Online message – Thursday 05/11/2023
Child Benefit | Determining the living needs of a child with a disability (BFH)
If an adult child with a disability draws a pension that was established through a reallocation of assets, the parts of the pension payments that exceed the income share are not to be taken into account as a reference (; published on
).
Background: Child benefit is granted to a child who is unable to support himself or herself because of a physical, mental or psychological disability that occurred before the age of 25. As a result, it depends on whether the child can cover his/her existential needs with the means available to him/her.
Facts: The defendant Family Benefits Office had set child benefit for the disputed period from December 2019 to July 2021. She reversed this determination with decisions of March 2021. The child’s father asserted that there was no change standard. The circumstances would not have changed. In addition, the Family Benefits Office incorrectly calculated the child’s income and benefits. His inheritance from his mother was earmarked and used to take out private pension insurance. The dismissal of the opposition decision is dated the dispatch note dated
. The Family Benefits Office described the internal organization of posting using a private postal service provider. According to the information provided by the plaintiff’s representative, he received the opposition decision
to. His complaint of be on time
(see our online message of June 7th, 2022).
The BFH saw the revision of the family benefit as unfounded:
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The FG rightly decided that the child was unable to support himself in the months of April to July 2021 due to his disability.
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The element of “being unable to support oneself” is not specified in the law. According to the established case law of the BFH, a disabled child is unable to support themselves if they cannot make a living.
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The ability of the adult disabled child to support himself is to be checked by comparing his total subsistence needs on the one hand and the financial means of his income and benefits on the other; the property of the child is not taken into account (constant case law).
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Annuities, which, as in the case at hand, are based on own payments, which were made exclusively or predominantly from taxed income, are not constitutionally typified with their entire amount, but only with their share of the income (§ 22 no. 1 sentence 3 letter a double letter. bb EStG) taxed.
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The question raised by the Family Benefits Office of the child’s right to dispose of the funds obtained after the death of his mother is irrelevant. The concept of wealth does not presuppose that it can be used as one pleases. Assets also belong to those who receive earmarked funds (e.g. a grant from parents for the purchase of real estate) or a profitable asset, e.g. as a pre-inheritance (§ 2113 Abs. 1
BGB) may not or cannot sell.
Those:
; NWB Datenbank (JT)
Source(s):
NWB GAAAJ-39640