The birth of a child must be taken into account in the delayed change of studies

22. September 2023

Student M becomes a mother for the first time shortly after graduating from high school. A year later, she begins studying in the winter semester of 2014. Your child is 10 months old at this time. After 4 semesters of her bachelor’s degree, she is transferring to another degree program in the 2016 winter semester that is a better fit. M reports the change of studies to the tax office and continues to receive the family allowance. M cannot have ECTS credits from the previous study program credited in the new study program. M completes her degree in minimum study time of 6 semesters and successfully works in her industry soon after graduation.

In the spring of 2019, shortly before the completion of her current studies, Ms. Mutter receives a notice of recovery from the tax office. In this letter, the family allowance for all 4 paid semesters of the 2nd study program in the amount of more than € 5,500 is reclaimed because M had changed her study program too late.

The family turns to the social counseling service of the Austrian Student Union (ÖH) for help. With the support of the ÖH, an appeal is filed against the notice of recovery. The preliminary appeal decision is also negative. The tax office further states that M’s child was not born during her studies, but before her studies began, which is why there is no inhibition of the study period. Therefore, there was a delayed change of study after the 4th semester. The ÖH assists in the preparation of the submission application to the Federal Fiscal Court (BFG). The court also dismisses at the end of 2019 on the same grounds.

M and ÖH are convinced that the time when a child is born should not make a difference for the extension of the entitlement period in the family allowance. The ÖH assumes the representation and procedural costs for proceedings before the highest court. An appeal will be filed with the Administrative Court (VwGH) in early 2020.

The Family Burden Equalization Act (Familienlastenausgleichgesetz, FLAG) provides for the extension of the study period due to an unforeseen or unavoidable event (e.g. illness). In this case, a study disability of three months at a time causes an extension of one semester. Periods of maternity leave as well as the care and upbringing of one’s own child until the child reaches the age of 2 shall in any case suspend the expiry of the period of study and thus the period of entitlement to family allowance.

Changes of study must be made after the 2nd semester at the latest, otherwise there will be a waiting period. Late transfers are no longer to be considered if students have studied as many semesters in the new program as they studied in the program they transferred to late. Credits from previous studies shorten the standing time.

After about 2 ½ years of proceedings, the VwGH decides in favor of Student M (VwGH dated June 29, 2022, Ra 2020/16/0054-6). The Supreme Court states that if the period of study is suspended (continuation suspension) due to the birth of a child, the semesters in the suspension period are not to be taken into account when assessing the timeliness of the change of studies. This takes into account the fact that, due to the time demands on parents as a result of caring for and raising a child in the first years of its life, the planned period of study (and the associated need to provide corresponding certificates of achievement) cannot be adhered to. Accordingly, this period should not have a negative impact on family allowance entitlement. Differentiating according to whether the child was born before or after the start of vocational training does not meet the objective of the provision. Therefore, in the present case, the change of study was timely, regardless of whether the birth was before or after the start of the study.

Note that semesters in which there is an extension of the study period due to an unforeseen or unavoidable event are also not to be counted when changing studies (VwGH of 27.09.2012, 2010/16/0084).

Won by the ÖH: Through the efforts of the ÖH, an important legal issue for students with children was clarified, which has significance beyond the individual case.

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