Münster Social Court, 10 February 2012, Ref.: S 6 P 135/10
The granting of benefits from the long-term care insurance fund is based on the categorisation in one of the three care levels. The care level is determined by the Medical Service of the Health Insurance Fund (MDK).
The classification into care levels is regulated by law in § 15 SGB XI:
According to § 15 Para. 1 SGB XI, persons in need of care must be assigned to one of the following three care levels:
1. care recipients of the Care level I (people in need of considerable care) are people who require help with personal hygiene, nutrition or mobility for at least two tasks from one or more areas at least once a day and who also require help with household chores several times a week.
2. care recipients of the Care level II (Persons in need of heavy care) are persons who require assistance with personal hygiene, nutrition or mobility at least three times a day at different times of the day and who also require assistance with housekeeping several times a week.
3. care recipients of the Care level III (people in need of the most severe care) are people who require help with personal hygiene, nutrition or mobility around the clock every day, including at night, and who also need help with housekeeping several times a week.
According to § 15 Para. 3 SGB XI, the time required by a family member or another carer who is not trained as a carer for the necessary basic care and domestic care services must be an average of
1. in the Care level I at least 90 minutes; more than 45 minutes must be spent on basic care,
2. in the Care level II at least three hours (180 minutes); at least two hours (120 minutes) must be spent on basic care,
3. in the Care level III at least five hours (300 minutes); at least four hours (240 minutes) must be spent on basic care.
In the above-mentioned decision of the Social Court of Münster, the court had to decide whether the defendant care insurance fund had to grant the insured plaintiff benefits according to care level III, although the basic care requirement determined was only 234 minutes.
Facts of the Case
The plaintiff, born in 1947 and insured with the defendant long-term care insurance fund, suffered a stroke in October 2002, which resulted in a mild spastic hemiparesis with an inability to use his left arm.
He was able to walk with assistance. The most serious consequence of insulin-dependent diabetes mellitus was that the plaintiff went blind a few years ago. In addition to other illnesses, he suffered from cognitive disorders and a depressive syndrome.
A degree of disability (GdB) of 100 was determined in accordance with the law on severe disabilities. The marks "Bl.", "G", "B" and "RF" were recognised. The plaintiff was mainly cared for by his wife.
Since March 2003, the plaintiff had been receiving care allowance according to care level II. The basis for this approval was the expert opinion of the social medical service (SMD) of the defendant care insurance fund dated 4 April 2003, in which a basic care requirement of 137 minutes was determined.
The defendant care insurance fund had rejected an application for upgrading in October 2003 after calculating a basic care requirement of 218 minutes.
In a repeat assessment by the SMD on 21 August 2009 commissioned by the defendant, an expert estimated the need for assistance in the area of basic care at 211 minutes.
On 7 January 2010, the plaintiff submitted a new application for upgrading, in which a basic care requirement of 216 minutes was assumed.
The plaintiff lodged an appeal against the subsequent rejection notice, submitting a care diary. This measure was also unsuccessful.
Münster Social Court:
The court first took evidence by obtaining a medical expert's report. The expert came to the conclusion that the daily need for assistance in the area of basic care should be estimated at 232 minutes.
The court then ruled in favour of the plaintiff, as the court was of the opinion that the plaintiff had been inadmissibly adversely affected by the rejection notices.
In the case of the plaintiff, a material change within the meaning of Section 48 para. 1 sentence 1 SGB X had occurred.
According to this provision, a permanent administrative act (i.e. in this case the administrative act that resulted in the granting of funds according to care level II) is to be cancelled with effect for the future if a significant change has occurred in the factual or legal circumstances that existed when it was issued.
In comparison to the situation in 2003, when the plaintiff was first granted care level II benefits, his complete blindness in the meantime had led to such a considerable increase in the need for care that the statutory requirements for the most severe need for care were now met.
According to Section 15 Paragraph 1 Sentence 1 No. 3 of the German Social Code - Eleventh Book - (SGB XI), those in need of the most severe care (care level III) are persons who require assistance with personal hygiene, nutrition or mobility around the clock every day, including at night, and who also require help with household chores several times a week.
According to the results of the taking of evidence, these conditions were met in the plaintiff's case. This was also not in dispute between the plaintiff and the defendant care insurance fund.
The only controversial issue is whether the minimum amount of time required for care as set out in Section 15 Paragraph 3 Sentence 1 No. 3 SGB XI is also met.
According to this provision, the time required by a family member or another carer who is not trained as a carer for the necessary basic care and domestic care services must be at least five hours per week, i.e. 240 minutes, on a daily average in care level III. At least four hours must be spent on basic care.
It is true that the defendant correctly points out that the basic care requirement of 232 minutes determined by the expert falls short of the minimum requirement of 240 minutes by 8 minutes.
Nevertheless, the Chamber is convinced that the statutory requirement of at least four hours of daily basic care is fulfilled in the case of the plaintiff.
The Chamber had subjected the expert opinion of the experienced forensic expert to a critical review.
It had seen no reason to deviate from the estimates of the time required for the individual tasks.
In the opinion of the court, however, in the case of the plaintiff, the assumption of a need for severe care was already justified with the basic care requirement of 232 minutes determined by the expert.
Falling short of the time interface by a few minutes could not prevent care level III from being awarded.
The conviction of the Chamber follows from an interpretation that takes into account the wording of the law, the observance of the rules of interpretation of Section 2 (2) of the Social Code - First Book - (SGB I), an interpretation in conformity with the constitution that takes into account the principle of equality of Article 3 of the Basic Law (GG) and a consideration of the inadequacies of the current statutory definition of the need for long-term care.
The provision of § 15 Para. 2 Sentence 1 SGB XI formulates the time entry points for the respective care levels differently.
Care level I requires basic care assistance of "more than 45 minutes", while for care levels II and III it is sufficient if "at least two" or "at least four hours" are spent on basic care.
From these different formulations of the law alone, it can be deduced that the threshold for the higher care levels is not as strict as for care level I.
However, the general rule of interpretation of § 2 Para. 2 SGB I also argues in favour of the claimant's entitlement to benefits not failing for just a few minutes.
According to this provision, when interpreting the provisions of the SGB, it must be ensured that social rights are realised as far as possible.
Furthermore, the Chamber relied on the interpretation criterion of constitutional conformity.
It is difficult to reconcile with the principle of equality of the Basic Law and the concept of justice if, because the minimum time required is not met by just a few minutes, the significantly higher benefits of care level III compared to care level II cannot be claimed.
This is because it should be noted that, according to the Chamber's experience, the minimum time requirement is only exceeded by a few minutes in most cases for recipients of care level III benefits due to the particularly strict eligibility requirements.
In this context, the enormous time span of 120 minutes, which separates the entry thresholds of care levels II and III according to the statutory regulation, should not be disregarded.
However, the decisive consideration for the Chamber was ultimately that the result found by the expert of a basic care requirement of 232 minutes was essentially only an apparent rational value.
If the expenditure eligible for consideration under the law could be precisely measured chronometrically, the failure of an entitlement to benefits due to a very slight undercutting of a time interface could possibly be justified.
However, the current statutory definition of the need for long-term care and the assessment factor of time associated with it are not reliably comprehensible and rational criteria.
First of all, it should be noted that the needs-based nature of the classification system is seriously called into question due to the - unjustified - restriction to the statutory catalogue of tasks and the fact that treatment care and the need for supervision and care are not taken into account.
In addition, the determination of the duration of the care measures that can be taken into account presents very serious difficulties.
Taking into account the individual care situation, the individual living habits of the person in need of care and the different forms of assistance (guidance, supervision, partial takeover, etc.), the time required for the catalogue tasks should be measured according to a fictitious, objective standard. This cannot be achieved with a stopwatch.
For many years, nursing science and nursing practice have unanimously called for a reform of the statutory definition of the need for long-term care. For example, the report published by the Federal Ministry of Health on 26 January 2009 by the advisory board for the review of the concept of the need for long-term care aptly states that "the time factor has become a term that disavows the entire long-term care insurance system" (p. 45 of the report).
In its ruling of 7 July 2005 (case reference: B 3 P 8/04 R) in a dispute concerning the withdrawal of long-term care insurance benefits, the Federal Social Court stated that an estimate of the need for long-term care as part of a review of benefits, which showed that the need for long-term care was only a few minutes lower than required, was generally not a sufficient reason for the long-term care insurance fund to reduce or discontinue benefits. This is simply because the uncertainty of the estimate does not allow a reliable determination that the required care needs of the respective care level no longer exist.
Furthermore, the BSG took the view that it is not legally objectionable if the assessor and carer apply a generous standard in borderline cases and do not allow the entitlement to benefits to fail for just a few minutes.
The Chamber agrees with this case law. Furthermore, it is convinced that due to the considerable uncertainty of the estimate, a generous standard in borderline cases is not only not objectionable, but that in the case of an estimate by a court expert, according to which the threshold for care level III is missed by only a few minutes, it may be necessary to make a correction to the estimate.
In the case of the plaintiff, the court expert determined a total time expenditure of 232 minutes by estimating the time required for numerous basic care tasks.
The Chamber sees no reason and no possibility to deviate from the respective assessments.
As part of its free assessment of the evidence (§ 128 Para. 1 SGG), however, it came to the summarised assessment that this amount of time would already fulfil the legal requirements for a four-hour basic care session and that the claimant was entitled to benefits due to a need for severe care.
Source: Social Court Münster
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