Social Welfare Offices Misinterpreting Laws: Interview with Lawyer Markus Karpinski

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Lawyer Markus Karpinski explains the legal situation regarding the need for care and social support. As a result, a spouse may not be placed on the citizen’s allowance rate. This would create an incentive for separation and therefore a violation of the constitutional protection of marriage and family according to Article 6 of the Basic Law.

Social welfare offices often operate incorrectly

According to Karpinski, social welfare offices often work incorrectly and use the spouse’s income as well as assets. They did this because they misinterpreted Section 19 Paragraph 2 of SGB XII.

This assumes that spouses support each other, but not as a requirement, and this assumption can be rejected, as the Federal Social Court and the Federal Court of Justice have confirmed.

Karpinski explains that case law would have confirmed that the spouse should not be asked to provide more support than he is obligated to provide under the maintenance law.

The social benefits office must leave the spouse more than the social assistance rate if a person in need of care is receiving social assistance. The spouse must regularly be allowed to keep half of the net income.

In practice, according to Karpinski, social welfare offices would not adhere to this and would only give a little more than a SGB II beneficiary to the spouse.

Violation of the special protection of marriage and family

However, according to Karpinski, this should not happen because it would create an incentive for separation and therefore a violation of the special protection of marriage and family in Article 6 of the Basic Law.

Why are social services wrong?

According to Karpinski, the social welfare offices work according to the motto of Section 19, Paragraph 2 of the Social Code XII and consider themselves entitled to calculate as much of the spouse’s income as they do not have but the minimum income.

However, the Federal Social Court made it clear that in that paragraph there was only the assumption that spouses were willing to use their income and assets for each other up to the level of their own need for social support. However, legal presumption can be rejected.

What can those affected do?

In order not to be forced to need social assistance, it is enough for spouses, says Karpinski, to make it clear when they apply that they will only pay so much of their income they would have to pay if they separated.

This goes against the legal opinion that the social welfare offices refer to.

What is the legal basis?

Karpinski cites judgments on which he bases his legal opinion. That’s how it was decided
Federal Social Court 2012 (Az. B 8 SO 13/11 R). The Federal Social Court said that the legislature “generally assumes” that spouses support each other up to the extent of their own need for social support. According to Karpinski, this is by measure.

In 2010, the BSG emphasized that it is (just) making a presumption (see B 14 AS 51/09 R). According to BSG at the time, this was not a legal obligation.

The Federal Court of Justice decided in 2016 that the spouse only had to pay maintenance in the amount of separation maintenance. (Az. XII ZB 485/14) According to BGH, this is also justified under social and constitutional law.

If it were the other way around, this would be a benefit for the spouses who separated from their partner when the person in need of care was taken home. However, such a privilege would conflict with the special protection of marriage and family under Article 6 of the Basic Law.

Dr. Utz Anhalt is an author, journalist and historian. In 2000 he completed a Magister Artium (MA) in history and politics at the University of Hanover. It focuses on social law, social policy and natural sciences. He was a research assistant on documentaries for ZDF, History Channel, Pro7, NTV, MTV, Sat1.