The assumption of costs for accommodation under the German Social Code, Book II (SGB II), may not be refused due to an inconclusive determination of the reasonable limit if the refusal is not based on a conclusive concept for determining a reasonable level of housing costs.
To specify the limit of appropriateness, according to the case law of the Federal Social Court (BSG), the abstractly appropriate size and standard of accommodation are determined in a first step, and in a second step, the spatial comparison standard to be used for the further examination steps is determined.
According to the Federal Social Court's (BSG) jurisprudence, the appropriateness of apartment size is determined by referring to the values established by the federal states pursuant to Section 10 of the Law on Social Housing Promotion (WoFG) (see BSG, judgment of November 7, 2006 – B 7b AS 18/06 R, BSGE 97, 254 = SozR 4-4200 § 22 No. 3 para. 19; judgment of June 18, 2008 – B 14/7b AS 44/06 R: Osnabrück). Pursuant to Section 10 WoFG, the federal states may set limits for apartment sizes in subsidized housing construction, up to which subsidies are considered. The present panel considers this point of reference problematic (see, for details of its criticism, the panel's judgment of February 19, 2009 – B 4 AS 30/08 R, paras. 16 et seq., concerning the city of Munich). For reasons of legal certainty and practicality, he currently considers it justifiable to proceed in the same manner as the other senates of the Federal Social Court (BSG) until the legislator has itself enacted a nationwide regulation defining appropriate apartment sizes, which is possible under Section 27 of the German Social Code, Book II (SGB II) and urgently desirable with regard to the uniform application of the law. The determination of the comparison area involves ascertaining a (reasonable) reference rent at the place of residence or in the wider residential environment of the person in need of assistance. Therefore, starting from the place of residence of the recipient of assistance, the benchmark is those sufficiently large areas (not merely districts or neighborhoods) of residential development that, due to their spatial proximity to one another, their infrastructure, and especially their transport connections, constitute a homogeneous living and residential area overall (for details, see the Senate's judgment of February 19, 2009 – B 4 AS 30/08 R, paragraphs 20-23, Munich).
Once the abstractly appropriate apartment size and the relevant comparison area have been established, the Federal Social Court (BSG) has ruled that, in a third step, the cost of a basic apartment on this housing market must be determined according to the product theory. This means that the basic income support provider aims to determine a price per square meter for apartments of basic standard, which is then multiplied by the square footage allocated to the recipient of assistance, thus determining the appropriate rent.
A flat, nationwide limit (price per square meter) is not feasible here, since, on the one hand, the specific circumstances must be considered, and on the other hand, housing costs can vary considerably between different comparison areas. To nevertheless ensure consistent administrative action even within a comparison area, the determination of the regional reasonableness limit (Judgment of June 18, 2008 – B 14/7b AS 44/06 R) must be based on a verifiable and "coherent concept". The coherent concept should provide sufficient assurance that the current conditions of the local rental housing market are reflected (see BSG, judgment of 18 June 2008 – B 14/7b AS 44/06 R = FEVS 60, 145, 149; see also BSG, judgment of 19 March 2008 – B 11b AS 41/06 R = SozR 4-4200 § 22 No. 7 para. 23). The basic income support provider is not necessarily required to rely on a simple or qualified rent index as defined in Sections 558c and 558d of the German Civil Code (BGB) (see judgment of the 7b Senate of November 7, 2006 – B 7b AS 18/06 R, BSGE 97, 254 = SozR 4-4200 § 22 No. 3; BSG, judgment of June 18, 2008 – B 14/7b AS 44/06 R = juris para. 7). Rather, what is decisive is that the basic income support provider's findings are based on a concept, that this concept is coherent in the interest of the verifiability of the result, and that the limitation of the actual accommodation costs to a "reasonable level" is thus sufficiently comprehensible.
A concept is a planned approach by the basic income support provider in the sense of systematically determining and evaluating general, albeit location- and time-dependent, facts for all applications in the relevant comparison area and not just a case-by-case approach.
The concept is sound if it meets at least the following requirements:
= Data collection must take place exclusively within the precisely defined area and must cover the entire comparison area (no ghettoization)
= a comprehensible definition of the object of observation is required, e.g., what type of apartments – differentiation according to apartment standard, gross and net rent (comparability), differentiation according to apartment size,
= Information about the observation period,
= Determining the method of data collection (sources of information, e.g. rent index),
= Representativeness of the scope of the collected data,
= Validity of the data collection,
= Compliance with recognized mathematical-statistical principles of data analysis and
= Information about the conclusions drawn (e.g., upper range or capping limit).
To date, legislators and regulatory authorities have refrained from issuing normative guidelines to the administration on how to determine the adequacy threshold. Therefore, the administration is not bound to a specific procedure until further notice. Based on its knowledge of local conditions, it is best positioned to assess which approach would be most suitable for collecting the data relevant to basic income support law. For example, depending on the circumstances, it may be sufficient to collect the necessary data from local housing cooperatives if the majority of the apartments available to benefit recipients are owned by these cooperatives. However, such information alone is insufficient if the cooperatives do not own a significant share of the housing stock in the relevant area and a rent survey cannot provide a valid data basis for determining the adequacy threshold.
A sound concept can be based on apartments from the entire housing stock (basic, average, and superior standards) as well as on apartments of basic standards only. If the social security provider bases its data collection solely on apartments of so-called basic standards, it must transparently disclose the criteria used for this selection. In this case, the upper limit of the rent range, i.e., the top value of the determined rent range, must be used as the limit of what is considered reasonable.
For data collection, not only data from apartments actually offered on the market are considered, but also data from those already rented (Judgment of the Senate of February 19, 2009 – B 4 AS 30/08 R = juris para. 24). In contrast to the creation of rent indices or rent databases, whose primary aim is the continued functioning of the market for privately financed rental housing (Federal Ministry of Transport, Building and Urban Development, Guidelines for the Creation of Rent Indices, as of July 2002, p. 3), for the purposes of calculating housing costs, all living space that is actually rented for this purpose must generally be taken into account; this includes, for example, living space where the rent is fixed by law or in connection with a funding commitment. However, living space whose rent cannot provide reliable information about local conditions is not to be considered; this includes, for example, living space in dormitories or hostels and gratuitous tenancies (e.g., agreements on particularly low rents between relatives). Also excluded is living space that is generally not intended to be rented for longer than six months and is therefore, in the Senate's view, only temporary (e.g. holiday apartments, apartments for assembly workers).
The collected data must be comparable, meaning they must be based on the same definition of rent. Typically, this is either the net or gross rent. If the net rent is chosen as the basis, the operating costs (excluding utilities) must be deducted from the gross rent. If the gross rent is the basis for comparison, data on the operating costs payable separately by the tenant must also be collected. If, for example, living space is rented (partially) furnished and the fee payable for the use of the furniture can be determined, this amount must be deducted; otherwise, an amount that is customary for this purpose according to the local comparative standard must be deducted.
If the social security provider decides to create a rent index relevant to social security purposes, this will regularly only be possible on the basis of a sample for financial reasons. In this case, it is advisable to adhere to the standard applicable to rent indices with regard to sample size and evaluation, etc. (see Federal Ministry of Transport, Building and Urban Development, Guidelines for the Creation of Rent Indices, as of July 2002, pp. 38 ff.): The sample can be, but does not have to be, proportional. In this context, proportional means that such a sample also includes all essential subsets of the population in similar proportions (Börstinghaus/Clar, Rent Index, 1997, para. 650).
It is essentially the responsibility of the basic income support providers to develop a coherent concept for their area of jurisdiction, based on which the necessary data for determining the adequacy limit are collected and evaluated. The insights gained from such a concept are therefore, in principle, necessary for the basic income support provider to make a sound decision in administrative proceedings and must be presented by the basic income support provider in any legal dispute. If the basic income support provider decides without a sufficient data basis, it is obligated, within the scope of its procedural duty to cooperate pursuant to Section 103 Sentence 1, second half-sentence of the Social Court Act (SGG), to provide the court with the most reliable basis for its decision possible and, if necessary, to carry out any omitted data collection and processing. The municipal authority responsible for benefits under Section 22 of the German Social Code, Book II (SGB II), pursuant to Section 6 Paragraph 1 Sentence 1 Number 2 SGB II, can be expected to provide the data it holds as well as the personal and/or material prerequisites for collecting and evaluating the necessary data. This duty to investigate does not automatically transfer to the social court if the basic income support provider's concept proves to be unsustainable (unconvincing) or if, in the case of an otherwise coherent concept, the necessary data have not been collected or have not been collected properly.
If the determination of the basic income support provider's limit of reasonableness is not based on a coherent concept, the Social Court has the option of overturning the contested administrative act within six months of receiving the case file, pursuant to Section 131 Paragraph 2 of the Social Court Act (SGG). The defendant's interests can be protected by the court issuing a preliminary injunction (Section 131 Paragraph 5 Sentence 2 SGG) until a new administrative act is issued. This injunction may also include the obligation to continue paying the actual housing costs. If, after exhausting all avenues of investigation, the court is convinced that no further information is available—for example, due to the passage of time—the basic income support provider must cover the recipient's actual housing expenses. However, even in this case, these expenses are not to be covered without limit, but only up to the amount of the moderately increased table values in Section 8 of the Housing Benefit Act (WoGG)
Inaccurate information provided by the social security agency regarding the adequacy of housing can give rise to a claim for reimbursement of excessive housing costs under Section 22 Paragraph 1 Sentence 3 of the German Social Code, Book II (SGB II) (until July 31, 2006: Section 22 Paragraph 1 Sentence 2 SGB II), if this information renders cost-reduction measures impossible (see in detail the Senate's judgment of February 19, 2009 – B 4 AS 30/08 R: Munich = juris para. 27 et seq.). However, the insufficient factual findings of the Higher Social Court (LSG) do not allow the Senate to make a final judgment as to whether the defendant provided false or misleading information that was the cause of the unsuccessful housing search. Therefore, the LSG may need to make further findings in this regard.
2. LSG Baden-Württemberg Judgment of 19 January 2010, L 13 AS 3303/08
The asserted difference in preference for nighttime temperature in a bedroom does not justify a space requirement exceeding the reasonable value of 60 m² for two persons.
The risk that existing furniture cannot be reassembled and used after a move does not justify the unreasonableness of reducing the costs of accommodation.
According to Section 22 of the German Social Code, Book II (SGB II), actual heating costs are to be considered reasonable as a basis for calculation, unless there is evidence of extremely high consumption. A flat-rate calculation of heating costs based on apartment size is inadmissible. The nationwide heating cost index can be used to determine the limit of reasonable heating costs (following the ruling of the Federal Social Court of July 2, 2009, Case No.: B 14 AS 36/08 R).
According to Section 19 Sentence 1 of the German Social Code, Book II (SGB II), employable persons in need of assistance receive unemployment benefit II to secure their livelihood, including reasonable costs for accommodation and heating. The latter are provided in the amount of the actual expenses, insofar as they are reasonable (see Section 22 Paragraph 1 Sentence 1 SGB II). What constitutes reasonable costs for accommodation and heating is determined according to the so-called "product theory" (established case law of the Federal Social Court (BSG), e.g., judgments of November 7, 2006, case nos.: B 7 b AS 10/06 R and B 7 b AS 18/06 R; judgment of February 27, 2008, case no.: B 14/7b AS 70/06 R; judgment of June 18, 2008, case no.: B 14/7b AS 44/06 R). The size and standard of the apartment, as regularly reflected in the price per square meter, must be taken into account, although both factors (size and standard) do not necessarily have to be considered "appropriate" in isolation. Costs are considered appropriate if and as long as the product of living space (number of square meters) and standard (rent per square meter) does not exceed a generally appropriate rent (reference rent) (see Federal Social Court, judgment of February 19, 2009, case no.: B 4 AS 30/08 R). According to the case law of the Federal Social Court (BSG), the appropriateness of apartment size is determined by referring to the values established by the federal states pursuant to Section 10 of the Act on Social Housing Promotion (WoFG) (see BSG, judgment of November 7, 2006, case no.: B 7b AS 18/06 R; judgment of June 18, 2008, case no.: B 14/7b AS 44/06 R; judgment of February 19, 2009, case no.: B 4 AS 30/08 R). According to Section 10 WoFG, the federal states may set limits for apartment sizes in subsidized housing construction, up to which subsidies are considered. The size of the apartment to be subsidized must be "appropriate" in accordance with its intended purpose (see Section 10 para. 1 no. 1 WoFG).
The housing standard, as the second factor of the product theory, is considered adequate if the apartment, in terms of its furnishings, location, and building structure, meets simple and basic needs and does not exhibit a high standard; it is a "modestly sized apartment" ("merely a simple and lower-segment level of furnishings," cf. Federal Social Court [BSG], judgment of November 7, 2006; case no.: B 7b AS 10/06 R). In principle, the relevant spatial comparison area is the place of residence of the person in need of assistance (Federal Social Court [BSG], judgment of February 19, 2009, case no.: B 4 AS 30/08 R). Since the determination of the comparison area is about determining a (reasonable) reference rent at the place of residence or in the wider residential environment of the person in need of assistance, the boundaries of the comparison area must be described in particular according to which sufficiently large areas (not mere districts or neighborhoods) of residential development form an overall homogeneous living and residential area due to their spatial proximity to each other, their infrastructure and especially their transport connections.
The amount of expenditure to be incurred for an apartment deemed appropriate in the abstract on the housing market in the relevant area is to be determined based on the apartments actually offered on the market and the apartments rented in the local area. These are regularly reflected in a rent index. The price per square meter for apartments in the "lower rent segment" is to be used as a basis for this determination (cf. most recently Federal Social Court, judgment of February 19, 2009, case no.: B 4 AS 30/08 R).
Further assumption of the actual – unreasonable – costs for accommodation and heating is only considered if the plaintiffs are actually unable to rent a dwelling that is considered reasonable in the abstract on the relevant housing market (Federal Social Court, judgment of November 7, 2006, case no.: B 7b AS 18/06 R). This follows from Section 22 Paragraph 1 Sentence 3 of the German Social Code, Book II (SGB II) (until July 31, 2006: Section 22 Paragraph 1 Sentence 2 SGB II), which stipulates that insofar as the expenses for accommodation exceed the amount reasonable for the particular circumstances of the individual case, they must be taken into account as a need of the single person in need of assistance or the household for as long as it is not possible or reasonable for the single person in need of assistance or the household to reduce the expenses by moving, subletting, or in some other way, but generally for no longer than six months. According to the jurisprudence of the Federal Social Court (BSG), this provision establishes an obligation to reduce costs (BSG, judgment of February 27, 2008, file no.: B 14/7b AS 70/06 R; judgment of February 19, 2009, file no.: B 4 AS 30/08 R); the employable recipient of assistance is required to initiate measures to reduce costs. Examples of such cost-reducing measures include changing residences, (sub)letting, renegotiating with the landlord, etc. If the person in need of assistance is aware, as in the present case from the defendant's instructions in the notices of May 10, 2005, November 7, 2005 and November 7, 2005, of their obligation to reduce their housing costs and if cost-reduction measures are both subjectively reasonable and possible, they can only claim reimbursement of their expenses from the point in time at which these measures could become effective, e.g., by adhering to notice periods, etc., up to the amount of the reference rent, i.e., the expenses for a suitable apartment (cf. Lang/Link in Eicher/Spellbrink, SGB II, 2nd ed. 2008, § 22 para. 61). A six-month "grace period" before the commencement of cost-cutting measures and the continued payment of unreasonable costs for accommodation and heating "as a rule" for a six-month period without further justification cannot be derived from either the wording or the meaning and purpose of Section 22 Paragraph 1 Sentence 3 of the German Social Code, Book II (BSG, Judgment of February 19, 2009, Case No.: B 4 AS 30/08).
If cost-cutting measures are not possible or subjectively unreasonable, the actual – and therefore unreasonable – expenses will initially be covered, but according to the wording of Section 22 Paragraph 1 Sentence 3 of the German Social Code, Book II (SGB II), "as a rule, for a maximum of six months." Thus, even in cases of "unreasonableness or impossibility," the provision stipulates that "as a rule," after six months at the latest, only expenses up to the amount of the reference rent should be reimbursed (standard case). However, since, on the one hand, the law cannot demand "nothing impossible or unreasonable" from those receiving assistance when searching for alternative accommodation, and on the other hand, the assumption of excessive costs for accommodation and heating should be exceptional in light of the aforementioned legal consequences, strict requirements must be placed on the interpretation of the criteria of impossibility and unreasonableness when determining exceptions to the standard case. The reimbursement of unreasonable costs for accommodation and heating remains an exceptional case requiring justification based on objective reasons, and the obligation to reduce costs remains even in cases of impossibility or subjective unreasonableness. Unreasonably high costs for accommodation and heating do not become reasonable costs for accommodation and heating even if cost-reduction measures are impossible or unreasonable. Special circumstances that may justify an exception include, in particular, fundamental rights-related issues or cases of hardship. These include, for example, consideration for the social and educational environment of minor children of compulsory school age, who should ideally not be forced to change schools due to a change of residence. Similarly, consideration may be given to single parents who rely on specific infrastructure for childcare, which might be lost if they move to a more distant part of town and could not be replaced in the new residential area. A similar situation may apply to disabled or care-dependent people, or to the family members who care for them, who also depend on special local infrastructure to ensure the participation of disabled people.
An objective impossibility of an alternative accommodation can only be justified in rare exceptional cases, since there is currently no general housing shortage in Germany and at most a lack of sufficient living space exists in individual regions (cf. BSG, judgment of 19 February 2009, file no.: B 4 AS 30/08 R).
Furthermore, the search for alternative accommodation should not be limited to the current municipality of residence of the person in need of assistance. While the need to maintain the existing social environment must be respected, this does not mean that no changes to the housing situation are permissible. Rather, the recipient of assistance must also accept commutes using public transportation, as is generally expected of working commuters (cf. Federal Social Court, judgment of February 19, 2009, case no.: B 4 AS 30/08 R).
Blatantly expensive or uneconomical heating cannot be financed by the basic income support provider. According to the jurisprudence of the Federal Social Court (judgment of July 2, 2009, case no.: B 14 AS 36/08 R), the assessment of the reasonableness of heating costs is conducted separately from the assessment of the reasonableness of accommodation costs. A flat-rate calculation of heating costs based on the "surplus area principle," i.e., granting only a proportionate share of the actual heating costs for an unreasonably large apartment, corresponding to the reasonable apartment size, is not permissible. In principle, the actual heating costs are to be considered reasonable, unless thresholds indicating unreasonable heating behavior are exceeded. Regarding these thresholds, the values for "extremely high" heating costs in the municipal heating cost index, or, if no such index exists, in the nationwide heating cost index, should be used. Only if these thresholds are exceeded is the recipient of benefits required to demonstrate, in the specific individual case, why their expenses should nevertheless still be considered reasonable. If this limit is not exceeded, the actual heating costs are to be considered reasonable.
3. Hessian State Social Court L 7 AS 413/09 18.12.2009, Judgment (on the legal question, which has not yet been clarified by the highest court, of whether Section 37 Paragraph 2 Sentence 1 of the German Social Code, Book II (SGB II) also applies to subsequent applications, the appeal on points of law was admitted pursuant to Section 160 Paragraph 2 No. 1 of the German Social Courts Act (SGG).
Even in the case of subsequent applications under the German Social Code, Book II (SGB II), benefits are only granted from the date of application.
In accordance with the legal provision in Section 37 Paragraph 1 of the German Social Code, Book II (SGB II), basic income support for jobseekers is provided upon application. With the exception of cases where the responsible benefit provider is unwilling to provide services (Section 37 Paragraph 2 Sentence 2 SGB II), benefits are not provided for periods prior to the application, as expressly stipulated in Section 37 Paragraph 2 Sentence 1 SGB II. Therefore, the application date is decisive for the commencement of benefit payments. The Senate is convinced that this also applies to subsequent applications for benefits under the SGB II.
(a) The German Social Code, Book II (SGB II), contains no provision regarding when an application must be resubmitted or when the effects of a validly submitted application cease. Consequently, the general principle of Section 39 Paragraph 2 of the German Social Code, Book X (SGB X), remains in effect, namely that a procedural application continues to have effect and remains effective as long as the decision to grant benefits has not been withdrawn, revoked, otherwise rescinded, or rendered moot by the passage of time or in any other way (see Higher Social Court of North Rhine-Westphalia, judgment of April 17, 2008, L 9 AS 69/07, juris para. 27 with reference to Link, in: Eicher/Spellbrink, SGB II, 2nd edition 2008, para. 19 on Section 37 SGB II). In the case of subsequent applications, the application for benefits under the SGB II is therefore only effective until the point in time at which the effect of the decision to grant benefits based on this application ends. A person in need of assistance who seeks benefits under the German Social Code, Book II (SGB II), is therefore required to submit a renewal application pursuant to Section 37 of the SGB II for each subsequent period in order to enable the benefit provider to make a decision regarding the continued granting of benefits. Since the granting of assistance depends in particular on the current need for assistance and the current composition of the household, it can be assumed that the effect of the original application expires after the end of the benefit period, and thus a new renewal application is necessary (Link, ibid., Wagner, in: jurisPK – SGB II, 2nd edition, Section 37, marginal note 22; similarly, Higher Social Court of Berlin-Brandenburg, decision of March 16, 2009, L 29 AS 162/09 B, juris marginal note 4). Therefore, it is also irrelevant whether the benefit provider is aware of the continued need of the benefit recipient (see also LSG North Rhine-Westphalia, decision of April 17, 2009, L 19 B 63/09 AS, juris-Rdn. 5).
(b) The arguments put forward in support of the opposing view are ultimately unconvincing.
This applies first and foremost to the view that the case law of the Federal Social Court regarding the continued effect of an application for unemployment benefits (Federal Social Court, judgment of January 29, 2001, B 7 AL 16/00 R, in juris; Federal Social Court, judgment of November 29, 1990, 7 RAr 6/90, in juris; Federal Social Court, judgment of December 12, 1985, 7 RAr 75/84, in juris; and also Federal Social Court, judgment of November 14, 1985, 7 RAr 123/84, in juris) should be applied to the German Social Code, Book II (SGB II). This view overlooks the fact that the legal situation under the SGB II differs significantly from the earlier regulations governing the granting of unemployment benefits. While in Section 134 Paragraph 1 Sentence 1 No. 1 of the Employment Promotion Act (AFG) the application was a substantive requirement for entitlement (Federal Social Court, Judgment of November 29, 1990, loc. cit.; Ebsen, in: Gagel, AFG, Section 134 [1998] marginal note 68), the application requirement in Section 37 of the German Social Code, Book II (SGB II) is not a substantive requirement for entitlement (cf. Higher Social Court of Lower Saxony-Bremen, Judgment of March 11, 2008, L 7 AS 143/07, FEVS 60 [2009], p. 127 [128]; Frank, in: Hohm, Joint Commentary on the SGB II, Section 37 [2008] marginal note 5; Link, in: Eicher/Spellbrink, SGB II, 2nd ed. 2008, Section 37 marginal note 5). 17; Müller, in: Hauck/Noftz, SGB II, § 37 [2004] para. 5), but only a procedural requirement; the application requirement is not listed among the substantive requirements establishing entitlement under § 7 para. 1 and para. 2 SGB II (Link, in: Eicher/Spellbrink, SGB II, 2nd ed. 2008, § 37 para. 17; see also Frank, in: Hohm, Gemeinschaftskommentar zum SGB II, § 37 [2008] para. 5; Müller, in: Hauck/Noftz, SGB II, § 37 [2004] para. 5). The creation of an entitlement to unemployment assistance, however, was also substantively dependent on the filing of an application (Federal Social Court [BSG], judgment of November 29, 1990, loc. cit.; Ebsen, in: Gagel, AFG, § 134 [1998] para. 68; similarly for the entitlement to unemployment benefit pursuant to § 100 para. 1 AFG, Federal Social Court [BSG], judgment of June 29, 2000, B 11 AL 99/99 R, juris para. 14; see also Frank, in: Hohm, Joint Commentary on the German Social Code, Book II [SGB II], § 37 [2008] para. 5). If, however, the application is limited to its procedural function, its effect ends with the conclusion of the administrative proceedings; unlike substantive requirements, it cannot continue to have an effect.
Furthermore, according to the concept of the German Social Code, Book II (SGB II), multiple benefit decisions for unspecified benefit periods should not be issued in response to a single application. This is already evident from Section 41 Paragraph 1 Sentence 4 of the SGB II, which stipulates that benefits should be granted for six months at a time and paid monthly in advance. The case law of the Federal Social Court (BSG) (see, for example, the judgment of November 7, 2006, B 7b AS 14/06 R, in juris), according to which benefit decisions for subsequent periods do not become the subject of ongoing legal proceedings by analogy to Section 96 of the Social Courts Act (SGG), also indicates that the application for benefits under the SGB II loses its effect upon the issuance of the time-limited benefit decision and the expiration of the benefit period (see also the Higher Social Court of North Rhine-Westphalia, judgment of April 17, 2008, loc. cit., para. 28). In its decision of November 7, 2006, the Federal Social Court (BSG) stated verbatim: "The considerations of procedural economy cited in this jurisprudence are not convincing within the framework of the German Social Code, Book II (SGB II). Benefits under SGB II are regularly granted for shorter periods than under the German Social Code, Book III (SGB III) – Employment Promotion. Furthermore, the benefit providers under SGB II must not only take changes in the consideration of income and assets into account, but they must also consider these changes when determining the standard benefit amount. Consequently, subsequent benefit decisions more frequently raise new factual and legal questions than those arising under employment promotion law. Finally, under SGB II, benefit decisions are often issued not just for a single person, but for several members of a household. Considering all these special circumstances, an analogous application of Section 96 Paragraph 1 of the German Social Courts Act (SGG) to benefit decisions for subsequent periods under SGB II is generally not justified."
The risk associated with granting benefits for a period of one year (cf. Section 41 Paragraph 1 Sentence 5 of the German Social Code, Book II), which the Social Court cited as further justification for its legal opinion, is not apparent in this case. If the authority makes use of the option granted by the legislator to extend the benefit period to up to twelve months, it cannot demand a continuation application after only six months, which carries the risk of (partial) loss of the benefit entitlement if the application is submitted late. This is because the application only expires at the end of the benefit period, even if extended to twelve months. Therefore, a corresponding continuation application can only be demanded in these cases at the end of the extended benefit period.
In light of all this, the opinion of the 9th Senate of the Hessian State Social Court in its decision of July 25, 2006 (L 9 AS 83/06 ER), issued in preliminary injunction proceedings, cannot be followed. The opinion expressed therein regarding the continued validity of an application is not explained in detail. Insofar as reference is made to the opinion of Link, in: Eicher/Spellbrink, SGB II, 1st edition 2005, § 37 para. 19, it should be noted that Link no longer adheres to this initially held opinion in the current 2nd edition 2008; the same applies to the implementation guidelines of the Federal Employment Agency for the application of the SGB II, which were referenced by the 9th Senate. There, too, a new application is now required for each subsequent benefit payment (see section 37.3) – unlike in 2006.
If an application, including a subsequent application, for benefits under the German Social Code, Book II (SGB II), is not submitted in a timely manner, this results in a limited loss of rights, because benefits are not granted retroactively (Link, loc. cit., para. 17), but rather, according to Section 37 Paragraph 2 Sentence 1 SGB II, only from the date of application. In this case, as the defendant correctly determined, that date was February 13, 2006. Receipt of the application for continued benefits, signed by the plaintiff on January 30, 2006, by the defendant before February 13, 2006, cannot be established, nor is it alleged. Therefore, the plaintiff's argument that the defendant was aware before February 13, 2006, that the plaintiff would continue to be in need of assistance beyond December 31, 2005, is also unfounded. The declaration that is crucial for assessing this need for assistance was only submitted to the defendant on February 13, 2006. Only from this point onward could the defendant answer the question of his continued need for assistance with legal certainty.
Insofar as the Federal Social Court (BSG) ruled that, for applications for benefits under the law on needs-based basic income support for the elderly and those with reduced earning capacity (Basic Income Support Act (GSiG)), which was in effect until December 31, 2004, a follow-up application was unnecessary for a further benefit period (judgment of September 29, 2009 – B 8 SO 13/08 R, in juris), this remains irrelevant for the assessment of the application requirement under Section 37 of the German Social Code, Book II (SGB II). The BSG's interpretation is clearly based on the specific features of the application requirement under Sections 1 and 6 of the GSiG. The application should make the change in the benefit system from social assistance to basic income support for the elderly and those with reduced earning capacity – with primarily limited recourse to dependent relatives – dependent solely on the express wish of the eligible person in the form of an application, without otherwise making the provision of benefits more difficult than with subsistence assistance under the Federal Social Assistance Act (BSHG) by imposing a stricter application requirement (BSG, ibid.). Such a regulatory purpose and direct connection to social assistance for subsistence does not exist for the application requirement under Section 37 of the German Social Code, Book II (SGB II).
The plaintiff is also not entitled to reinstatement of the missed application deadline pursuant to Section 27 of the German Social Code, Book X (SGB X). This provision is inapplicable because the application requirement under Section 37 of the German Social Code, Book II (SGB II) is not a statutory deadline within the meaning of Section 27 Paragraph 1 Sentence 1 of the German Social Code, Book X (SGB X) (Link, loc. cit., marginal note 33a).
The plaintiff is likewise not entitled, by way of a social security restitution claim, to be placed in the position he would have been in had he submitted the application for continued benefits in a timely manner. It is recognized that the benefit provider must inform the recipient of assistance in a timely manner that, after the expiration of the benefit period, he must submit a follow-up application for benefits under Book II of the German Social Code (SGB II) (Link, ibid., para. 19). According to Section 37 of Book II of the German Social Code (SGB II), this application is generally not subject to any formal requirements. The application can therefore be submitted in writing, orally, or by telephone. There is also no obligation to use specific application forms (Link, ibid., para. 20). Whether the defendant adequately complied with this requirement by prominently displaying the notice in the decision of May 23, 2005 (page 2) need not be determined here, because the plaintiff culpably failed to take note of the notice in any case. Consequently, any breach of the duty to advise could not have been the cause of the plaintiff's subsequent conduct.
The plaintiff's claim that he did not see this notice is also invalid. It is the responsibility of the recipients of the notices to read their contents carefully and completely. Furthermore, it cannot be the responsibility of a benefit provider to inquire with every recipient of a benefit notice whether they have read and understood all the information contained therein. On the contrary, it would have been the plaintiff's responsibility to clarify any remaining ambiguities—despite this clear notice—by simply contacting the defendant before the end of the benefit period on December 31, 2005. Therefore, even without a prior application for continued payment from the plaintiff, the defendant did not create any legitimate expectation of continued benefits by granting benefits for the preceding benefit period from July 1, 2005, to December 31, 2005, through the notice of May 23, 2005. Rather, the plaintiff – due to the clear indication in this decision – could no longer assume such a procedure would be followed in the future. For the preceding period, however, the defendant also acted without a follow-up application because the A-City Employment Agency had not yet informed the plaintiff of the necessity of a follow-up application in its previous decision of December 23, 2004.
3.1 – Hessian State Social Court L 6 AS 515/09 B ER 15.01.2010, Decision
4.1 – North Rhine-Westphalia State Social Court L 19 B 277/09 AS 21.12.2009 legally binding, decision
It is not sufficiently clarified in literature and case law whether a violation by a recipient of basic income support for job seekers against his obligations imposed on him under Section 1 Sentence 2 of the availability order may be sanctioned by the loss of the benefit entitlement.
According to Section 7 Paragraph 4a of the German Social Code, Book II (SGB II), benefits are not granted to anyone who, without the consent of their personal contact person, remains outside the area defined in the Accessibility Order (EAO) of October 23, 1997 (ANBA 1997, 1685), as amended by the order of November 16, 2001 (ANBA 2001, 1476); the other provisions of this order apply accordingly. According to the applicant's own statements, which are not disputed by the respondent, she was not at her residence during the period in question, but rather in the vicinity of the respondent's office. This includes all locations from which the benefit recipient can reach the agency daily without undue effort (see Hänlein in Gagel, SGB II III, Section 7 SGB II, marginal note 84b). This is not in doubt here, since the daughter's apartment, where the applicant stayed, is also located in E.
However, the applicant violated the obligation under Section 1 Sentence 2 EAO, according to which the recipient of benefits must ensure that the ARGE can reach him personally by mail on every working day at his residence or habitual abode at the address (apartment) he has specified. However, it is controversial and not yet sufficiently clarified in case law whether such a violation leads to the loss of entitlement to benefits (affirmative: Hackethal in jurisPK-SGB II, § 7 para. 56; Brühl/Schoch in LPK-SGB II, 3rd ed., § 7 para. 111; negative: Eicher/Spellbrink, SGB II, 2nd ed., § 7 para. 80; critical also: Winkler, info also 2007, 3, 7; left open by LSG NRW decision of 12.01.2009 – L 20 B 135/08 AS – para. 6 ff.).
Furthermore, if the benefit award is found to be unlawful, the decision to revoke the benefit pursuant to Section 45 Paragraph 1 of the German Social Code, Book X (SGB X) is at the discretion of the authority (may be revoked), unless the recipient of the benefit acted culpably within the meaning of Section 45 Paragraph 2 Sentence 3 of the SGB X (Section 40 Paragraph 1 Number 1 of the German Social Code, Book II (SGB II) in conjunction with Section 330 of the German Social Code, Book III (SGB III)). Whether the latter is the case cannot be conclusively determined here, particularly considering the applicant's state of health.
If the prospects of success in the main proceedings are therefore uncertain, the consequences that would arise without the requested order must be weighed (see Meyer-Ladewig/Keller/Leitherer, loc. cit.). At the time of its decision, the Senate assesses these consequences in such a way that the applicant currently faces no significant disadvantages without the requested preliminary legal protection that would necessitate ordering the suspension of the enforcement of the order.
5. Social Court Kassel S 6 AS 373/09 ER 21.01.2010, Decision
A sanction notice is unlawful if supplementary benefits in kind or monetary benefits have not been provided simultaneously. The decision regarding these supplementary benefits in kind or monetary benefits must be made ex officio. A separate application is not a prerequisite for the decision or the provision of benefits. Such a requirement for an application does not arise from the law. Furthermore, the social security relationship established by the benefit application is neither terminated nor interrupted by the sanction decision (Berlit in: Münder (ed.), LPK-SGB II, 3rd ed. 2009, § 31 para. 106). The German Social Code, Book II (SGB II), does not link the sanction decision and the decision regarding supplementary benefits in terms of timing, so that the decision on granting supplementary benefits can follow the sanction decision. The sanction decision and the decision on supplementary benefits pursuant to Section 31 para. 3 sentence 6 of the SGB II are each independent administrative acts.
The German Social Code, Book II (SGB II), does not link the sanction decision and the decision on supplementary benefits in terms of timing, so that the decision on granting supplementary benefits can follow the sanction decision in time.
The decision regarding supplementary benefits in kind must be made by the benefit provider ex officio.
A separate application from the person in need is not required.
In any case, in cases where one or more sanctions result in the elimination of a very large part of the standard benefit for the benefit period, the discretion granted to the benefit provider under Section 31 Paragraph 3 Sentence 6 of the German Social Code, Book II (SGB II) is reduced to the extent that it must also decide on the supplementary benefits at the same time as the sanction decision.
If unemployment benefit II is reduced by more than 30 percent of the standard benefit rate applicable under Section 20, the responsible benefit provider may, pursuant to Section 31 Paragraph 3 Sentence 6 of the German Social Code, Book II (SGB II), provide supplementary benefits in kind or benefits of equivalent value to an appropriate extent. The decision regarding the sanction, on the one hand, and the granting of supplementary benefits in kind or benefits of equivalent value, on the other hand, are separate administrative acts (Higher Social Court of North Rhine-Westphalia, decision of September 9, 2009, L 7 B 211/09 AS ER, juris; Social Court of Kassel, decision of November 18, 2009, S 3 AS 322/09 ER, juris). The German Social Code, Book II (SGB II), does not link the sanction decision and the decision regarding supplementary benefits in terms of timing, so that the decision on granting benefits in kind can follow the sanction (Higher Social Court of North Rhine-Westphalia, decision of September 9, 2009, L 7 B 211/09 AS ER, juris; Social Court of Kassel, decision of November 18, 2009, S 3 AS 322/09 ER, juris). The decision regarding supplementary benefits in kind or benefits of monetary value is made ex officio. A separate application is not a prerequisite for the decision or the provision of benefits. Such an application requirement does not arise from the law. Furthermore, the social security relationship established by the application for benefits is neither terminated nor interrupted by the sanction decision (Berlit in: Münder (ed.), LPK-SGB II, 3rd ed. 2009, § 31 para. 106). Whether the benefit provider is always constitutionally obligated to simultaneously decide on a sanction exceeding 30 percent of the relevant standard benefit in accordance with Section 31 Paragraph 3 Sentence 6 of the German Social Code, Book II (SGB II) (see, presumably, Social Court Kassel, Decision of November 18, 2009, S 3 AS 322/09 ER, juris, paragraphs 24 et seq.) need not be decided in the present case. The wording of Section 31 Paragraph 3 Sentence 6 of the SGB II makes it clear that the granting of these benefits, provided the factual prerequisites are met, is at the discretion of the benefit provider. The scope of discretion granted to the benefit provider decreases with increasing sanction level (see Higher Social Court Berlin-Brandenburg, Decision of December 16, 2008, L 10 B 2154/08 AS ER, juris, paragraph 10). In any case, in cases where one or more sanctions result in the loss of a very large part of the standard benefit for the benefit period, the discretion granted to the benefit provider is reduced to such an extent that it only acts lawfully if it grants the benefits provided for in lieu of the cash benefits and makes this decision simultaneously with the sanction decision (see also: LSG Berlin-Brandenburg, decision of 16.12.2008, L 10 B 2154/08 AS ER).
This requirement of such a constitutionally compliant exercise of discretion in the application of Section 31 Paragraph 3 Sentence 6 of the German Social Code, Book II (SGB II) arises (see also: Social Court Kassel, Decision of November 18, 2009, S 3 AS 322/09 ER, para. 26, as well as: Higher Social Court North Rhine-Westphalia, Decision of September 9, 2009, L 7 B 211/09 AS ER, paras. 12 ff.; Higher Social Court Berlin-Brandenburg, Decision of December 16, 2008, L 10 B 2154/08 AS ER) from the significance of the legal positions that the sanction decisions affect, and in particular from the constitutionally guaranteed human dignity (Article 1 Paragraph 1 of the Basic Law (GG)) and the state's obligation to protect the physical integrity of "its" citizens (Article 2 Paragraph 2 GG). The granting of the standard benefit triggers The legislature enshrines the right to guarantee a socio-cultural minimum standard of living for those in need and, by providing this as a cash benefit, enables them to make modest choices. The legislature is not generally prohibited from limiting this right depending on the situation, i.e., in the event of the fulfillment of sanctionable offenses. However, those in need must in any case retain a level of support sufficient for their physical existence (so-called physical minimum standard of living; cf. Federal Social Court [BSG], Judgment of April 22, 2008, B 1 KR 10/07; Higher Social Court [LSG] North Rhine-Westphalia, Decision of December 22, 2009, L 7 B 409/09 AS ER; Higher Social Court [LSG] Berlin-Brandenburg, Decision of December 16, 2008, L 10 B 2154/08 AS ER; Social Court [SG] Kassel, Decision of November 18, 2009, S 3 AS). 322/09 ER; see, regarding the critique of this concept and for an inviolable guarantee of the socio-cultural minimum standard of living: Hessian State Social Court, referral decision of October 29, 2008, L 6 AS 336/07, para. 96 et seq.). It follows – as already explained – that the scope for discretion under Section 31 Paragraph 3 Sentence 6 of the German Social Code, Book II (SGB II), decreases with increasing sanction level.
Since the respondent reduced the applicant's benefits under the German Social Code, Book II (SGB II), by a total of 80 percent of the applicable standard benefit rate on November 16, 2009, through three sanction notices, there was a significant risk that the applicant would be unable to purchase food. In light of constitutional requirements, it was therefore an abuse of discretion to refer the applicant in the sanction notice to an application for supplementary benefits. Given the severity of the sanction, the court is convinced that the respondent was obligated to decide on the supplementary benefits simultaneously with the sanction notice. Furthermore, the legal statement in the notice that the supplementary benefits are only granted upon application is legally incorrect.
Note:
according to which the absence of a decision on the granting of supplementary benefits in the case of sanctioning breaches of duty up to and including the termination of benefits does not lead to the illegality of the sanction notice.
