Abusive behavior is hereditary

§ 21 - Other reasons

There is no entitlement to housing benefit,

1. if the housing benefit would be less than 10 euros per month,

2. if all members of the household are excluded from housing benefit according to §§ 7 and 8, paragraph 1 or

3. as far as the claim would be improper, in particular because of considerable assets.

Administrative regulation for § 21 WoGG

applicability

When examining the assessment of whether there is abusive behavior according to § 21 number 3 WoGG, the circumstances of the individual case must be taken into account.

21.32 Abuse

(1) As a rule, abusive behavior occurs if, from the point of view of an objective observer, a legal position is created solely for the purpose of creating the conditions for a claim that would otherwise not exist or not exist in this amount. With a view to the requirement of an economical and effective use of state funds and the character of the housing benefit as a subsidy, the abusive behavior turns out to be inappropriate and socially unreasonable from the point of view of an objective observer (see Federal Administrative Court, judgment of April 18, 2013, Az: 5 C 21/12, juris, paragraphs 9 and 11).

(2) An abuse under housing benefit law is z. This occurs, for example, if the members of the household are wholly or partially unable to pay the rent or raise the burden due to willful action or omission, and therefore the assumption is justified that the basis of the entitlement to housing benefit is (wholly or partially) artificial or constructed.21.33 Fictitious tenancies or subleases

(1) If a tenancy or sub-tenancy is apparently only established for the purpose of creating the prerequisites for an entitlement to housing benefit or to increase an existing entitlement, the housing benefit permit for the person entitled to housing benefit, who can be the main or sub-tenant, is wholly or partially Reject part.

(2) The housing benefit authority must examine the circumstances of the individual case in more detail, in particular in those cases in which the persons named in numbers 5.11 to 5.15 and 5.21 have rented the apartment or in which the rent is not paid by bank transfer.

(3) If the housing benefit authority has exhausted all possibilities of its own clarification of the facts (such as evaluation of the tenancy among relatives, submission of account statements with rent payments, requests for information from the landlord in accordance with Section 23 (3) WoGG or on-site investigation of the facts) and continues to do so In the context of an overall view to be carried out, there is reasonable suspicion that the tenancy or sub-tenancy is fictitious, the housing benefit authority can obtain information from the tax office as to whether the landlord has declared the rental income claimed (cf. § 31a paragraph 1 number 1 letter b Double letter bb AO).

21.34 Failure to increase income due to lack of gainful employment

The use of the housing allowance is to be rejected as abusive in whole or in part if household members to be considered can or was expected to contribute to the increase of the total income by taking up a job to such an extent that the rent or burden becomes bearable in whole or in part. Whether a household member can be expected to contribute to an increase in income through his or her own work can only be judged on the basis of the circumstances of the individual case; in doing so, the standard should not be too strict. A more detailed check is only to be carried out in the event of a noticeable deviation from the control behavior. The right to take responsibility for shaping one's own life and the freedom to choose a profession (cf. Article 2 paragraph 1, Article 12 paragraph 1 GG) must be taken into account. From the point of view of the household member to be considered, the chosen employment must be plausible and sensible.

21.35 Failure to increase income due to non-asserted maintenance claims

(1) Failure to increase income due to non-asserted maintenance claims can be considered in the following cases in particular:

  1. no maintenance is paid;

2. There are obvious indications of a good chance of success that higher maintenance payments can be enforced.

With the amendment to the UVG on July 1, 2017, there is an omitted increase in income even if the single parent does not apply for a maintenance advance although there may be an entitlement to these benefits. The same applies in particular if the services under the UVG have been denied due to a lack of cooperation. The application for housing benefit must be completely rejected if the single parent does not apply for an advance maintenance payment. If a BWZ that is in operation when the WoGVwV comes into force in 2017 is due to the amendment of the UVG on July 1, 2017, an entitlement to an advance maintenance payment arises for the first time (e.g. for single parents receiving housing benefit with children between the ages of 12 and completed 17 years of age), the requirements of sentence 1 must only be checked in the following BWZ when calculating the housing benefit. If the BWZ advance maintenance payment is approved during the BWZ maintenance advance that was in effect at the time the WoGVwV came into force in 2017, a new decision on the entitlement to housing benefit must be made ex officio under the conditions of Section 27 (2) WoGG.

(2) The housing allowance application is to be rejected in whole or in part if a household member to be taken into account does not assert maintenance claims against the persons named in Section 23 (1) sentence 1 number 3 WoGG, although enforcement is reasonable for him (see paragraph 6) and obviously There are good chances of success for enforcing (higher) maintenance claims during the housing allowance period (see paragraph 11).

(3) A distinction must be made between the rejection of the housing allowance application according to § 21 number 3 WoGG in the cases of §§ 66, 60 SGB I, in which household members to be considered do not provide any information about whether or to what extent maintenance claims exist or do not participate in this and therefore the facts cannot be clarified (see Part B number 66.01 ff.). Depending on the individual case, the person entitled to housing benefits must be informed in writing of the possibility of refusal according to Sections 66, 60 SGB I or rejection according to Section 21 number 3 WoGG. The housing benefit authority should not fictitiously credit maintenance that has not been paid or not paid in the amount of the maintenance claim.

(4) To examine the maintenance claims of a household member to be considered, the housing benefit authority must determine in each individual case:

1. the statutory provision according to which the maintenance claim exists (cf. numbers 21.351 to 21.356);

2. Surname, first name, date of birth and address of the person obliged to provide maintenance;

3. in the case of separation or divorce, the time of separation or divorce or the time of the termination of the civil partnership;

4. the amount of the maintenance claim resulting from a maintenance title or other evidence (e.g. a maintenance agreement);

5. the actual maintenance payments, usually for the last six months.

In addition to the household members to be taken into account, the persons named in Section 23 Paragraph 1 Clause 1 Number 3 WoGG, even if they are not household members, are required to provide information in order to establish a maintenance claim (if necessary, enforcement with the threat of fines).

(5) If there are several dependents and the person liable for maintenance is unable to provide all maintenance, the following order of priority applies (Section 1609 BGB):

1.

Underage unmarried children and children up to the age of 21 in the parents' household and in school education,

2.

Parents who are entitled to depend on caring for a child or would be in the event of a divorce, as well as spouses and divorced spouses in a long-term marriage,

3.

Spouses and divorced spouses who do not fall under number 2,

4.

Children who do not fall under number 1,

5.

Grandchildren and other descendants,

6.

Parents,

7.

Grandparents.

(6) The enforcement of (higher) maintenance claims against the persons named in § 23 paragraph 1 sentence 1 number 3 WoGG, in particular the application for a maintenance advance under the UVG, is generally reasonable (for the maintenance obligation of the respective persons see numbers 21.351 to 21.356) . An unreasonableness exists only in exceptional cases, if z. B. the person liable for maintenance has committed a criminal offense against the physical integrity of the dependent household member or his / her parent. Paragraph 14 must be observed for exceptions to improper use.

(7) The housing benefit authority has to clarify with the household members to be considered and the persons named in § 23 paragraph 1 sentence 1 number 3 WoGG, for what reason household members to be considered do not receive maintenance or actual maintenance payments deviate from the maintenance title or the maintenance agreement. On the basis of the evidence submitted and the declarations submitted, it must be checked whether the enforcement of (higher) maintenance claims in the housing allowance period clearly promises good prospects of success (see paragraph 11). Evidence from more than a year ago should not be accepted. The investigations to clarify (higher) maintenance claims must be documented in the housing benefit file.

(8) The housing benefit authority should not make its own calculations, but should instead rely on the participation of the household members to be taken into account and the persons named in Section 23 (1) sentence 1 number 3 WoGG. In order to be able to determine whether maintenance claims exist and whether or what reasons exist for the fact that maintenance is not paid, the housing benefit authority should also ask the youth welfare office for information. If the household members to be considered do not cooperate, the entitlement to housing benefit according to §§ 66, 60 SGB I is to be denied (cf. Paragraph 3).

(9) The person entitled to housing benefits must explain whether and what reasonable efforts they have made to enforce (higher) maintenance claims. Efforts by the household member to be considered or his legal representative must be recognizable.

(10) If no father is entered in the birth certificate because paternity has not been recognized in the sense of § 1592 number 2 BGB, the matter must be further clarified. If the father is not known, the chances of success for enforcing maintenance claims are not good (see paragraph 12 number 4), but there may be a claim to benefits under the UVG (see paragraph 1 sentences 2 to 4). If the father is known but not entered in the birth certificate, the single mother is to be referred to the support of the youth welfare office in determining paternity (see paragraph 13 sentence 5).

(11) Obviously good chances of success for the enforcement of (higher) maintenance claims during the housing allowance period can exist in particular,

1.

if the financial circumstances of the person obliged to provide maintenance have improved,

2.

if the person liable for maintenance pays less maintenance than is stipulated in the maintenance title or the maintenance agreement for no reason,

3.

if the maintenance title against the separated or divorced spouse is older than five years or

4.

if the dependent child has reached a new age level within the meaning of Section 1612a Paragraph 1 BGB.

(12) There are no good chances of success for the enforcement of (higher) maintenance claims during the housing allowance period in particular if

1. if the person obliged to pay maintenance receives transfer payments,

2. if the person obliged to pay maintenance is unable to work or unemployed and therefore unable to work,

3. if the net income of the person liable for maintenance is below the deductible limit (see so-called Düsseldorf table),

4. if the child's father is unknown,

5. if the person obliged to pay maintenance cannot be found due to constant change of residence or is in a third country (not an EU country),

6. if a lawsuit has been brought against the person liable for maintenance due to the enforcement of (higher) maintenance claims, but the court will no longer decide in the BWZ (which may be shortened),

7. if an application for legal aid for a maintenance claim against the person obliged to pay maintenance was rejected because the legal proceedings did not offer sufficient prospect of success,

8. if there is a letter from a lawyer commissioned to pursue the maintenance claim or from the assistance to assert maintenance claims from parents who are not married according to §§ 1712 ff. BGB, according to which the prosecution does not offer a sufficient chance of success,

9. if the foreclosure of the maintenance title against the person liable for maintenance has so far been unsuccessful,

10. if the child to be considered receives or has received benefits under the UVG or

11. if the parents have the same net income and care for half of the child or children each, without one parent bearing the main responsibility for the child or children (so-called switching model, see Federal Court of Justice, decision of November 5, 2014, AZ: XII ZB 599/13, juris, 2nd principle and paragraph 20).

(13) If a household member to be taken into account can reasonably be expected to enforce (higher) maintenance claims (see Paragraph 6), there are obviously good chances of success for the enforcement of (higher) maintenance claims in the housing allowance period (see Paragraph 11) and make the household member credible, Efforts to establish and / or enforce (higher) maintenance claims may have to be shortened if this means that significant changes in total income are to be expected (see number 25.11, paragraph 2). In addition, the household member must be asked to take the necessary actions within a reasonable period of time. As part of the review of an application for further benefits, the efforts and the chances of success must be re-examined. Required efforts that can lead to a shortened BWZ are e.g. B. before

1. if the dependent person or their legal representative has made an appointment with the youth welfare office or a lawyer to assert maintenance claims,

2. if an action has been brought to enforce maintenance claims,

3. if an application for an advance maintenance payment has been made in accordance with the UVG,

4. if there was a support (possibly transferred according to Article 223 EGBGB) according to § 1712 BGB or - possibly according to state law - possible association support or

5. if there was an official guardianship or an official guardianship appointed for the task of establishing paternity and / or asserting maintenance claims.

The person entitled to housing benefit should be made aware of the support options provided by the Youth Welfare Office (e.g. advice on the amount of maintenance entitlement and assertion under civil law, determination of paternity, assistance in asserting maintenance claims for parents who are not married according to Sections 1712 et seq. BGB) become.

(14) In particular, the use of housing benefit is not abusive if

1. a household member to be taken into account does not assert any maintenance claims against their adult children (so-called parental maintenance),

2. a household member to be considered has not waived the maintenance of his divorced spouse in the divorce decree (or in the case of a civil partnership: in the annulment decision on maintenance of his former partner) in the immediate temporal connection with the application for housing benefit or

3. a household member to be taken into account has not legally waived the maintenance of his separated spouse or partner in the immediate temporal connection with the application for housing benefit.

21.351 Maintenance claims of the spouses and life partners among themselves

(1) Spouses are mutually obliged to adequately support the family through their work and their property (Section 1360 sentence 1 BGB). According to this, the spouses must provide themselves with economic means for a reasonable living as well as provide personal services (cf. §§ 1360a, 1360b BGB). A spouse who is entrusted with housekeeping usually already fulfills his obligation by running the household (Section 1360 sentence 2 BGB).

(2) Registered life partners are obliged to care and support each other as well as to shape life together. They are responsible for one another and are obliged to adequately support the partnership through their work and with their assets (§§ 2, 5 LPartG). Sections 1360 sentence 2, 1360a and 1360b BGB apply accordingly (Section 5 sentence 2 LPartG).

(3) Special features of maintenance claims between spouses and life partners are only to be taken into account in the event of separation. A distinction must be made here between separation maintenance (cf.Paragraph 4), which is to be paid during the separation, but still during the existence of the marriage, and the divorced maintenance (post-marital maintenance; see number 21.35b). A distinction must be made between this and child support, which must always be satisfied with priority (cf. § 1609 BGB, numbers 21.355 and 21.356).

(4) In the event of separation, the spouse is entitled to appropriate separation maintenance against the other spouse (Section 1361 BGB). The spouses live separately if there is no domestic community between them and one spouse clearly does not want to establish it because he rejects the marital union (Section 1567 (1) sentence 1 BGB). Separation can also exist if the spouses live separately in the same apartment (cf. § 1567 paragraph 1 sentence 2 BGB). For this purpose, it is sufficient if, according to objective criteria, the separation from the outside becomes clear (the spouses, incidentally, lead an independent life). Separation maintenance only includes the necessities of the dependent spouse, but not those of the children together. They have their own maintenance claim (see numbers 21.355 and 21.356).

As with all statutory maintenance claims, a claim to separation maintenance only exists on the condition that

1. the person demanding maintenance is in need and

2. the person from whom maintenance is required is productive.

In the event of separation, the spouse who is not gainfully employed can only be instructed to earn his / her maintenance himself through gainful employment if he / she does so according to his / her personal circumstances, in particular because of previous employment, taking into account the duration of the marriage, and according to the economic circumstances both spouses can be expected (Section 1361 (2) BGB).

In terms of content, both spouses must be financially in the separation period, as it corresponded to the marital standard of living, i. H. In principle, both spouses are each entitled to half of the total income available in the marriage (principle of half-division). However, the employed spouse is generally awarded an additional part of his income when assessing his / her maintenance obligation (employment bonus). The employment of the dependent spouse also generally leads to a reduction in the maintenance entitlement.

With the final judicial divorce, the entitlement to separation maintenance no longer applies.

(5) The same applies (cf. Paragraph 4) to civil partners living separately, as long as their civil partnership has not yet been terminated by a judicial decision (Section 12 LPartG). With the judicial annulment of the civil partnership, the entitlement to separation maintenance no longer applies.

(6) The household members must prove or document a reduced ability of the spouse or partner liable for maintenance or reasons for the unrealizable or unreasonable enforcement of the maintenance claim by means of appropriate documents (cf. § 23 Paragraph 1 and 5 WoGG in connection with §§ 60 and 65 paragraph 1 and 3 SGB I).

Possible reasons are:

1. Spouse or life partner has moved abroad or is unknown or

2. Spouse or life partner is unemployed.

21,352 maintenance claims of the divorced spouses or civil partners after the civil partnerships have been terminated

(1) After the divorce, it is fundamentally up to each spouse to provide for their own maintenance (Section 1569 BGB). He has against the other spouse only under certain conditions (e.g. maintenance due to care of a child, due to age or illness, due to unemployment; maintenance for the period of training, further education or retraining; maintenance for reasons of equity; cf. §§ 1570 bis 1576 BGB) a claim to maintenance if he is unable to provide for his own maintenance. The divorced spouse is only in need if he cannot finance his own maintenance from his income and assets (cf. § 1577 BGB). Ongoing maintenance is to be granted by paying a monthly cash pension (Section 1585, Paragraph 1, Clause 1 of the German Civil Code). It includes the entire life needs and is determined according to the marital living conditions (§ 1578 paragraph 1 BGB). The working divorced spouse is usually awarded an additional part of his income when assessing his / her maintenance obligation (employment bonus). The employment of the dependent spouse also generally leads to a reduction in the maintenance entitlement. The person liable for maintenance must be efficient, i. H. be able to provide maintenance to the entitled person without endangering their own reasonable maintenance. If the person liable for maintenance is not productive, he only needs to provide maintenance in accordance with Section 1581, Paragraph 1, Clause 1 of the German Civil Code to the extent that it is equitable, taking into account the needs and the earnings and financial circumstances of the divorced spouses. In Section 1579 BGB, reasons are listed for which maintenance can be limited or refused, especially if the person entitled to maintenance lives in a new cohabiting partnership. For the ranking of several dependents see § 1609 BGB, number 21.35 paragraph 2.

(2) The civil partnership is terminated at the request of one or both civil partners by judicial decision (Section 15 (1) LPartG). With the dissolution of the civil partnership, it is up to each life partner to provide for their own maintenance. If he is not able to do so, he has a claim to maintenance from the other partner according to § 16 LPartG in accordance with the maintenance obligation of divorced spouses (see §§ 1570 to 1586b and 1609 BGB).

(3) A reduced ability to work of the divorced spouse or civil partner who is obliged to maintain maintenance after the civil partnership has been terminated or reasons for the unrealizable or unreasonable enforcement of the maintenance claim must be proven or documented by the household members by means of appropriate documents (cf. § 23 paragraph 1 and 5 WoGG in connection with §§ 60 and 65 paragraph 1 and 3 SGB I).

Possible reasons are e.g. B. into consideration:

1. the former spouse or life partner has moved abroad or is unknown,

2. the former spouse or life partner is unemployed,

3. the former spouse or life partner lives in a new cohesive partnership or

4. the marriage or civil partnership was of short duration (cf. § 1579 BGB, § 16 LPartG).

21,353 maintenance claims by the mother against the father of her illegitimate child

The father has to grant the mother maintenance for the period from six weeks before to eight weeks after the birth of the child (§ 1615l paragraph 1 BGB). In addition, the mother is entitled to a maintenance claim against the father if she does not pursue gainful employment because she is unable to do so as a result of pregnancy or an illness caused by pregnancy or childbirth. Likewise, if the mother cannot be expected to work because of the care or upbringing of the child. The prerequisites for the entitlement correspond to the provisions on the maintenance of relatives (see number 18.033), in particular with regard to the mother's need (Section 1602 (1) BGB) and the father's ability to pay (Section 1603 (1) BGB).

21,354 maintenance claims by the father against the mother of his illegitimate child if the father takes care of the child

If the father takes care of the child, he is entitled to care maintenance from the mother (Section 1615l, Paragraph 4 BGB).

21,355 maintenance claims of the child against his parents

(1) Children are entitled to maintenance from their parents if they are unable to support themselves. A minor, unmarried child is not obliged to pursue gainful employment or to utilize his or her assets (cf. § 1602 Paragraph 2 BGB). The needs of minors and children of legal age include in particular the costs of adequate education (see in particular number 21.356). The child's own income (e.g. training allowance) and income from his or her assets (rental income, interest, dividends) generally reduce his or her maintenance needs.

(2) Parents owe maintenance

1. their unmarried minor children (cf. §§ 1602, 1603, 1610, 1612a BGB),

2. their unmarried children of full age up to the age of 21, as long as they live in the household of their parents or one of the parents and are in general school education (so-called privileged children of legal age, see. §§ 1602, 1603 Paragraph 2 Clause 2, § 1610 BGB) and

3. their adult unmarried children who are not covered by number 2 (so-called unprivileged adult children).

For those entitled to maintenance under sentence 1 number 3, the general order of precedence according to § 1609 BGB (see number 21.35 paragraph 5) applies, i. This means that the parents must primarily fulfill the maintenance obligation for minors and privileged children of legal age. Only then do adult unprivileged children follow. If children are married, their spouses are primarily responsible for maintenance (cf. § 1360 sentence 1 BGB).

(3) The parents are only obliged to provide maintenance if they are productive. Those who can pay maintenance without endangering their own reasonable maintenance are capable of performing (Section 1603 (1) BGB). However, there is an increased maintenance obligation of the parents

1. to underage unmarried children as well as

2. towards adult unmarried children who have not yet reached the age of 21, live in the household of one of their parents and are in general school education.

In these cases, the parents are obliged to use all available means equally for themselves and the child (Section 1603 (2) BGB).

(4) In the case of the separation of the parents of a minor child, the parent with whom the child grows up usually meets his / her maintenance contribution by caring for and bringing up the child (so-called care maintenance, Section 1606 (3) sentence 2 BGB). The other parent is responsible for cash maintenance, i. H. he basically provides maintenance by paying a monthly pension (cf. § 1612 BGB). For this purpose, § 1612a BGB provides for a minimum maintenance for underage children, which is set out in the Minimum Maintenance Ordinance. Building on this, the current so-called Düsseldorf table contains guidelines for determining the specific cash maintenance needs of dependent children in the case of a higher income of the parents. The Düsseldorf table has no legal force and is not binding for the courts, so that it can be deviated from, taking into account the individual case. It shows the monthly maintenance needs based on two dependents, regardless of rank. The requirement is not the same as the payment amount. The amount of maintenance is calculated after deducting certain allowances and the monthly child benefit. The reference rates for the first income group correspond to the minimum requirement according to the Minimum Maintenance Ordinance.

Since the child benefit is due to both parents as a family and is intended to secure the subsistence level of the child, the person who owes cash maintenance (with whom the child does not live) may reduce the maintenance amount by half of the child benefit (cf. § 1612b BGB). To take child benefit into account as a deduction from maintenance payments according to § 18 WoGG, see numbers 18.08 and 18.09; regarding the consideration of so-called forwarded child benefit as income of the child under housing benefit law, see number 14.21.19 paragraph 2.

(5) From the age of majority, there is no childcare maintenance. In principle, both parents are then obliged to pay cash maintenance proportionally according to their income and financial circumstances, i. H. also the person with whom the adult child lives in the household (cf. § 1606 paragraph 3 sentence 2 BGB). As a result, the parent who is responsible for cash maintenance (or, in the case of a child who is of legal age, both parents) must make every effort to achieve reasonable gainful employment and use all available funds equally for his and the child's maintenance. The amount of the deductible for the parent who is responsible for cash maintenance is not regulated by law, but has to be determined on a case-by-case basis. The so-called Düsseldorf table and the guidelines issued by the family senates of the higher regional courts provide guidance. Half of the child benefit is offset against the respective portion of the cash maintenance. To take child benefit into account as a deduction from maintenance payments according to § 18 WoGG (cf. numbers 18.08 and 18.09); regarding the consideration of so-called forwarded child benefit as income of the child under housing benefit law, see number 14.21.19 paragraph 2.

(6) For the maintenance claim of a child born out of wedlock against his / her father, the same regulations on maintenance apply as for children of married parents (see paragraphs 1 to 5; § 1615a BGB).

(7) In particular in the case of child and trainee maintenance not being paid, the person entitled to housing benefit should be asked to explain

1. why the obtaining of a maintenance title or at least a legal figure for the maintenance due has not been made,

2. whether and when the person obliged to provide maintenance was asked to provide information about their income and assets in accordance with Section 1605 of the German Civil Code,

3. whether and with what result the help of the youth welfare office (assistance according to § 1712 paragraph 1 number 2 BGB) was used or why this free support was not used and

4. the reasons why the maintenance amount was not enforced.

21,356 training maintenance

(1) There are always indications of claims for educational maintenance against the parents if the child is completing an apprenticeship and does not live with both parents. A BAföG notification provides clues for the existence, but not for the amount of maintenance claims under civil law. In any case, the income of the parents in the penultimate calendar year can be taken from such a notification.

(2) The maintenance includes the entire life needs including the costs of an adequate previous education for a profession (§ 1610 paragraph 2 BGB). Maintenance is owed until the completion of initial vocational training, i. H. until a first professional qualification is obtained. In addition, it can behave differently under certain circumstances if a degree is to follow an apprenticeship in order to achieve a better qualification. Here, however, there must be a substantive connection between teaching and studies (e.g. banking apprenticeship and business administration studies). In particular, number 21.355 paragraph 7 and number 21.35 paragraph 3 and 6 to 13 must be observed.

(3) There is no fixed age limit for starting training, after which the entitlement to training maintenance ceases to exist. The question of when it is up to the maintenance beneficiary to start his training depends on the circumstances of the individual case (see Federal Court of Justice, decision of July 3, 2013, Az: XII ZB 220/12, juris, paragraph 16). However, it can be assumed that a child will begin initial training or undertake voluntary service up to the age of 25 (see also Section 2 (2) BKGG and Section 33 (2) number 2b SGB II).

(4) A claim to training maintenance only exists if the training is completed with diligence and the required determination in a reasonable and customary time (see e.g. Federal Court of Justice, judgment of March 4, 1998, Az: XII ZR 173/96 , juris, paragraph 9). It is assumed that this is not the case if the household member is basically not entitled to training grants under BAföG because the requirements of number 20.21 paragraph 1 sentence 3 number 7 or number 12 are met. In this case, there are no good chances of success for the enforcement of (higher) maintenance claims in the BWZ.

21:36 Rejection due to substantial assets

The offense of abuse is fulfilled if the overall circumstances of the respective individual case allow the conclusion that the housing benefit contradicts the objective of § 1 WoGG to economically secure adequate and family-friendly housing through a subsidy to the housing costs. A detailed examination of the assets is only to be carried out if there are concrete indications of substantial assets.

21.37 Substantial wealth

(1) Substantial assets within the meaning of Section 21 number 3 WoGG are generally available if the sum of the usable assets of the household members to be taken into account exceeds the following amounts:

1. 60,000 euros for the first household member to be considered and

2. 30,000 euros for each additional household member to be taken into account.

(2) Assets within the meaning of § 21 number 3 WoGG are the totality of the goods of all household members to be taken into account, measurable in money. Income and assets are fundamentally differentiated from each other in that income is everything that someone receives in the period of need (i.e. the time when benefits are drawn), and assets are what they already have in the BWZ (cf.Federal Administrative Court, judgment of February 18, 1999, Az: 5 C 35.97, juris, paragraph 14).

(3) Assets within the meaning of § 21 number 3 WoGG only include realizable assets with their market value. Assets can be used if they are used for livelihood or if their monetary value can be made usable for livelihood, in particular through sale, consumption, transfer, loan, renting or leasing. Assets over which the owner z. B. cannot freely dispose of it due to bankruptcy, seizure or pledging. If an asset is only partially usable, only this part is to be considered as an asset. If there is substantial wealth, it is rebuttably presumed that it is realizable. The full burden of proof that the assets cannot be used lies with the person entitled to housing benefits.

In principle, the following cannot be used:

1. Entitlements to company pension schemes in accordance with the Company Pension Act (Sections 2 and 3 BetrAVG), regardless of the chosen implementation method (direct commitment, relief fund, direct insurance, pension fund or pension fund) and regardless of whether the company pension scheme was financed by the employer or through deferred compensation ;

2. The right to a personal life annuity (so-called Rürup pension), which according to § 10 Paragraph 1 Number 2b EStG is non-heritable, non-transferable, non-lendable, non-salable and non-capitalisable, and for which there is no further entitlement to payment.

(4) Assets within the meaning of Section 21 Number 3 WoGG include:

1. Money and monetary values, e.g. B. Cash (legal tender) and checks,

2. Movable items, e.g. B. jewelry, paintings and furniture,

3. immovable property, e.g. B. developed and undeveloped land,

4. Monetary claims, e.g. B. Claims for loan repayment,

5. other rights, e.g. B. Rights from bills of exchange, shares and other company shares, rights from home ownership, rights from land charges, usufruct, easements, retirement, including copyrights, insofar as the use is an asset that can be valued in money.

(5) Assets within the meaning of Section 21 number 3 WoGG do not include:

1. the property, the heritable building right, the property-like permanent housing right, the housing right and the usufruct in each case with regard to the self-used living space for which housing benefit is requested,

2. the right to order or transfer the rights mentioned in number 1 with regard to the self-used living space for which housing benefit is requested,

3. Assets that are provided from public funds to build up or secure a livelihood or to set up a household,

4. Retirement provision on the basis of a certified retirement provision contract in the amount of the amount in accordance with § 10a or XI. Section of the EStG promoted assets including its income and the promoted current pension contributions, provided that the owner does not use the pension assets prematurely (cf. § 93 EStG),

5. Pecuniary claims that serve to provide for old age if the owner cannot utilize them prior to retirement due to a contractual agreement and the value of the pecuniary claims is EUR 1,500 per completed year of age of the employable household members to be taken into account, at most, however each 90,000 euros, not exceeding,

6. Appropriate household items,

7. an appropriate motor vehicle for each adult household member to be taken into account,

8. Items that

a)

are indispensable for vocational training or employment or

b)

serve the satisfaction of intellectual, in particular scientific or artistic needs and the possession of which is not a luxury,

9. Compensation for pain and suffering according to § 253 paragraph 2 BGB, with the exception of the interest obtained from the investment of compensation for pain and suffering (Federal Administrative Court, judgment of February 9, 2012, Az: 5 C 10/11, juris, guiding principle and paragraphs 9 and 30) as well as other services with the nature of compensation (e.g. from the fund “Home Education in the GDR from 1949 to 1990” and “Home Education West”).

(6) If an application for housing benefits is rejected because of considerable assets, the housing benefit authority can individually identify the assets for each household member to be considered in the rejection notice. If the assets are to be allocated to several household members jointly, it can be specified to which part the assets are allocated to the respective household member (e.g. if two people co-own an object without a deviating agreement or statutory provision, half each).

To § 21 No. 2

21.21 Cooperation between the housing benefit authorities and the transfer benefit authorities when deciding on housing benefit

(1) The housing benefit authority may not refuse to accept and process a housing benefit application and refer the person entitled to housing benefit to the transfer benefit authorities if the person entitled to housing benefit is entitled to transfer benefits (Section 7, Paragraph 1, Clause 1, No. 1 to 9 WoGG) to which they are entitled, has not applied for and does not want to claim.

(2) For home residents without support for living (Sections 27 et seq. SGB XII) and without basic security benefits in old age and in the event of reduced earning capacity (Sections 41 et seq. SGB XII), but with other aids in accordance with SGB XII, the social service provider is lacking No right to apply for the same service (Section 95 SGB XII) and, with the exception of the cases according to Section 104 (1) sentence 4 SGB X, no right to reimbursement according to Sections 102 ff. SGB X (see, however, Section 3). However, an application from a social security provider based on a power of attorney issued by the home resident is permitted. Agreements between the home resident and the social service provider for the payment of the housing benefit directly to the social service provider are possible according to Section 26, Paragraph 1, Clause 2 of the WoGG.

(3) There is a right to reimbursement according to Section 104, Paragraph 1, Clause 4 of Book X of the Social Code when services are provided according to the so-called gross principle (Section 92, Paragraph 1 of Book XII of the Social Code). If support is not provided, the recipient of the social assistance benefit is entitled to housing benefit. In these cases, according to Section 95 of Book XII of the Social Code, the social security provider has the right to apply for housing benefit. The housing benefit is to be reimbursed to the social security provider upon request.

(4) If an entitlement to assistance with livelihood is established or denied after a delay, this must also be decided retrospectively. Until a decision has been made about assistance with living expenses for a previous period, the housing benefit is to be refused due to the lack of evidence of the facts justifying the claim and of verifiable documents (Section 60 SGB I).

(5) A reimbursement obligation according to Section 104 (1) sentence 4 SGB X can exist if a social benefit is provided as a loan.

On § 21 No. 3

21.31 Applicability

Section 21 no. 3 WoGG is only applicable if the housing benefit has not already been refused in accordance with Section 21 no. 1 or no. 2 WoGG.

21.32 Abuse

(1) As a rule, improper behavior occurs when, from the point of view of an objective observer, a legal position is created solely for the purpose of creating the conditions for a claim that would otherwise not exist or not exist in this amount.

(2) A housing allowance abuse is z. For example, if the members of the household are wholly or partially unable to pay the rent or raise the burden due to willful action or omission, and therefore the assumption is justified that the basis of the entitlement to housing benefit is (wholly or partially) constructed.

21.33 Fictitious subleases

If a sub-tenancy was evidently only established for the purpose of creating the conditions for entitlement to housing benefit or to increase an existing entitlement, the housing benefit permit for the applicant, who can be the main or sub-tenant, must be completely or partially refused.

21.34 Failure to increase income

(1) The use of the housing allowance is to be rejected as abusive in whole or in part if household members to be considered can or was expected to contribute to the increase of the total income by taking up a job to such an extent that the rent or burden becomes bearable in whole or in part. Whether a household member can be expected to contribute to an increase in income through his or her own work can only be judged on the basis of the circumstances of the individual case; in doing so, the standard should not be too strict.

(2) The housing allowance is also to be refused in whole or in part if a household member to be taken into account does not assert maintenance claims, although enforcement is reasonable for him. This is only the case if maintenance claims are not asserted against persons named in Section 23 Paragraph 1 Clause 1 No. 3 WoGG.

21.35 Rejection due to substantial assets

(1) The offense of abuse is fulfilled if the overall circumstances of the respective individual case allow the conclusion that the housing benefit contradicts the objective of § 1 WoGG to economically secure adequate and family-friendly housing through a subsidy to the housing costs.

(2) The prerequisite for a rejection due to substantial assets is that the financial circumstances on which the rejection is to be based have been clarified. If the household member to be considered claims to earn his living from assets that have not been proven, but there is no clear and detailed information on the specific income situation and the housing allowance authority cannot therefore understand the means by which the subsistence is covered, a refusal based on the principles of material income is given priority Burden of proof or an income estimate to be considered. A housing benefit application should only be rejected as abusive because of considerable assets if there are no other simpler ways of rejecting it. A detailed examination of the assets is only to be carried out if there are concrete indications of substantial assets.

21.36 Substantial wealth

(1) Substantial assets within the meaning of § 21 No. 3 WoGG are usually available if the sum of the usable assets of the household members to be taken into account exceeds the following amounts:

1. 60,000 euros for the first household member to be considered and

2. 30,000 euros for each additional household member to be taken into account.

(2) Assets within the meaning of § 21 No. 3 WoGG are the totality of the goods of all household members to be taken into account, measurable in money. Income and assets are fundamentally differentiated from each other in that income is everything that someone receives in terms of value in the period of need (i.e. the time when benefits are drawn), and assets are what they already have in the approval period (see Federal Administrative Court, judgment of 18 February 1999 - 5 C 35.97 -, juris, paragraph 14).

(3) Assets within the meaning of § 21 No. 3 WoGG only include realizable assets with their market value. Assets can be used if they are used for livelihood or if their monetary value can be made usable for livelihood, in particular through sale, consumption, transfer, loan, renting or leasing. Assets over which the owner z. B. cannot freely dispose of it due to bankruptcy, seizure or pledging. If an asset is only partially usable, only this part is to be considered as an asset. In principle, the following cannot be used:

1. Entitlements to company pension schemes in accordance with the Company Pension Act (Sections 2 and 3 BetrAVG), regardless of the chosen implementation method (direct commitment, relief fund, direct insurance, pension fund or pension fund) and regardless of whether the company pension scheme was financed by the employer or through deferred compensation ;
2. Entitlement to a personal life annuity (so-called Rürup pension), which according to Section 10 (1) No. 2b EStG is not inheritable, non-transferable, non-lendable, non-salable and non-capitalisable, and for which there is no further entitlement to payment consists.

(4) Assets within the meaning of Section 21 No. 3 WoGG include:

1. Money and monetary values, e.g. B. Cash (legal tender) and checks,
2. Movable items, e.g. B. jewelry, paintings and furniture,
3. immovable property, e.g. B. developed and undeveloped land,
4. Monetary claims, e.g. B. Claims for loan repayment,
5. other rights, e.g. B. Rights from bills of exchange, shares and other company shares, rights from home ownership, rights from land charges, usufruct, easements, retirement, including copyrights, insofar as the use is a property that can be valued in money.

(5) Assets within the meaning of Section 21 No. 3 WoGG do not include:

1. the property, the heritable building right, the property-like permanent housing right, the housing right and the usufruct in each case with regard to the self-used living space for which housing benefit is requested,
2. The right to order or transfer the rights mentioned in number 1
with regard to the self-used living space for which housing benefit is requested,
3. Assets that are provided from public funds to build up or secure a livelihood or to set up a household,
4. Retirement provision in the amount of the assets expressly promoted as retirement provision under federal law, including its income and the promoted current retirement provision contributions, insofar as the holder does not use the retirement pension assets prematurely,
5. Pecuniary claims that serve to provide for old age if the owner cannot utilize them prior to retirement due to a contractual agreement and the value of the pecuniary claims is 500 euros per completed year of life of the employable household members to be taken into account, but no more than each 30,000 euros, not exceeding
6. Appropriate household items,
7. an appropriate motor vehicle for each adult household member to be taken into account,
8. Items that
a) are indispensable for vocational training or employment or
b) the satisfaction of intellectual, especially scientific or artistic
Serving needs and having them is not a luxury.

If a housing benefit application is rejected because of considerable assets, the housing benefit authorities can individually identify the assets for each household member to be considered in the rejection notice. If the assets are to be allocated to several household members jointly, it can be stated to which part the assets are allocated to the respective household member (e.g. if two people co-own an object without a deviating agreement or statutory provision, half each).