The less favourable treatment of beneficiaries of a subsidiary protection in respect of family benefits The AOB addressed the issue of less favourable treatment of beneficiaries of a subsidiary protection, the temporary obligation to provide benefits under provisions of EU law, as well as with the problem of so-called “posthumously born children” and unobjective limitations of benefits. Less favourable treatment of beneficiaries of a subsidiary protection The AOB pointed out the less favourable treatment of beneficiaries of a subsidiary protection in comparison to persons eligible for asylum; most recently in the Annual Report 2011. Beneficiaries of a subsidiary protection receive family benefits only if they are gainfully employed and are not receiving the basic level of social services (Section 3 (4) of the Family Allowance Act 1967, Section 2 (1) (5) (c) of the Child Care Benefit Act). “Family review” is unlawful In the reporting year, the AOB criticised the so-called “family review” that is applied in everyday practice when the family receives basic level of social services: Even if the applicant or the child is not receiving the basic level of social services, but another family member is, payment of a family allowance is rejected. This contradicts the wording of Section 3 (4) of the Family Allowance Act 1967 and is unlawful (Independent Financial Tribunal 12.4.2010, RV/3463-W/09). Notional entitlement is not sufficient The AOB also spoke out against an administrative practice, according to which the mere entitlement to the basic level of social services excludes payment of a family allowance. According to the clear wording of Section 3 (4) of the Family Allowance Act 1967, only the actual receipt of the basic level of social services is the decisive factor. It cannot be based on a notional entitlement, which does not result in an actual receipt of the basic level of social services (thus also ruled by the Independent Financial Tribunal 4.3.2010, RV/0490-I/09 among other rulings). Assistance from the minimum benefit system is not grounds for exclusion Finally, the AOB again expressed to the Federal Ministry of Economy, Family and Youth that benefits provided by the needs-based minimum benefit system must not be considered similar benefits. In accordance with the current legal situation, only receipt of the basic level of social services can exclude payment of a family allowance; from the AOB’s perspective, an extension to the minimum benefit system must be rejected. 78