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Verdict: Child benefit even for late-onset hereditary disabilities


If children of legal age become disabled due to a genetic defect, the parents can receive child benefit on a permanent basis. This also applies if the disability is only determined after the child's 25th birthday, as the Finanzgericht (FG) Cologne ruled in a recently published judgment of January 12, 2017 (Az .: 6 K 889/15). The dispute is already pending at the Federal Finance Court (BFH) in Munich.

Child benefit is normally paid until the child's 18th birthday, then until their 25th birthday, as long as the child is still in training. Parents of children with disabilities can still receive child benefit afterwards, in fact for life, if and as long as the child cannot "make a living" because of his disability. The prerequisite is that the disability occurred before the age limit of 25 years today.

In the case that has now been decided, the daughter, born in 1968, suffers from an inherited muscle disease, which leads to a slowly progressive decrease in muscle strength with partial stiffening of the muscles (myotonic dystrophy Curschmann-Steinert). The daughter is a trained office clerk and initially made a living herself. The genetic defect was only discovered at the age of 30. Ten years later she was 100 percent disabled. Since the age of 43, she has been drawing a pension for full disability.

The family fund rejected the father's application for child benefit. Because the disease only occurred after reaching the age limit (then 27, now 25 years).

The FG Cologne now upheld the father's lawsuit. According to the case law of the BFH, a person is disabled "if their physical function, mental ability or mental health deviates more than six months from the condition typical for their age and therefore their participation in life in society is impaired".

That is the case here. The important thing is “the objective finding of the hereditary disease and not its knowledge”. Here the daughter's illness "is undisputed since her birth, because it is a congenital genetic defect".

The fact that only mild symptoms appeared before the age limit did not conflict with the father's entitlement to child benefit. Because the law does not require that the inability to make a living must have existed before reaching the age limit.

Because of its fundamental importance, the FG has approved the BFH revision. The family fund has already inserted this (Az .: BFH: XI R 8/17). mwo / fle

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