— The judgment is not yet legally binding. An appeal has been filed
VERDICT
In the legal dispute
1. xxx
2. xxx
– Plaintiff –
Legal representative:
for 1-2: Attorney Sven Adam, Lange Geismarstraße 55, 37073 Göttingen
against
County xxx
– Defendant –
The 33rd Chamber of the Social Court of Hildesheim, in the oral proceedings of September 30, 2013, with Judge xxx and Lay Judges xxx and xxx presiding, has ruled as follows:
1. The defendant is ordered, by amending the decision of 21 October 2009 as amended by the decision of 18 November 2009 as amended by the appeal decision of 12 January 2010 as amended by the decision of 20 January 2010 as amended by the appeal decision of 18 February 2010, to grant the plaintiff further benefits in the amount of 879.46 euros as a supplement for single parents for the period from 7 October 2009 to 30 April 2010.
2. In all other respects, the action is dismissed.
3. The defendant shall reimburse the plaintiffs for 81% of the necessary extrajudicial costs.
FACTS OF THE CASE
The parties are in dispute over the granting of higher benefits to secure subsistence under the Second Book of the Social Code (SGB II), taking into account a supplement for single parents for the plaintiff no. 1, as well as taking into account the deduction of a so-called insurance allowance from the income of the plaintiff no. 2.
The plaintiffs are currently receiving benefits under the German Social Code, Book II (SGB II).
Following the separation of the first plaintiff from her then-partner, the defendant granted the plaintiffs benefits under the German Social Code, Book II (SGB II), for the period from October 7, 2009, to April 30, 2010, in the amount of €410.00 per month, by decision dated October 21, 2009. For the first plaintiff, he took into account a standard allowance of €359.00, and for the second plaintiff, social assistance in the amount of €215.00. From this, he deducted child benefit in the amount of €164.00.
The plaintiffs objected to this decision by letter dated October 27, 2009, arguing that plaintiff no. 1 should be granted a supplement for single parents.
The plaintiffs moved in with the parents of plaintiff no. 1 and submitted the lease agreement dated October 7, 2009. This agreement stipulated a rent of €285.00, an advance payment for utilities of €56.86, and an advance payment for heating costs of €51.26.
By further decision dated November 18, 2009, the defendant amended the benefit award for the second plaintiff for the period from December 2009 to April 2010 due to the receipt of benefits under the Child Support Enforcement Act (UVG). The amendment deducted child benefit of €164.00 and UVG benefits of €117.00 from the second plaintiff's social assistance as income. The remaining child benefit of €66.00, after covering the second plaintiff's needs, was credited by the defendant against the first plaintiff's needs, and she was granted €293.00 per month.
By further decision dated December 10, 2009, the defendant amended the plaintiffs' benefit award such that, for the period from October 7, 2009, to April 2010, in addition to the standard benefit of plaintiff 1 and the social assistance of plaintiff 2, the costs of accommodation were fully taken into account. For the period up to November 30, 2009, the defendant deducted child benefit in the amount of €164.00 from plaintiff 2's benefits. From December 1, 2009, the defendant deducted income in the amount of €281.00 (€164.00 child benefit and €117.00 child support advance payments) from plaintiff 2's benefits.
By decision dated January 12, 2010, the defendant rejected the plaintiffs' objection to the decision of October 21, 2009, on the grounds that the plaintiffs lived in the house of the parents of plaintiff 1) and that these parents therefore participated in the care and upbringing of plaintiff 2). A supplement for single parents was therefore not payable.
By further decision dated 20 January 2010, the defendant amended the benefit award for the period from February to April 2010 by deducting an additional amount of 16.00 euros per month (back payment of UVG) as income from the benefits of the plaintiff no. 2).
The defendant rejected an objection filed against the decision of January 20, 2010, on the grounds that the so-called insurance allowance of 30.00 euros should be deducted from the income of the plaintiff no. 2, by means of a decision on the objection dated February 18, 2010, stating as grounds that the plaintiff no. 2 had not taken out any insurance.
By letter dated February 5, 2010, the plaintiffs filed a lawsuit with the Hildesheim Social Court against the decision of October 21, 2009, as amended by the appeal decision of January 12, 2010, concerning the benefit period from October 7, 2009, to April 30, 2010. By letter dated February 25, 2010, the plaintiffs' representative amended the lawsuit to request that the appeal decision of February 18, 2010, be overturned insofar as it concerned a decision regarding the granting of benefits under Book II of the German Social Code (SGB II) for the aforementioned period.
The decision of January 20, 2010, became the subject of the present proceedings pursuant to Section 96 of the Social Court Act (SGG), meaning that the appeal decision of February 18, 2010, should not have been issued. The appeal was filed solely to avoid a loss of rights, based on the instructions on legal remedies against the decision of January 20, 2010.
Plaintiff 1 is entitled to the so-called single parent supplement pursuant to Section 21 Paragraph 3 of the German Social Code, Book II (SGB II), because she lives with Plaintiff 2, a minor child, and is solely or primarily responsible for his care and upbringing. Although Plaintiff 1 is temporarily staying with her parents after separating from her partner, they provide neither financial support nor any contribution towards the care and upbringing of Plaintiff 2, meaning that Plaintiff 1's comprehensive responsibility for Plaintiff 2 can no longer be assumed. This was already impossible for Plaintiff 1's parents due to their age (71 and 74 years).
Furthermore, the so-called insurance allowance should be deducted from the income of the second plaintiff, as the plaintiff's parents have taken out accident insurance for him. Such accident insurance is common practice. Moreover, it is also appropriate in both scope and amount, since the second plaintiff is a child who frequently injures himself because he is very boisterous and fearless. He has already narrowly escaped several injuries and has suffered several serious injuries, so that a clear risk situation exists. Due to an injury resulting from a fall against a table, the plaintiff was hospitalized. The accident insurance paid hospital daily allowance of €120.00, convalescence allowance of €120.00, and room-in allowance of €160.00. For the exact scope of the accident insurance, reference is made to the insurance policy (pp. 81 ff. of the court file).
The plaintiffs request
that the defendant, by amending the decision of October 21, 2009, as amended by the amending decision of November 18, 2009, as amended by the appeal decision of January 12, 2010, as amended by the amending decision of January 20, 2010, and as amended by the appeal decision of February 18, 2010, be ordered to grant the requested benefits under the German Social Code, Book II (SGB II), in particular the single parent supplement for plaintiff no. 1, and to take into account the deduction of the insurance allowance in the amount of €30.00 from the income of plaintiff no. 2 (in the period from October 7, 2009 to April 30, 2010).
The defendant requests
that the action be dismissed.
The second plaintiff had not taken out any insurance, which, according to the wording of Section 6 Paragraph 1 No. 2 of the German Social Code, Book II (SGB II), is a prerequisite for deducting the insurance allowance. Furthermore, the accident insurance taken out by the parents for the second plaintiff is not appropriate according to the case law of the Federal Social Court (BSG). Accident insurance is not common among the general population, especially not for individuals whose income is just above the poverty line. Moreover, the scope of the insurance is also not justified. This applies both to the amount of coverage and to the specific details of the agreed-upon insurance protection. The fact that it is not a basic policy is evident from the designation "Comfort Plus Protection." Furthermore, the second plaintiff is not in any particular situation of risk. He is a healthy child with age-appropriate development. A not fully developed understanding of risk is typical for children of this age. Therefore, it is a general and typical life risk for children of this age. The plaintiff does not face a life situation comparable to an illness or even a disability that would create a particular risk. Finally, the benefits covered by the accident insurance are unnecessary, as they are already covered by health insurance.
Furthermore, the plaintiff in case 1) is not a sole parent, as the parents support her in the care and upbringing of the plaintiff in case 2).
The court heard evidence by examining witness xxx (the mother of plaintiff no. 1) regarding the extent of her contribution to the care and upbringing of plaintiff no. 2). For the results of the witness examination, reference is made to the minutes of the oral hearing of September 30, 2013.
For further details of the facts and the legal arguments, reference is made to the court file and the defendant's administrative file. These documents were available and formed the basis of the decision.
REASONS FOR THE DECISION
The admissible claim is well-founded to the extent indicated in the operative part of the judgment. Otherwise, however, it is unfounded.
The decision of January 20, 2010, which is also being challenged here, as amended by the decision on the objection of February 18, 2010, has become the subject of the present proceedings pursuant to Section 96 of the Social Court Act (SGG). This was not in dispute between the parties.
1.
Insofar as the defendant has not granted the plaintiff no. 1 additional needs pursuant to Section 21 Paragraph 3 No. 1 SGB II with the contested decisions, the contested decisions are unlawful and violate the plaintiff no. 1's rights.
According to Section 21 Paragraph 3 of the German Social Code, Book II (SGB II), persons who live with one or more minor children and are solely responsible for their care and upbringing are entitled to an additional allowance of 36 percent of the standard benefit applicable under Section 20 Paragraph 2 if they live with a child under seven years of age.
This is the case here. Plaintiff 1 lived with her minor son, Plaintiff 2, during the period in question. Plaintiff 2 was therefore under seven years old. The court is convinced that Plaintiff 1 was solely responsible for his care and upbringing. The court reached this conclusion primarily through the testimony of Plaintiff 1 and Plaintiff 2's mother, Ms. xxx, as witnesses.
Following the witness's testimony, the court is convinced that a very well-functioning family relationship exists between the plaintiffs and the witness, in which the first plaintiff and the witness support each other. This is evident from the witness's testimony that meals are eaten together and that supervisory duties are delegated to the witness to a certain extent, such as sometimes taking the second plaintiff to the playground or, if necessary, taking him to the doctor, where the first plaintiff would then travel from another location. However, this is not sufficient to convince the court that the witness made a significant contribution to the care and upbringing of the second plaintiff. The witness consistently and credibly testified that, in principle, the first plaintiff provided the primary source of education and care for the second plaintiff. According to the witness's testimony, the first plaintiff assisted the second plaintiff with meals, made appointments for him, got up at night when he woke up, and supervised him almost constantly. Only in situations where the first plaintiff was unable to attend the appointments herself or had other commitments did the witness take over appointments or supervision for the second plaintiff. Furthermore, the witness's interactions with the second plaintiff were limited to a grandmotherly relationship. The court is convinced that while a grandmother-grandson relationship existed between the witness and the second plaintiff, the first plaintiff provided the most significant educational and caregiving support. This is already evident from the witness's testimony that the second plaintiff was very attached to his mother, always wanted to sit next to her during meals, loved going to the playground with her, and sought the comfort of the first plaintiff when he woke up at night. The witness explained these statements consistently and was even able to describe some details, so the court sees no reason to doubt her credibility. Her statements largely coincide with those of the plaintiff and differ only slightly in some minor details. Against this background, the court finds that the statements of the witness and the first plaintiff appear neither rehearsed nor fabricated, which further supports the witness's credibility.
For the assumption that the first plaintiff is not solely responsible for the care and upbringing of the second plaintiff, it would be necessary that no other person provides her with sustained support in this endeavor, i.e., that no other person participates to a significant extent on an equal footing (cf. Knickrehm/Hahn in Eicher, SGB II Commentary, 3rd ed. 2013, § 21, para. 31). However, based on all the above, it cannot be assumed that the witness participates to a significant extent on an equal footing and in a sustained manner in the care and upbringing of the second plaintiff, so that sole responsibility for the care and upbringing lies with the first plaintiff.
The adjudicating chamber has come to the conclusion that the examination of the father of plaintiff no. 1 as a further witness can be dispensed with, since both the plaintiff and the witness have independently and credibly demonstrated that the father of plaintiff no. 2 cared little or not at all for plaintiff no. 2.
The plaintiff was therefore entitled to an additional allowance of 36% of the standard benefit rate applicable under Section 20 of the German Social Code, Book II (SGB II), as stipulated in Section 21, Paragraph 3, Number 1 of the SGB II, for the period in dispute. With a standard benefit rate of €359.00, this amounts to €129.24 for the months of November 2009 to April 2009. Since the plaintiffs only began receiving benefits under the SGB II on October 7, 2009, the additional allowance for the month of October is to be granted to the first plaintiff pro rata, starting from October 7, 2009. This results in higher benefits of €879.46 for the entire period in dispute.
2.
However, the lawsuit is otherwise unfounded.
Therefore, there are no legal concerns regarding the legality of the contested decisions.
The second plaintiff is not entitled to higher benefits under the German Social Code, Book II (SGB II), even after deducting the so-called insurance allowance of €30.00 from his income. The defendant correctly credited the second plaintiff's benefit entitlement in full with his income in the form of child benefit and child support advance payments.
Pursuant to Section 13 Paragraph 1 Number 3 of the German Social Code, Book II (SGB II), the Federal Ministry of Labor and Social Affairs is authorized, in agreement with the Federal Ministry of Finance and without the consent of the Federal Council, to determine by statutory order which flat-rate amounts are to be taken into account for the deductions to be made from income. This provision was implemented in the so-called Unemployment Benefit II Ordinance. According to Section 6 Paragraph 1 Number 2 of the Unemployment Benefit II Ordinance, in the version applicable during the period in dispute, a flat-rate amount of €30 per month is to be deducted from the income of minors for contributions to private insurance policies pursuant to Section 11 Paragraph 2 Sentence 1 Number 3 of the SGB II, which are reasonable in principle and amount, if the minor has taken out such insurance.
The adjudicating chamber is convinced that these conditions are not met.
Contrary to the defendant's view, the claim does not fail simply because the second plaintiff has not taken out his own insurance policy. The second plaintiff is a minor, so he is incapable of entering into an insurance contract. Therefore, the court is convinced that it is sufficient if the parents have taken out an insurance contract for the second plaintiff and the second plaintiff is the beneficiary. Otherwise, Section 6 Paragraph 1 No. 2 of the German Social Code, Book II (SGB II) would be obsolete, because a minor could never conclude a legally valid insurance contract.
However, the accident insurance policy taken out for the second plaintiff is, in the opinion of the court, not appropriate in either its basis or amount. According to the established case law of the Federal Social Court (BSG), the determination of the appropriateness of private accident insurance for children and adolescents under basic social security law depends on whether such precautionary expenditure is typically undertaken by recipients of incomes just above the basic social security threshold, or whether the individual's circumstances necessitate taking out such insurance (see BSG, judgment of February 16, 2012 – Case No.: B 4 AS 89/11 R).
The court is convinced that private accident insurance is not common for those with incomes just above the basic social security threshold. In the general population, and therefore even more so among families with incomes just above the social assistance threshold, private accident insurance is not common practice (see Federal Social Court, loc. cit.). This is particularly evident from the figures of the German Insurance Association (GDV), which were also submitted by the defendant, showing that accident insurance is taken out for children aged 0 to 14 in only about 36% of all cases.
The personal circumstances of the plaintiff (2) also do not support the conclusion that taking out private accident insurance would be appropriate for him.
According to established case law, special circumstances of an individual case can also lead to the conclusion that such private insurance is appropriate. These circumstances can include, for example, a particular vulnerability of the young person due to an illness or disability, or another life situation that creates a particular risk (see Federal Social Court [BSG], judgment of May 10, 2011 – Case No.: B 4 AS 139(10 R)). However, the court does not see such a case here. No illness or disability has been alleged for the second plaintiff, nor is anything of the sort apparent from the available documents. The mere fact that the plaintiff is careless and fearless does not, in the court's opinion, justify a deviation from the general rule that private accident insurance is not appropriate. According to the Federal Social Court's case law, special circumstances can include a particular vulnerability of the young person. In addition to illness and disability, the Federal Social Court cites other life situations that create a particular risk as examples. However, the court is convinced that the second plaintiff does not face such a life situation – even if he is "wild" and fearless – because the second plaintiff's circumstances and situations are no different from those of any other child. Clumsy or boisterous behavior alone does not constitute a life situation that differs from that of any other child. Furthermore, the court is convinced that the second plaintiff's accident insurance is unnecessary to cover risks, as all services for restoring his health are covered by statutory health insurance. Since the second plaintiff is still a minor, he is not required to make any co-payments. Moreover, the court is convinced that the second plaintiff's insurance also covers "luxury risks," without which the plaintiff would suffer no loss. This is particularly evident from the fact that the plaintiff has already received hospital daily allowance, convalescence allowance, and room-in allowance when the insurance has been used. Hospital daily allowance and convalescence allowance are not necessary services for restoring the second plaintiff's health. Here, the second plaintiff merely receives an additional sum of money that he would not otherwise have received. However, this is a "luxury benefit" that is not absolutely necessary. Regarding the room-in allowance the second plaintiff received, it should be noted that this benefit is also provided under health insurance law when necessary. According to the German Social Code, Book V (SGB V), the accommodation of a parent or both parents is a benefit of statutory health insurance when necessary.
After all this, the insurance taken out for the plaintiff no. 2 is not appropriate in terms of its basis and amount, so that no deduction of the insurance allowance from income pursuant to Section 6 Paragraph 1 No. 2 ALG II-VO is possible.
Insofar as it is further argued that liability insurance was taken out in the name of the plaintiff, the court is convinced that such liability insurance is also unnecessary for the second plaintiff, since the first plaintiff can take out a family liability insurance policy that would also cover the second plaintiff.
The decision on costs is based on Section 193 Paragraph 1 Sentence 1 of the Social Court Act (SGG).
The defendant's appeal is admissible pursuant to Sections 143 and 144 Paragraph 1 No. 1 of the Social Court Act (SGG) because the value of the subject matter of the appeal exceeds 750 euros. The plaintiffs' appeal was admissible pursuant to Section 144 Paragraph 2 No. 1 of the SGG due to its fundamental importance, since, as far as can be seen, it has not yet been clarified by a higher or supreme court whether a particular risk situation justifying the conclusion of accident insurance can also arise from a plaintiff's personal conduct in otherwise identical life circumstances.
The following is information on legal remedies.
— An appeal was lodged against the judgment. —
