DECISION
In the administrative law case
of xxx,
plaintiff,
represented by: Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen,
against
the xxx,
defendant,
Subject of dispute: Granting of housing benefit
The Göttingen Administrative Court – 2nd Chamber – decided on December 3, 2012:
The plaintiff is granted legal aid from the date of application and is appointed as his lawyer, Sven Adam from Göttingen.
REASONS
The economically needy plaintiff is to be granted legal aid because his legal action is not frivolous and offers sufficient prospects of success (§ 166 VwGO in conjunction with § 114 sentence 1 ZPO).
The defendant likely erred in only considering the exemption amount of €300 once during the months of double parental allowance receipt when calculating the plaintiff's income for housing benefit purposes. This conclusion is based on the following considerations.
According to Section 14 of the Housing Benefit Act (WoGG), annual income includes, pursuant to paragraph 2 no. 6 of the provision, wage and income replacement benefits pursuant to Section 32b paragraph 1 no. 1 of the Income Tax Act; this includes, pursuant to Section 32b paragraph 1 no. 1 j), among other things, parental allowance under the Federal Parental Allowance and Parental Leave Act (BEEG). According to Section 14 paragraph 2 no. 6 second sentence, Section 10 BEEG remains unaffected. Pursuant to Section 10 BEEG, parental allowance and comparable benefits from the federal states, as well as income from social benefits whose payment is dependent on other income, which are credited against the parental allowance pursuant to Section 3, are disregarded as income up to a total of €300 per month.
The wording does not provide a clear indication as to whether, in the case of double receipt of parental allowance by both parents, the tax-free allowance should only be granted once in total – according to the defendant's legal opinion – or per parent.
The explanatory memorandum to Section 10 Paragraph 1 of the Federal Parental Allowance and Parental Leave Act (BEEG) (Bundestag printed matter 16/1889, p. 26) also does not clearly indicate how the legislator intended to regulate the case of both parents receiving parental allowance simultaneously.
It states that, according to Paragraph 1, parental allowance and comparable state benefits up to a maximum of €300 per month are disregarded when calculating other income-related benefits. The parental allowance of at least €300, paid as compensation for financial constraints during the child's first twelve or fourteen months and as recognition for childcare, is intended to remain with the recipients even if they receive other income-related social benefits. However, the word "total" is not used in the explanatory memorandum, leaving it unclear whether the legislator attributed any specific regulatory significance to this phrase and, if so, what that significance might be.
However, the purpose and intent of Section 10 of the Federal Parental Allowance and Parental Leave Act (BEEG) require that the tax-free allowance of 300 euros be granted to each parent.
Parental allowance is intended to support parents in the early stages of parenthood and enable them to care for their child themselves during this period. It aims to provide a safe haven so that families can settle into family life without financial hardship and focus primarily on caring for their children. To ensure that the parental allowance actually increases the available net household income for all families, the first €300 is not counted as income for other social benefits. Overlap between different social benefits is to be avoided as much as possible. This allowance is intended both to offset the additional expenses incurred due to childcare and to serve as recognition for the caregiving effort (see Bundestag printed matter 16/1889, pp. 2, 15-17). In this respect, the first 300 euros of parental allowance is a purely supportive benefit, while the remainder is designed as a wage replacement benefit (see Buchner/Becker, Mutterschutzgesetz und Bundeselterngeld- und Elternzeitgesetz, § 10 BEEG, Rn. 5).
Section 10 Paragraph 1 of the Federal Parental Allowance and Parental Leave Act (BEEG) is intended to allow for a tax exemption of €300 over the full entitlement period of 12 or 14 months. Simultaneous receipt of parental allowance by both parents according to Section 4 Paragraph 2 Sentence 3 of the BEEG results in double the use of the entitlement months (see Bundestag Printed Matter 16/1889, p. 23). If, in the case of simultaneous receipt by both parents, the tax exemption were granted for only one recipient, the two additional months would essentially be lost without compensation. This is because if one parent were to receive parental allowance for 12 months and then the other for 2 months, the tax exemption would have to be granted for a total of 14 months. Considering the purpose of the Parental Allowance Act, it is incomprehensible why this should be different when parents receive benefits simultaneously. Section 4 Paragraph 2 Sentence 3 of the BEEG specifically provides for this possibility. Furthermore, the Federal Parental Allowance and Parental Leave Act (BEEG) is specifically intended to offer parents flexibility in family planning without the risk of losing benefits. The two additional months were, after all, designed to incentivize fathers to take a more active role in family planning (see Bundestag printed matter 16/1889, pp. 15-17). All these considerations would be undermined if the tax-free allowance, when both parents take parental leave simultaneously, did not also apply to these two additional months. Parents could only exercise their option under Section 4 Paragraph 2 Sentence 3 of the BEEG to receive parental allowance simultaneously by forfeiting two monthly tax-free allowances of €300 each. This is not in accordance with the intent of the legal provision (see also the decision of the Lower Saxony-Bremen State Social Court – L 13 AS 90/09 –, citing Lenz in: Rancke (ed.), Maternity Protection/Parental Allowance/Parental Leave, Commentary, Section 10 BEEG, marginal note 2).
This decision is final and unappealable for the parties to the proceedings (§ 166 VwGO, § 127 para. 2 ZPO).
