Düsseldorf Higher Regional Court, 29 October 2013, Ref.: I-21 U 23/13, 21 U 23/13
The day care rate in most retirement and nursing homes is based on the amount of care required by the nursing staff for the person being cared for.
As monthly costs of several thousand euros can be incurred in most cases, the vast majority of people are forced to use all of their assets and income to cover the costs of the care home.
A further portion is covered by long-term care insurance. The share of the care insurance depends on the care level awarded to the person requiring care.
For nursing home costs that are not covered by income and/or assets or nursing care insurance (uncovered nursing home costs), social assistance can be applied for from the responsible social welfare organisation.
In order to receive these benefits, the need for residential care must have been established. It should be noted that the possible need for social assistance must be reported immediately to the responsible social assistance provider, as retroactive authorisation is not possible.
In the vast majority of cases, an informal application is sufficient to ensure that the application is submitted on time. The official application should then be submitted as soon as possible.
The official application must include all information on the income and assets of the person requiring care.
Failure to do so can lead to problems with the granting of social assistance. In the Düsseldorf Higher Regional Court case mentioned above, the court had to decide on a claim by a care home for care costs in arrears, which had accrued indirectly due to inadequate information when the application was submitted.
Facts of the Case:
The parties are in dispute over the payment of housing and care costs
On 16 January 2009, the parties concluded a housing and care contract, which was supplemented by a further contract dated 26 July 2010. The subject of the contract was the rental of a room and the care of the defendant, who was born on 8 September 1977.
The fee to be paid by the defendant was initially € 78.03 per day, later € 82.86 per day. In accordance with § 5 of the contracts, it was due for payment in advance on the third working day of each month.
Carer and manager had jointly filled out an application for social assistance incorrectly
On 6 January 2009 - i.e. before the defendant was admitted - the defendant's carer had filled out an application for social assistance together with the manager of the care facility.
When stating their assets, the two stated an amount of € 2,400.00 as a bank/savings account balance. However, the defendant actually had assets of around € 6,000.00.
Social insurance had refused to cover costs due to the defendant's assets
In a decision dated 17 March 2010, the social insurance provider refused to cover the costs, as the defendant currently had assets above the minimum asset limit; according to the argumentation of the cost bearer, this would also stand in the way of the need under social law to be re-examined for each month if it had not been sufficient to cover the costs for the entire period in question, as fictitious consumption would not be considered.
The defendant initially did not make any payments. In a letter dated 18 March 2010, the plaintiff requested the defendant to pay the housing and care costs accrued up to that date totalling € 33,586.28 and announced that it would issue an invoice at the end of each month in future. The defendant then made a payment totalling € 6,482.44.
A payment arrears of EUR 89,152.21 had accumulated at the time of cancellation of the care contract
On 3 November 2011, the plaintiff declared the termination of the care contract. At this time, the defendant was in arrears with payments totalling € 89,152.21.
Two legal disputes were conducted between the defendant and the social insurance institution before the Social Court. The first legal dispute concerned the social insurance institution's obligation to bear the costs of the defendant's institutionalisation
The subject of the second legal dispute was the legal position of the defendant as a member of a community of heirs, on the basis of which she has a 1/8 co-ownership share in a residential property. In April 2012, the social insurance institution concluded a settlement with the defendant to settle both legal disputes, according to which the social insurance institution assumed the defendant's home costs by way of a loan with retroactive effect from 1 April 2010, whereby the amount of the loan was limited to the market value of the defendant's inheritance share in the property.
The plaintiff is now claiming payment of the arrears accrued up to 31 March 2010 in the amount of € 29,726.65.
She claimed that the refusal to grant benefits by the social insurance agency was due to the lack of co-operation by the defendant's carer. The incorrect counselling alleged by the latter when completing the application for social assistance had not taken place.
Defendant declared offsetting due to incorrect counselling by the home
The defendant has declared a set-off with a claim for damages due to incorrect advice when completing the application for social assistance. She argued that the head of the home had advised her to hold on to the assets totalling € 6,482.44 and not to pay the plaintiff's claims until she received an invoice.
The Regional Court, which was initially seised, upheld the action and stated that the plaintiff's claim for payment in the amount of € 29,726.65 was not extinguished by the defendant's offsetting against a claim for damages, as there was no pre-contractual breach of duty.
The defendant has appealed against this decision to the Düsseldorf Higher Regional Court.
Judgment of the Higher Regional Court of Düsseldorf
The Düsseldorf Higher Regional Court did not agree with the defendant's view and ruled that the Regional Court had rightly determined that the plaintiff was entitled to a residual payment claim against the defendant in the amount of € 29,726.65, which was not extinguished by the offsetting declared by the defendant with a claim for damages due to incorrect advice.
Court rules that the care home had sufficiently fulfilled its duty to provide counselling
The contract concluded between the parties was a service contract within the meaning of Section 611 BGB. In connection with the conclusion of this contract, the plaintiff was obliged to inform the defendant of the possibility of applying to the social insurance institution for the assumption of costs.
However, it had fulfilled this obligation and - as the Regional Court had rightly found - had correctly pointed out the limit of the protected assets and the fact that the assumption of costs would not be granted if the assets exceeded this limit.
The home had not provided insufficient information
In contrast, the plaintiff was not obliged to provide further advice. A breach of duty giving rise to liability could only be considered if she had provided the defendant or her counsellor with incorrect information.
Source: Higher Regional Court of Düsseldorf
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