Sparing ability

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The protected assets is one of the German Social Law and the German maintenance law common term and the restriction referred to the obligation to use their own assets .

In social law, it refers to those assets which, contrary to the principle of subsidiarity, a person in need does not have to use to earn a living ( Section 90 (2) SGB XII, Section 12 (3) SGB II).

In the case of parental maintenance , this describes a certain deductible that must remain with the person liable for maintenance so that he or she does not become needy as a result of the maintenance obligation ( Section 1603 (1) BGB). The Federal Court of Justice decided on the basis of individual cases which assets fall under this .

Examples of safe assets are certain allowances for financial assets, a suitable vehicle or suitable owner-occupied property . Saving assets when calculating parental support can also be limited amounts for old-age provision.

Social law

social care

According to Section 90, Paragraph 1 of Book XII of the Social Code, all realizable assets must be used. However, paragraph 2 lists a number of exceptions in which assets do not have to be used to receive social assistance.

The following therefore does not have to be used:

  • assets that are provided from public funds to build up or secure a livelihood or to set up a household. What is meant here are, for example, the benefits of the Load Equalization Act or the subsidy for a handicapped-accessible vehicle as part of the benefits for participation in working life according to the Motor Vehicle Aid Ordinance . The items acquired with it no longer fall under this point, but may be protected due to other regulations.
  • State-sponsored old-age provision ( Riester pension , Rürup pension , company pension ). In contrast to SGB II, the amount of pension provision is not limited.
  • other property, as long as it can be proven that it is intended for the early acquisition or maintenance of a house property, as far as this serves or is intended to serve residential purposes for disabled people or people in need of care and this purpose would be endangered by the use or the realization of the property. Proof of this can be provided, for example, by building plans and financing plans. The beneficiary does not have to be disabled himself; the assets can also benefit another person; the target person does not have to be in need of help either. The assets are protected as long as they can serve the stated purpose soon, that is, in a foreseeable period of time; Asset protection does not apply if the purpose can no longer be achieved, for example if the target person is permanently housed in an inpatient facility.
  • appropriate household items, the previous living conditions demand the person and the other in the use of community living persons must be considered.
  • Items that are indispensable for starting or continuing vocational training or employment; in addition, items that are indispensable for continuing school education
  • Family and heirlooms, the sale of which would mean particular hardship for the inquiring person or their family. A particular hardship is given, for example, when it comes to the last memento of a close relative.
  • Objects that serve to satisfy intellectual, in particular scientific or artistic needs and whose possession is not a luxury, in particular books, musical instruments, sound carriers, cameras and similar objects.

In the SGB XII legal system, unlike in the SGB II legal system, there are no general adequacy limits for owner-occupied residential property; an overall assessment must be made to determine whether the owner-occupied living space is appropriate or not. The law speaks of residential property "that is inhabited by the inquiring person or by another person named in § 19 Paragraphs 1 to 3 alone or together with relatives and is to be inhabited by their relatives after their death" . The last sentence is not intended to discriminate benefit recipients who have no relatives, but only to ensure the protection of the property even after the death of the benefit recipient as long as relatives live in the property.

Allowances

Small amounts of cash and other assets are also protected. The amount of this amount is based on Section 1 of the Ordinance Implementing Section 90 Paragraph 2 No. 9 of Book Twelve of the Social Code . The allowance for subsistence assistance is € 5,000. For each additional person who is supported by the recipient, an additional tax exemption of € 500 applies. If a child only receives benefits in kind (upbringing and care), it is not legally supported.

Section 2 of the Implementing Ordinance provides for the seldom used option of increasing or reducing the tax exemption. This corresponds roughly to the regulation of § 87 SGB ​​XII, according to which income is only used to an appropriate extent, whereby the appropriateness is determined according to the specifics of the individual case. A reduction in the tax exemption is only possible if the beneficiary has created the conditions for the granting of social assistance willfully or through gross negligence.

The amounts were increased in connection with the legislative process of the Federal Participation Act on April 1, 2017. Up to April 1, 2017, the tax exemptions amounted to € 1,600, and € 2,600 for people over the age of 60 and those with permanent disabilities. For help in special situations (Chapter 5 to Chapter 9), the allowance was also € 2,600. This amount increased by € 614 for the spouse or the living together parents of an unmarried minor child and € 256 for each person who was supported mainly (ie more than 50 percent) by the beneficiary or his parents. In the Help for the care and the blind aid for special treatment was: Were both spouses or both parents blind or seriously in need of care in terms of the care allowance , was set instead of the amount of 614 €, an amount of 1,534 €.

The tax exemption of € 5,000 also applies via § 1836c BGB to the remuneration and reimbursement of expenses for legal guardians , guardians and carers . This amount is also relevant for the approval of legal aid according to § 115 ZPO.

Unemployment benefit II

In the case of unemployment benefit II , the exemption limit according to SGB ​​II is at least € 3,850 and, depending on age, up to € 10,800 - without the pension allowance; By exhausting the tax exemption for special pension schemes according to Section 12 Paragraph 2 Clause 1 No. 3 SGB II, the saved assets can total up to € 61,050 (adults born in 1964 or later, as of April 17, 2010). Assets above the safe limit must generally be used before the social benefit can be claimed. There are exceptions here to avoid undue hardship .

II-occupied within the living space are appropriate in SGB condominiums to 120 m² and houses to 130 m² living space for a four-person household. If more or fewer people live in a household, 20 m² per person must generally be deducted or added. For one-person households, the lower limits of 80 m² in condominiums and 90 m² in houses apply. Also to be considered are plots of land which, as a rule, must not exceed 500 m² in urban areas and 800 m² in rural areas. In individual cases, a larger apartment may also be appropriate, for example if parts of the apartment are used commercially. In principle, only the community of need is to be taken into account for the size of the household, other residents of the apartment do not play a role. Exceptions can apply, for example, when foster children are accepted into the household. A residential property that is initially considered appropriate can later become inappropriate again, for example if the children move out.

Maintenance law

literature

  • Elisabeth Koch (Ed.), Michael Kamm (Ed.): Handbuch des Unterhaltsrechts . 11th edition Vahlen, Munich 2010, ISBN 978-3-8006-3512-2 .

Web links

Individual evidence

  1. ↑ cf. about BGH judgment of 7 August 2013 Az. XII ZB 269/12
  2. ↑ Brühl / Geiger in LPK-SGB XII, 8th edition, § 90 Rn 28
  3. ↑ Brühl / Geiger in LPK-SGB XII, 8th edition, § 90 Rn 29
  4. ↑ Brühl / Geiger in LPK-SGB XII, 8th edition, § 90 Rn 32
  5. ↑ Brühl / Geiger in LPK-SGB XII, 8th edition, § 90 Rn 35
  6. ↑ Brühl / Geiger in LPK-SGB XII, 8th edition, § 90 Rn 37
  7. ↑ Brühl / Geiger in LPK-SGB XII, 8th edition, § 90 Rn 38
  8. ↑ Brühl / Geiger in LPK-SGB XII, 8th edition, § 90 Rn 39
  9. ↑ Brühl / Geiger in LPK-SGB XII, 8th edition, § 90 Rn 40
  10. ↑ Brühl / Geiger in LPK-SGB XII, 8th edition, § 90 Rn 41
  11. ↑ Brühl / Geiger in LPK-SGB XII, 8th edition, § 90 Rn 45
  12. ↑ BGH, February 6, 2013, AZ XII ZB 582/12
  13. ↑ Brühl / Geiger in LPK-SGB XII, 8th edition, § 90 Rn 61
  14. ↑ Brühl / Geiger in LPK-SGB XII, 8th edition, § 90 Rn 62
  15. ↑ Act to strengthen the participation and self-determination of people with disabilities (Federal Participation Act)
  16. ↑ Federal Participation Act passed
  17. ↑ Changes to the tax exemptions on April 1, 2017
  18. ↑ Brühl / Geiger in LPK-SGB XII, 8th edition, § 90 Rn 60
  19. ^ BGH, June 10, 2008, AZ VI ZB 56/07
  20. ^ Federal Social Court, judgment of November 7, 2006 , Az.B 7b AS 2/05 R.
  21. ↑ BSG, September 18, 2014, AZ B 14 AS 58/13 R
  22. ↑ BSG, March 29, 2007, AZ B 7b AS 12/06 R
  23. ↑ BSG, October 12, 2016, AZ B 4 AS 4/16 R