1. Benefits for accommodation and heating are provided in the amount of the actual expenses, insofar as they are reasonable. Since the question of reasonableness must be answered according to uniform criteria for tenants and owners, for reasons of legal certainty and practicality, the values applicable to those eligible for social housing should also be used for owners within the framework of the product theory for determining apartment size until further notice. If this recourse is made to state-level standards, it is impermissible to use outdated values that were applicable before the Social Code, Book II (SGB II) came into force. Using administrative regulations other than those in effect during the benefit period to determine living space is only justifiable if no current administrative regulations exist for Section 10 of the Housing Promotion Act (WoFG).
2. According to Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), heating costs are generally to be reimbursed in the amount of the actual expenses. The defendant, however, has calculated heating costs as a lump sum based on the size of the apartment. However, there is currently no legal basis for a general lump sum calculation of heating costs due to the lack of a corresponding regulation pursuant to Section 27 No. 1 SGB II. Heating costs are only not reimbursable in the amount of the actual expenses if they appear unnecessary in terms of their amount when heating is done properly and economically. This requires a specific examination in each individual case. Exceeding the upper limits of a local heating cost index, or, if such an index does not exist, the nationwide heating cost index, can only be considered an indication of the lack of necessity. The specific examination, which must be carried out in every case, must also take into account individual circumstances – such as the climatic conditions of the place of residence.
In cases where monetary benefits are sought for past periods in the EA procedure, there is usually no ground for an order.
The period covered by the preliminary injunction generally extends from the date the application for interim relief is received by the court until, at the latest, a final and binding decision is reached in the main proceedings. The factual basis for the commencement of the preliminary payment, as defined in Section 86b Paragraph 2 Sentence 2 of the Social Court Act (SGG), derives from the element of "averting" a substantial disadvantage. The decisive factor is generally the time of receipt of the application for interim relief by the court (see Senate decision of 19 February 2008, L 8 B 499/07 B ER; Higher Social Court Berlin-Brandenburg of 10 January 2007, L 28 B 53/07 AS ER; Higher Social Court North Rhine-Westphalia of 8 September 2006, L 20 B 105/06 SO ER juris para. 13; Higher Social Court Berlin-Brandenburg of 5 April 2006, L 23 B 19/06 SO ER; Higher Social Court Hesse of 24 April 2006, L 9 AS 39/06 ER; of 20 June 2005, L 7 AL 100/05 ER; Higher Social Court Hesse Breithaupt 2006, 56, 63; Higher Social Court Saxony of 19 September 2005, L 3 B 155/05 AS-ER; LSG Baden-Württemberg of 17 August 2005, L 7 SO 2117/05 ER-B; LSG Bavaria of 14 June 2005, L 11 B 206/05 SO ER, Breithaupt 2005, 774, 775; LSG Lower Saxony-Bremen of 28 April 2005, L 8 AS 57/05 ER, FEVS 2005, 503, 508; LSG Hamburg of 2 March 2005, L 3 B 43/05 ER SO). With regard to past infringements of rights in this sense, an order for performance is therefore generally excluded (Hamburg Higher Social Court, judgment of March 2, 2005, L 3 B 43/05 ER SO; Bavaria Higher Social Court, judgment of June 14, 2005, L 11 B 206/05 SO ER, Breithaupt 2005, 774, 775; Saxony Higher Social Court, judgment of September 19, 2005, L 3 B 155/05 AS-ER, LS 4; Bavaria Higher Social Court, judgments of April 7, 2005, L 11 B 117/05 SO ER, Breithaupt 2005, 779 and of June 14, 2005, L 11 B 218/05 AS ER, Breithaupt 2005, 786; Hesse Higher Social Court, judgment of October 26, 2005, L 7 AS 65/05 ER; LSG Berlin-Brandenburg of June 7, 2007, L 28 B 743/07 AS ER juris para. 9: no grounds for an order for a period that has already expired). An exception to this principle is found in cases where there is a so-called need to catch up. A need to catch up exists if, in the case of non-retroactive benefit payments, i.e., if past benefits are not "catch up," significant legal violations are threatened for the future (cf. LSG Hesse of June 20, 2005, L 7 AL 100/05 ER; LSG Baden-Württemberg of October 13, 2005, L 7 SO 3804/05 ER-B; LSG Berlin-Brandenburg of April 5, 2006, L 23 B 19/06 SO ER).
Bavarian State Social Court decision of 21 December 2009 – L 7 AS 831/09 B ER
The scrappage bonus is considered income – unless it is demonstrably used for the intended purpose of financing the purchase of a new car
Starting point
The scrappage scheme introduced in 2009 targeted cars in the low value range due to their age. For affected recipients of Hartz IV benefits, the responsible job centers considered the environmental bonus as income to be counted and reduced their benefits. Many Hartz IV recipients challenged this in the social courts. Several rulings have since been issued on this matter, but a consistent line of jurisprudence has not yet emerged.
The decision
The Bavarian State Social Court has clarified that the premium is generally considered income. However, as an exception to this principle, scrappage premiums demonstrably used for their intended purpose can remain exempt from being counted as income. This includes, for example, premiums used to finance a new car and paid directly to the car dealership due to an assignment of the claim. Furthermore, the preliminary injunction must be granted in favor of the Hartz IV recipient because otherwise she could be unable to support herself, lose her apartment due to rent arrears, and suffer unreasonable losses in the event of a forced sale of her car.
Impact of the decision
The reasoning behind the decision suggests that the Bavarian State Social Court will likely decide the main proceedings in favor of the affected parties – provided that the appropriate use of the environmental bonus can actually be proven.
Bavarian State Social Court decision of 21 December 2009 – L 7 AS 831/09 B ER
If storage costs, the assumption of which would generally be considered, cannot even be roughly estimated due to the unforeseeable end of the detention period, there is no obligation to assume these costs. In this respect, the situation is comparable to that of a request for the assumption of accommodation costs to secure housing.
The fact that the plaintiff's reliance on a violation of the principle of equality or his human dignity is not sufficiently substantiated is also insufficient to establish a legitimate interest in a declaratory judgment in the sense of a so-called "rehabilitation interest." A merely idealistic interest in the final clarification of the legality or illegality of a completed administrative action is not enough, regardless of whether adverse repercussions of this action persist that could be effectively addressed by a judicial decision on the merits. Rather, a legitimate need for protection against such repercussions must exist in the individual case (cf., e.g., Federal Administrative Court, Judgment of March 19, 1992, 5 C 44/87). Upon reasonable consideration, no such legitimate interest on the part of the plaintiff is apparent. Furthermore, although this is not of decisive importance given the inadmissibility of the declaratory judgment action, the Senate shares the Social Court's view that there was no claim against the defendant for the storage of the furniture and any other items from his mother's estate. The Senate first points out that a possible claim against the prison authorities pursuant to Sections 71 et seq., 83 of the Prison Act and the applicability of the principle of subsidiarity are not to be decided in this case (cf. Higher Administrative Court of Lower Saxony, decision of December 4, 2000, 4 M 3681/00 = FEVS 52, 274; but also Administrative Court of Frankfurt, decision of March 17, 1986, 2 G 533/86 regarding the relationship between assistance under the Federal Social Assistance Act and the Prison Act). The Senate is also convinced that it is unnecessary to determine on which legal basis a claim for the storage of the furniture would be founded. In addition to Section 34 Paragraph 1 of the German Social Code, Book XII (SGB XII) (regarding the parallel issue under the Federal Social Assistance Act (BSHG): see Higher Administrative Court of Lower Saxony, decision of December 4, 2000, loc. cit.; Berlit, NDV 2006, p. 27), direct recourse to Sections 29 SGB XII and 22 SGB II is also possible, provided that the storage of household items is directly attributed to accommodation costs (see Bavarian Higher Administrative Court, decision of May 14, 2005, 12 C 04.296 = FEVS 55,509). Furthermore, as assumed by the Social Court, a claim under Sections 67 et seq. SGB XII in conjunction with Section 1 Paragraph 2 and Section 4 of the "Ordinance on the Implementation of Assistance to Overcome Special Social Difficulties" should be considered.
Note: See also Bavarian State Social Court L 18 SO 111/09 B ER 17.09.2009, decision
Quote from the 2009 guide to unemployment benefit II: The legal guide to the German Social Code, Book II (paperback)
Not merely debt reduction
If the tenancy has already been terminated, so that the rent payment only serves to prevent debts to the landlord, assistance is not possible under either Section 67 of the German Social Code, Book XII (SGB XII) or Section 22 of the German Social Code, Book II (SGB II) (Social Court Oldenburg, July 27, 2005 – S 2 SO 127/05 ER).
Looking for a new apartment?
The exclusion of benefits for short-term detention, especially pre-trial detention, is problematic for the members of the benefit unit (BG) that continues to exist despite the detention. If the SGB II agency only covers the accommodation costs after deducting the detainee's share, rent arrears can accrue unless the SGB XII agency covers the deducted portion of the rent. In our opinion, if the expected length of detention is short, the SGB XII agency cannot demand the use of assets protected under Section 12 of the SGB II, but not under Section 90 of the SGB XII. Above all, the agency must not delay the review of a partial assumption of accommodation costs on the grounds that the SGB II provider can cover rent arrears upon re-establishment of responsibility under Section 22 Paragraph 5 of the SGB II. In case of dispute, the benefit provider first contacted must provide assistance (Section 43 of the SGB I). If the end of the detention is not foreseeable or if the incarceration lasts longer than six months, the benefit unit can be referred to a smaller apartment if the accommodation costs have become too high relative to the number of SGB II claimants (see, in this regard, the Berlin-Brandenburg Higher Social Court ruling of November 5, 2008 – L 20 B 1902/08 AS ER). (Work-
release inmates
For inmates on work release who are employed for more than a short period, the social welfare agency responsible for social assistance (SGB II) is obligated to cover their accommodation costs. The remaining duration of their sentence is irrelevant. With employment or unrestricted work release, the individual is no longer considered to be living in a residential facility as defined in Section 7 Paragraph 4 of the German Social Code, Book II (SGB II). Their housing needs are only partially met by their incarceration, as they require their own accommodation for stays outside the prison (Berlin Social Court, October 27, 2005 – S 94 AS 9350/05 ER; Berlin-Brandenburg Higher Social Court, February 2, 2006 – L 14 B 1307/05 AS ER; January 2, 2007 – L 14 B 948/06 AS ER).
If furniture and household items have been stored as a result of an eviction or other abandonment of residence, the storage costs and the release fee are considered part of the accommodation costs according to Section 22 Paragraph 1 of the German Social Code, Book II (SGB II) (Federal Social Court [BSG] judgment of February 16, 2008 – B 4 AS 1/08 R). The necessity of such an interpretation of the term "accommodation costs" is demonstrated by the entitlement to initial furnishings according to Section 23 Paragraph 3 of the SGB II; this entitlement arises if the furniture is to be auctioned off, should the storage costs and release fee not be covered (cf. Social Court [SG] Berlin judgment of October 11, 2005 – S 95 AS 9653/05 ER). Only if storage costs have increased to such an extent that initial furnishing would be more economical can the social security agency responsible for benefits under Book II of the German Social Code (SGB II) refuse to cover the costs as unreasonable (Hessian State Social Court, judgment of December 27, 2005 – L 7 SO 33/05 ER, which classifies the assumption of storage costs as benefits under Sections 67 et seq. of Book XII of the German Social Code (SGB XII)). If a relative provides space for storing the furniture, the social security agency responsible for benefits under Book II of the German Social Code (SGB II) may be required to cover the costs of transporting the furniture (Social Court of Duisburg, judgment of February 19, 2008 – S 7 SO 2/08 ER).
4. State Social Court Berlin-Brandenburg L 25 AS 1746/08 22.10.2009, Judgment
Realizable inherited claims for damages are considered income that can be taken into account when receiving ALG II benefits after an application has been submitted.
The distinction between income and assets is based on the definitions set out in Section 11 Paragraph 1 Sentence 1 and Section 12 Paragraph 1 of the German Social Code, Book II (SGB II). According to Section 11 Paragraph 1 Sentence 1 SGB II, income includes receipts in cash or in kind, with the exception of benefits under the SGB II, the basic pension under the Federal War Victims' Relief Act (BVG) and laws that provide for the corresponding application of the BVG, and pensions or allowances paid under the Federal Compensation Act for damage to life, body, or health. According to Section 12 Paragraph 1 SGB II, all realizable assets are to be considered, although allowances are to be deducted from these assets according to Paragraph 2 of the same provision. However, the SGB II itself does not provide a further distinction between income and assets. According to the established case law of the Federal Social Court (BSG), which this Senate adopts based on its own review, income within the meaning of Section 11 Paragraph 1 of the German Social Code, Book II (SGB II) is anything of value that someone receives after submitting an application, and assets are those they already possessed before submitting the application. The decisive factor is the actual receipt of funds, unless a different receipt is legally stipulated as relevant. The fate of the claim is irrelevant. Likewise, the reason for the payment at a specific time is immaterial (see, in particular, the BSG judgments of September 30, 2008 – B 4 AS 29/07 R [income tax refund] and B 4 AS 57/07 R [interest income from savings] – as well as the judgment of March 3, 2009 – B 4 AS 47/08 R [severance payments from a labor court settlement following enforcement measures]).
Based on these principles, the €15,000 paid in January 2007 must be considered income, not assets. Regardless of whether, and if so, under what conditions, an inherited sum constitutes income or assets, it must be taken into account that the plaintiffs inherited only claims for damages and possibly also for pain and suffering from their husband and father, who had already passed away in October 2005. These claims could only be realized for the first time in January 2007 due to the settlement they reached with A Insurance AG, and therefore their actual value was only received in that month.
The €15,000, which were first received in January 2007, must also be considered income in the plaintiffs' case because no exception applies that would preclude its consideration. In particular, the €15,000 cannot be exempted from being counted as income under Section 11 Paragraph 3 Number 2 of the German Social Code, Book II (SGB II). While this provision stipulates that compensation paid for non-pecuniary damages under Section 253 Paragraph 2 of the German Civil Code (BGB) is not to be considered income, this provision does not apply here. As the defendant and the Social Court have already correctly stated in the preceding context, the payment in question does not constitute compensation in the aforementioned sense. Regardless of whether and to what extent this payment even settled any claims for pain and suffering, such payments have a privileged character only with respect to the injured party. This privileged character is lost upon their death, because the payments serve only to compensate for non-material damages and provide satisfaction to the injured party (see Federal Administrative Court, decision of May 19, 2005 – 5 B 106/04 –). No other specific purpose for the payment is apparent.
Contrary to the plaintiffs' assertion, the €15,000 cannot be disregarded even on the grounds of hardship. The German Social Code, Book II (SGB II), does not provide for a hardship clause regarding income assessment. Nor can such a clause be derived from any other codifications. In particular, Section 2, Paragraph 3, Sentence 3 of the 2005 Ordinance on Unemployment Benefit II (Alg II-V 2005) does not permit the omission of income assessment on the grounds of hardship. This provision, which according to Section 2b of the Alg II-V 2005 also applies to income that—as in this case—does not originate from dependent or self-employed work, a business, or agriculture and forestry, stipulates that one-off payments must be spread over a reasonable period and included in the monthly calculation with a corresponding partial amount, unless a different arrangement is warranted in a specific case. As the plaintiffs correctly pointed out, this provision does allow for the possibility of making a decision deviating from the general principle in individual cases. Contrary to the plaintiffs' view, however, it does not address the question of whether and under what conditions income may be completely disregarded, but rather – as is evident from its wording and its inclusion in paragraph 3 of Section 2 of the 2005 Regulation on Unemployment Benefit II – deals solely with the period over which one-off payments may be distributed. Logically, it therefore presupposes that there is income to be taken into account and, against this background, cannot lead to the situation where income is exempt from being considered in certain cases of hardship.
4.1 – Berlin-Brandenburg State Social Court L 34 AS 1936/09 B ER 08.01.2010 legally binding, decision
Even if a hardship situation is caused through negligence, Hartz IV recipients are entitled to have their rent arrears covered, especially if the applicant is mentally ill and already receives help to overcome particular social difficulties.
Furthermore, a prerequisite for a discretionary decision to be made by the respondent, or the regularly exercised, mandatory discretion pursuant to Section 22 Paragraph 5 Sentence 2 of the German Social Code, Book II (SGB II), is that the assistance to secure accommodation or to remedy a comparable emergency is "justified." The requirement of justification for the assumption of debt is a factual element of the provision, which, as an indeterminate legal concept, is subject to full judicial review (see Higher Administrative Court of Lüneburg, Judgment of September 25, 1996 – 4 L 4040/95 – Juris para. 24; Schmidt in: Oestreicher, SGB XII/SGB II, as of March 2009, Section 22 SGB II para. 146; Dauber in: Mergler/Zink, SGB XII, as of August 2008, Section 34 para. 11).
When assessing whether the benefit is justified, the circumstances surrounding the emergency are of particular importance. Assuming debt is generally only justified if, based on the overall circumstances, the person in need has fallen into arrears with payments for accommodation-related costs (rent, gas and electricity bills, etc.) through no fault of their own, the emergency threatens the recipient's livelihood, and the debts cannot be repaid independently. Assuming debt is not justified if... For example, rent or energy cost prepayments may not be paid in reliance on the fact that the benefit provider will later assume the rent and/or energy debts (Bundestag printed matter 13/2440, p. 19, concerning the predecessor regulation of Section 15a of the Federal Social Assistance Act), or rent debts may arise because the person seeking assistance, despite being advised by the provider, remained in an unreasonably expensive apartment and failed to cover the difference between reasonable and actual costs (Higher Administrative Court of Lüneburg, decision of March 24, 1999 – 4 M 756/99 – Juris para. 23). Furthermore, assuming the debts should not retrospectively reward irresponsible behavior on the part of the benefit recipient and thereby further reinforce a lack of personal responsibility (cf. Dauber, ibid., para. 11).
In the present case, it is important to note that, according to the file, the rent arrears arose from reasons attributable to them. The benefits they received to secure their livelihood under the German Social Code, Book II (SGB II), each included a portion for housing costs, meaning the applicants were responsible for paying the monthly rent to the landlord. However, according to the letter from the Berlin City Mission dated October 19, 2009, the applicants used these benefits to "pay a fine to avert imminent imprisonment.".
This misuse of benefits for accommodation and heating cannot lead to the respondent having to cover these costs a second time by way of a loan under Section 22 Paragraph 5 of the German Social Code, Book II (SGB II). Rather, Section 22 Paragraph 5 SGB II, as also follows from the factual requirement of justification for the assumption of debt, establishes an exceptional circumstance that, given the general purpose of the SGB II not being to discourage private debt repayment, takes into account the legislative goal of preventing homelessness.
In the present case, however, the following special circumstances must be considered. According to the file, the applicants' apartment has already been allocated to them within the "protected market segment." Based on information obtained by telephone from the social worker at the city mission who is supporting applicant 1), it can be assumed that the applicants would become homeless for an extended period if they lose their apartment. Since applicant 2) is currently training to be a media designer, there is a concern that she will not be able to complete this training successfully. Furthermore, according to the file, both applicants suffer from mental illness. Applicant 1) is therefore under regular medical treatment. Applicant 1) has previously been hospitalized for this reason. Finally, applicant 1) receives assistance to overcome particular social difficulties pursuant to Sections 67 et seq. of Book Twelve of the German Social Code. This assistance is provided when individuals cannot overcome these difficulties on their own. The aforementioned social worker described the applicants' situation in his letter of December 11, 2009, and confirmed by telephone that applicant no. 1 was receiving assistance. Meetings and home visits now take place regularly once a week, during which the problems are discussed and solutions are sought. The social worker made a positive prognosis in this regard.
Against this background, the defendant was obligated to grant a loan in this specific case.
Note: Benefits for rent arrears can only be granted if this is justified to secure housing. This is a discretionary decision that takes into account the circumstances of the individual case, such as the reason for the accumulation of the debt, whether it resulted from the individual's abusive behavior, or their willingness to change their behavior in the future (see Gagel/Lauterbach, Commentary on the German Social Code, Book II, Section 22, para. 103).
There is no justification for assuming the rent arrears if eviction cannot be prevented even if the rent arrears are assumed (cf. decision of the Hessian State Social Court of 26 October 2005 – L 7 AS 65/05 ER -; decision of the Berlin-Brandenburg State Social Court of 2 March 2009 – L 28 AS 253/09 B ER -).
Furthermore, the assumption of costs is not justified if the accommodation in question has already been vacated (see LPK/SGBII/Berlit, § 22, para. 112; Eicher/Spellbrink/Lang/Link, Commentary on SGB II, § 22, para. 109). This applies all the more if the person concerned has remained in the apartment despite a request from the benefit provider to reduce costs, and the debts have accumulated as a result (see decision of the Lower Saxony-Bremen State Social Court of February 21, 2007 – L AS 22/07 ER –).
Furthermore, the assumption of costs is not justified if the accommodation is unreasonable in terms of cost (see decision of the State Social Court of Baden-Württemberg of October 26, 2007 – L 8 AS 4481/07 ER-B –; decision of the State Social Court of Berlin-Brandenburg of March 22, 2007 – L 28 B 269/07 AS ER –; Eicher/Spellbrink/Lang/Link, Commentary on the SGB II, § 22, para. 109; KH/SGB II/Hohm/Frank, § 22, para. 79.3).
5. Social Court Freiburg S 12 AS 2626/07 31.07.2009 legally binding, judgment
Section 22, paragraph 3, sentence 3 of the German Social Code, Book II (SGB II) does not imply that a rental deposit loan must be granted without repayment obligations. Rather, the specific form the loan is granted is at the discretion of the benefit provider. Neither the legal system in general nor the SGB II contains a prohibition against the voluntary repayment of debts.
Note: Withholding social benefits in installments to repay a rental deposit loan is illegal. Section 22 Paragraph 3 of the German Social Code, Book II (SGB II) provides for an interest-free and repayment-free loan.
In its legally binding decision of August 21, 2007 – S 43 AS 4/09 ER – the State Social Court of North Rhine-Westphalia ruled that the installment-based withholding of basic income support benefits for job seekers to repay a rental deposit loan granted by the benefit provider under the German Social Code, Book II (SGB II), is unlawful. According to the court, Section 22 Paragraph 3 of the SGB II provides for an interest-free and repayment-free loan in such a case.
Even assuming that the legislator permitted the possibility of granting loans before the SGB II Amendment Act of March 26, 2006 (Federal Law Gazette I, p. 558) came into force, because the granting of benefits under the SGB II is not intended to serve the purpose of asset accumulation, this does not necessarily give the benefit provider the right to offset the loan against the benefit. In particular, Section 23 Paragraph 1 Sentence 3 of the SGB II is unlikely to serve as a legal basis for offsetting, because a rental security deposit is not a need covered by standard benefits, but rather a cost of accommodation within the meaning of Section 22 of the SGB II (see Higher Social Court of Baden-Württemberg, Decision of September 6, 2006 – Case No.: L 13 AS 3108/06 ER-B).
In a decision dated January 29, 2008, the Hessian State Social Court (LSG) also ruled that rental deposit loans cannot be offset against ongoing basic income support benefits for jobseekers pursuant to Section 23 Paragraph 1 Sentence 3 of the German Social Code, Book II (SGB II) or Section 43 of the SGB II. When offsetting a rental deposit loan pursuant to Section 51 of the German Social Code, Book I (SGB I), the agencies providing benefits under the SGB II must observe the attachment limits for the garnishment of earned income pursuant to Section 54 Paragraph 4 of the SGB I in conjunction with Section 850c Paragraph 1 of the German Code of Civil Procedure (ZPO) (following the decisions of the Hessian State Social Court dated September 5, 2007, L 6 AS 145/07 ER, and of January 16, 2008, L 9 SO 121/07 ER, regarding Section 37 Paragraph 1 of the German Social Code, Book XII (SGB XII)).
Even recipients of benefits under the German Social Code, Book XII (SGB XII), are not required to repay a rental deposit granted by the authorities from their standard allowance on a monthly basis, as the deduction of monthly loan repayments for a rental deposit and moving expenses cannot be based on either Sections 29 and 37 of the SGB XII or Section 26 of the SGB XII. Sections 51 and 54 of the German Social Code, Book I (SGB I) only permit offsetting to the extent that the benefit recipient's claims are subject to garnishment. This is not the case with claims for subsistence assistance under the SGB XII (see the decision of the Hessian State Social Court of January 16, 2008, – L 9 SO 121/07 ER –).
According to the explicit wording of Section 29 Paragraph 1 Sentence 7 of the German Social Code, Book XII (SGB XII), rental deposits are to be granted as loans. Unlike, for example, Section 37 of the SGB XII, this provision contains no regulation regarding the modalities of loan repayment. The legislative materials (see the explanatory memorandum to Section 22 Paragraph 3 of the German Social Code, Book II (SGB II), Bundestag printed matter 16/1688, p. 14) only indicate that the responsible benefit provider should generally provide a rental deposit in the form of a loan, since the very nature of a rental deposit dictates that it is usually returned to the tenant. Therefore, it is generally not justified to leave the deposit permanently with the person in need. However, the explanatory memorandum contains no explicit references to the due date of the loan repayment. The reduction of current benefits under the German Social Code, Book II (SGB II) and Book XII (SGB XII) by way of offsetting them to repay loans means that the legally guaranteed minimum subsistence level is no longer ensured.
According to the clear wording of the law, rental deposits are to be covered under the special provision of Section 22 Paragraph 3 Sentence 1, 3 of the German Social Code, Book II (SGB II), and not under Section 23 Paragraph 1 Sentence 1 SGB II, because the need arising from a rental deposit is not covered by the standard benefit. In the court's opinion, securing the loan repayment claim by deducting monthly installments from the ongoing benefit under the SGB II is also inadmissible because, on the one hand, the legal requirements for this are not met, unlike in Section 23 Paragraph 1 Sentence 3 of the German Social Code, Book XI (SGB XI), and on the other hand, the rental deposit repayment claim is not yet due (see Lang/Link, in Eicher/Spellbrink, Section 22, marginal note 92a, 2nd edition 2008; see also Berlit, in: LPK-SGB XI, 2nd edition 2007, Section 22, marginal note 101). The decision of the Schleswig Social Court of May 27, 2008 (S 9 AS 239/08 ER), cited by the respondent, is unconvincing because it invokes Section 23 Paragraph 1 Sentence 3 of the German Social Code, Book II (SGB II) for the repayment of a rental deposit loan, without any legal basis for such recourse or the possibility of applying the provision by analogy. The repayment provision of Section 23 Paragraph 1 Sentence 3 SGB II refers exclusively to the granting of loans pursuant to Section 23 Paragraph 1 Sentence 1 of the German Social Code, Book XI (SGB XI) (see also the decision of the Baden-Württemberg Higher Social Court of September 6, 2006, Case No.: L 13 AS 3108/06 ER-B; Piepenstock, in: JurisPK-SGB XI, 2nd edition 2007, Section 22, marginal note 128). There is neither an unintended regulatory gap nor a comparable conflict of interests that would permit an analogous application of Section 23 Paragraph 1 Sentence 3 of the German Social Code, Book II (SGB II). Section 22 Paragraph 3 of the SGB II does not contain a corresponding provision regarding the repayment of the loan. Based on the systematic interpretation of the law, it can be concluded that the legislator intended that repayment of a rental deposit loan should not be possible before the corresponding repayment claim becomes due. The legislative materials (see the explanatory memorandum to Section 22 Paragraph 3 of the SGB II, Bundestag printed matter 16/688, page 14) indicate that the responsible benefit provider should generally provide a rental deposit in the form of a loan, since the very nature of a rental deposit dictates that it is usually returned to the tenant. Therefore, it is generally not justified to allow the recipient of assistance to retain the deposit permanently. The explanatory memorandum to the law therefore contains no explicit reference to the possibility of repaying the loan in installments from current basic income support payments.
The explanatory memorandum also contains no explicit indication that the loan is to be repaid only after the landlord has returned the security deposit. However, the overall context suggests that the legislator intended a loan without repayment (and without interest) (see also Berlit, loc. cit.; Higher Social Court of Hesse, decision of September 5, 2007, file no.: L 6 AS 145/07 ER). This is because, unlike Section 22 Paragraph 3 of the German Social Code, Book II (SGB II), Section 23 Paragraph 1 Sentence 1 of the SGB II requires that a need, which is generally to be met from the standard benefit and thus through savings, is unavoidable; this is precisely not the case with a security deposit required for a move.
The 1st Chamber of the Schleswig Social Court ruled in its judgment of March 3, 2009, file number S 1 As 201/06, that the established practice of benefit providers under SGB II, to offset rent deposits received as loans against current benefits during the period of benefit receipt, is unlawful.
6. Note on: LSG Celle-Bremen 9th Senate, decision of 18.05.2009 – L 9 AS 529/09 B ER
Author: Dr. Christiane Padé, Ri'inSG
Publication date: 10.12.2009
Source:
Legal provisions: Section 37b SGB III, Section 22 SGB II
Reference: jurisPR-SozR 25/2009 Note 1
Editors: Dr. Thomas Voelzke, Presiding Judge of the Federal Social Court (BSG)
Prof. Dr. Rainer Schlegel, Presiding Judge of the Federal Social Court (BSG)
Inappropriate housing costs after temporary termination of benefit receipt
Guiding principle
If a recipient of social assistance has not been receiving basic income support under the German Social Code, Book II (SGB II) for more than one year and was able to cover their housing costs, which are deemed unreasonable under basic income support law, from their available income during this time, they cannot be immediately confronted with a past request to reduce their housing costs after reapplying for benefits. Instead, pursuant to Section 22, Paragraph 1, Sentence 3 of the SGB II, they must be granted a transitional period to reduce their housing costs. During this period, their actual housing costs must be taken into account as a need when calculating benefits, pursuant to Section 22, Paragraph 1, Sentence 1 of the SGB II.
Further information can be found at:
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