SG Nuremberg, court decision of 30.07.2021

ZBenefits, pension, disability, integration assistance, decision, care allowance, pension, accommodation, court decision, service provider, long-term care insurance, claim, cohabitation, heating, long-term care insurance benefits, disabled people, integration assistance benefits

LSG Munich, judgment of 22.09.2022 – L 4 P 56/21

II. Extrajudicial costs are not to be reimbursed. Findings

The defendant’s obligation to grant care allowance according to care level 3 is in dispute between the parties.

The plaintiff, who was born in 1951, has been mentally disabled since birth. He lives since 27.06.1998 in the Lebensgemeinschaft e.V. M. and lives there in a single room in the house “S.”. The village community M. is open to adults with a mental or multiple disability within the meaning of § 53 Home Maintenance SGB XII (old version) from all over Germany and offers them a second area of life in addition to stationary living (workshop for disabled people with vocational training area or offer for daily organization according to housing and care contract of 30.06.2010). The village community M. describes itself in the contract as an institution of “integration assistance for people with disabilities”, i.e. people who have a right to accompaniment, assistance, help, promotion or care described in SGB IX or SGB XII. As such, it is subject to the provisions of the Law regulating the quality of care, care and housing in the event of mental disability or old age and the regulations derived therefrom. In addition, however, it is different and more than a traditional home (see Paragraph 1 of the detailed description of the contract). The Lebensgemeinschaft e.V. has concluded performance, remuneration and examination agreements with the competent social welfare institution, the district M. These agreements and the “Bavarian Framework Agreement for Semi-Inpatient and Inpatient Facilities” of 20.12.2004 form the basis of the contract concluded with the plaintiff. The pre-contractual information according to § 3 WBVG is also the basis of the contract and was handed over to the plaintiff and his representative on 20.05.2010 (cf. § 2 of the detailed description of the contract). The services of the village community M. are based on the individual life situation and the respective needs of the plaintiff and on the concept of the village community. They include, in particular, the provision of accommodation and meals, offers and measures for accompaniment, assistance, assistance, promotion or care as well as the provision of the facilities necessary for operation (cf. § 3 of the detailed description of the contract). At the time of the conclusion of the contract, the determination of the need for assistance for people with disabilities resulted in a classification of the plaintiff in the need group 3.

On 25.10.2019, the plaintiff’s representative applied to the defendant for payment of the disability care allowance pursuant to § 43a SGB XI as well as a pro rata care allowance. As justification, the representative stated that the plaintiff had care level 3, lived in a disabled facility (cohabitation M. in F.) and was a self-payer, i.e. did not receive any integration allowance or similar transfer payments. Thus, the care fund could not assume benefits under § 43a sentence 1. The plaintiff was therefore entitled to the full (here half) care allowance according to care level 3 (i.e. 50% of € 545 per month). He hereby makes the request to pay the plaintiff from January 2020 half of the care allowance according to care level 3 for aid recipients in the amount of € 272.50. Attached to the application was a confirmation of the Lebensgemeinschaft e.V. M. dated 24.05.2019, according to which the previous designation “stationary form of housing”, in which the plaintiff lives and is accompanied, changes in the course of the changes to the Federal Participation Act in SGB IX from 01.01.2020 into a “separate form of housing”. In addition, the representative of the defendant sent a decision of the Landschaftsverband W. of 17.03.2020, by which it had rejected an application by the plaintiff for the granting of integration assistance benefits. As justification, the Landschaftsverband W. had stated that the plaintiff was in principle entitled to integration assistance because of his disability. However, he has assets with which he is far above the exemption limit of € 57,330.00. According to his supervisor, he owns an apartment building with an estimated market value of € 615,000.00. The assets were to be used before claiming integration assistance benefits. In addition, the plaintiff continued to pay the costs of the dormitory himself from his rental income and his pension. He was therefore not economically dependent on social assistance.

By decision of 20.05.2020, the defendant rejected the application. However, it continued to contribute to the plaintiff’s expenses with a monthly amount of € 133.00 (entitlement to aid) pursuant to § 43a SGB XI. It was not possible to pay half of the care allowance (entitlement to aid).

In support of the objection lodged against this on 30.05.2020, the plaintiff’s representative submitted that the plaintiff had ensured the necessary care measures himself in an appropriate manner by choosing life on the M. as his form of housing. He also pays for this guarantee out of his own pocket. If the plaintiff is refused the grant of the care allowance under Paragraph 37 of SGB XI because his choice of form of housing fell on an institution of assistance for disabled people, he would be disadvantaged on account of his mental disability compared with other persons in need of care who were not mentally disabled. The choice of the form of housing should not have any influence on the granting of the care allowance.

By decision of 20.10.2020, the defendant rejected the objection.

With the action brought on 23.11.2020 to the Social Court Nuremberg, the plaintiff pursues his request with reference to the fact that the care allowance according to § 43a SGB XI only ceases if the disabled people “receive benefits of integration assistance for people with disabilities according to Part 2 of SGB IX”. In fact, he does not receive such benefits, since that entitlement is excluded because of his own income and assets.

The applicant’s agent claims that the Court should:

to amend the defendant’s decision of 20.05.2020 in the form of the objection decision of 20.10.2020 and to order the defendant to grant the plaintiff care allowance according to care level 3 instead of the aid according to § 43a SGB XI.

confirm the decision of 20.05.2020 in the form of the opposition decision of 20.10.2020 and dismiss the action as unfounded.

For further clarification of the facts, the court requested the agreements made with Lebensgemeinschaft e.V. M. and asked it to comment on whether it classified itself as an inpatient facility within the meaning of § 71.4 no. 1 SGB IX or as premises within the meaning of § 71.4 no. 3 SGB IX. With regard to the further details of the agreements, the statement of the Lebensgemeinschaft e.V. M. as well as the further details of the facts and the submissions of the parties, reference is made to the old court and the administrative file of the defendant. Reasons for the decision

The present dispute may be decided by judicial decision. The case does not present any particular difficulties of a factual or legal nature, the facts have been clarified. The interested parties were consulted.

The action is admissible but unfounded.

The defendant’s decision of 20.05.2020 in the form of the objection decision of 20.10.2020 is lawful and does not violate the plaintiff’s rights. The defendant rightly grants the plaintiff benefits under § 43a SGB XI; the plaintiff is not entitled to the granting of care allowance according to care level 3.