In time: child surcharge also for pensioners?

In time: child surcharge also for pensioners?

L 1 E 420/07 KG PKH illumination
S 20 KG 11/06 SG Kiel .

In the appeal process

– Applicant and applicant –
Represented by Raudszus, Gebhardt, Hamburger Strasse 27,
24306 Plön, – 1186 / 05G01 ko –
Familienkasse Hamburg support point Familienkasse, Kurt-Schumacher-Allee 16, 20097 Hamburg, – F01 – K 23/06
– Defendant and Respondent –
The 1st Senate of the Schleswig-Holstein State Social Court passed on June 5, 2007 in Schleswig without an oral hearing
the President of the State Social Court Dr. Stoll, the judge at the State Social Court in Brandt, the judge at the State Social Court in Daumann, decided:
In response to the complaint, the decision of the Kiel Social Court of March 15, 2007 was overturned and the plaintiff was granted legal aid with the assistance of lawyer Gebhardt.

The parties involved in the main dispute over the granting of a child supplement in accordance with Section 6a of the Federal Child Allowance Act (BKGG).
The 19th .. plaintiff lives with his children born in 1996 and 1998 in a domestic community. He draws a pension from the Agricultural Pension Fund in the amount of EUR 546.33 as well as a statutory pension. Pension insurance in the amount of EUR 133.08. He also receives child benefit of EUR 308.00. By decision dated November 17, 2005, in the version of the notice of opposition dated April 26, 2006, the defendant rejected the applicant’s application for a child supplement because the applicant had reached the age of 65. and receive an old-age pension and is therefore not entitled to receive benefits under the Social Code Book Two (SGB II). Since there is therefore no need for help according to § 9 SGB II, this cannot be avoided by the child supplement.
Against. The plaintiff addresses himself with his complaint brought before the Social Court in Kiel on May 17, 2006, on the grounds of which he submits on the one hand that the need for help required in § 6 Para Need for help from § 9 SGB II will be taken over. After that, the plaintiff is in need of help, otherwise a wording would follow. the one. Retirees as the father of underage children are fundamentally exempt from the child allowance, which contradict the European Union’s directive on discrimination. Because the plaintiff would then be discriminated against on the basis of his age.
By order of March 15, 2007, the Social Court rejected the plaintiff’s application for legal aid because the complaint offers no prospect of success. The social court referred to the legal provisions of section 6a (1) (3) of the BKGG in conjunction with section 9 of the Social Code Book II, which means that the child supplement cannot be paid to people who do not need assistance within the meaning of section 9 of the Social Code Book II could. In addition, paragraph 4 of SGB II contains the provision that benefits under SGB II do not receive who receives a pension due to old age. This legal situation also does not violate higher-ranking law. Because there was no violation of the general principle of equality in accordance with Article 3 (1) of the Basic Law (GG) or of the European law prohibiting age discrimination. Following the decision of the Social Court of Aachen on September 30, 2005 – S 8 KG 1/05 – the Social Court further stated that the child supplement should not only compensate for financial burdens due to the upbringing of children, but should also provide an incentive to work.
The complaint lodged on 11 April 2007 by the plaintiff, who did not remedy the social court, is directed against this. In essence, the applicant submits that, in his view, the European law directive establishes a general framework for the implementation of. Equal treatment in employment and occupation, which specifies exactly when a. Non – discrimination may be justified by. German legislators were not lawfully implemented in federal law. Because the General Equal Treatment Act (AGG), in which the European directive had been implemented, did not determine, contrary to the directive, when permissible different treatment due to age was possible.
The admissible complaint is well founded.
Contrary to the view of the social court, the conditions for the granting of legal aid are given.
Article 3 (1) of the Basic Law (GG) in conjunction with the rule of law requires extensive harmonization of the situation of the middlemen and the uninitiated in the implementation of legal protection. This does not rule out making the granting of legal aid dependent on the fact that the intended prosecution or defense has a reasonable chance of success. The examination of the prospect of success should not, however, serve to shift the legal prosecution itself into the summary legal aid procedure and to have this take the place of the main proceedings (see BVerfGE 81, 347 page 357)..
Legal aid does not always have to be granted if the legal question relevant to the decision has not yet been clarified by the highest judge. Notwithstanding the lack of relevant supreme judicial jurisprudence, the refusal of the grant can be justified if the legal question can be answered without difficulty in view of the legal regulation or with regard to interpretation aids already provided by existing jurisprudence. If, on the other hand, this is not the case and pending judicial clarification, it is contrary to the principle of equality of legal protection to withhold legal aid from the uninitiated due to the lack of a prospect of success. In this way, in contrast to the middleman, this would deprive the undocumented party of the opportunity to present their legal position in the main proceedings and to get to the higher court from there (see decision of the BVerfG of 14 June 2006 – 2 BvR 626/06, 2 BvR 656/06 – mwN- quoted from juris),
Measured against these principles, the plaintiff is to be granted legal aid. The question relevant to the decision as to whether retirees are excluded from the granting of a child allowance surcharge according to Section 6a BKGG is the highest judge in the present case. not yet clarified. After the investigation into juris, there are two first instance decisions, according to which pensioners have none. You are entitled to a child supplement according to § 6a BKGG and according to which the exclusion of pensioners from the scope of the mentioned standard does not violate constitutional law (SG Aachen from September 30, 2005 S 8 (4) KG 1/05; SG Koblenz from May 18 2006 – S 11 KG 14/03). There is no second-instance decision any more than that of the Federal Social Court. According to the Senate, the legal question is not without difficulties, also in view of the legal regulation, i.e. cannot be answered clearly and unambiguously, since in the context of a possible violation of the principle of equality, it must also be checked to what extent the legal basis of the 5 6a BKGG violates European law (here Art. 1, 6 of Directive 2000 from 78 / EC) in so far, than the reason for the incentive to work stated in the legal justification could not be covered by the directive.
Since the plaintiff’s personal and economic circumstances are otherwise fulfilled, he is entitled to legal aid as requested by the attorney Gebhardt. grant.

This decision is uncontestable according to § 177 SGG.
Dr. Stoll Brandt Baumann

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