the AHV criteria for the classification of non-gainfully employed persons within the meaning of the entitlement to family allowances.

7.3. Thus, it can be confirmed that Art. 19 para. 1 FamZG defines the term "non-gainfully employed persons" with reference to the criteria of the AHV. Art. 16 let. b FamZV thereby restricts the circle of non-gainfully employed persons who are entitled to family allowances pursuant to Art. 19 para. 1 FamZG and excludes all non-separated persons whose spouses draw an AHV old-age pension, including those who are deemed not to be gainfully employed according to the criteria of the AHV. 

The appellant's conclusion is therefore based on an incomplete understanding of criteria that were already obsolete at the time the norm in question was adopted. 

As a result, the appeal must be dismissed and the cantonal referral judgment upheld.