Judgment child benefit even with late occurring hereditary disability

In the case of children of legal age who have a disability due to a genetic defect, the parents can permanently receive child benefit. This also applies if the disability is determined only after the 25th birthday of the child, as the Financial Court (FG) Cologne in a recent judgment of January 12, 2017 decided (Az .: 6 K 889/15). The dispute is already pending at the Federal Finance Court (BFH) in Munich.

Child benefit is paid regularly up to the 18th birthday, then until the 25th birthday, as long as the child is still in education. Parents of children with disabilities can still receive child benefit even after that, if and for as long as the child can not provide for his own livelihood "because of his or her disability". The condition is that the disability occurred even before reaching the age limit of today 25 years.

Judgment on the receipt of child benefit. Image: Waldbach-Fotolia

In the now decided case, the daughter, born in 1968, suffers from hereditary 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 earned her own living. It was not until the age of 30 that the genetic defect was discovered. Ten years later, she was already 100 percent severely disabled. Since the age of 43, she has been receiving a pension for total loss of earning capacity.

The child benefit claim of the father was rejected by the family fund. Because the illness occurred only after reaching the age limit (at that time 27, today 25 years).

The FG Cologne gave now the complaint of the father instead. According to the case-law of the BFH, a person is handicapped "if his physical function, mental ability or mental health are likely to deviate from the age-typical condition for more than six months and his participation in life in society is therefore impaired".

That's the case here. It depends "on the objective finding of genetic disease and not on its knowledge". Here the disease of the daughter "indisputably since birth, because it is a congenital genetic defect".

The fact that only lighter symptoms had occurred before reaching the age limit did not preclude the father's entitlement to child benefit. For the fact that even the inability to make a living itself must have existed before reaching the age limit does not require the law.

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