Consideration of a hypothetical family law maintenance contribution for spouses living separately with their own supplementary benefit claim

Facts

M., born in 1925, has been living separately from his wife B. since 1994. In June 1998, he applied for supplementary benefits to the old-age pension. The supplementary benefits office of the Canton of Thurgau credited him with a hypothetical family law maintenance contribution of 3,135 Swiss francs, as his income exceeded the subsistence needs of his wife. M. appealed against this consideration.

The AHV/IV Appeals Commission of the Canton of Thurgau partially upheld the appeal and referred the matter back for recalculation without consideration of the hypothetical maintenance contribution. The Federal Social Insurance Office then filed an administrative court appeal with the aim of ordering the consideration of the maintenance contribution.

Considerations

The Federal Supreme Court examined whether the consideration of the hypothetical maintenance contribution in accordance with Art. 1 para. 3 of the Ordinance on Supplementary Benefits to the Old-Age, Survivors' and Disability Insurance (ELV) is lawful.

It concluded that this provision of the Ordinance exceeds the framework of the Supplementary Benefits Act (ELG). While the Act authorizes the Federal Council to…