There is still no ruling by the highest court as to whether and under what conditions general advice and support or medical and psychological assistance justify an entitlement to an additional needs allowance under Section 21 Paragraph 4 of the German Social Code, Book II (SGB II).
The plaintiff is not entitled to an additional needs allowance for employable disabled persons in need of assistance. According to Section 21 Paragraph 4 Sentence 1 of the German Social Code, Book II (SGB II), employable disabled persons in need of assistance who receive benefits for participation in working life pursuant to Section 33 of the German Social Code, Book IX (SGB IX), as well as other assistance to obtain suitable employment or integration assistance pursuant to Section 54 Paragraph 1 Sentence 1 Numbers 1-3 of the German Social Code, Book XII (SGB XII), are entitled to an additional needs allowance amounting to 35% of the standard benefit applicable under Section 20 of the SGB II. If the requirements are met, there is a legal entitlement to this additional needs allowance. Therefore, in the opinion of the Senate, it is irrelevant whether the plaintiff can specifically and individually demonstrate and, if necessary, prove a disability-related additional needs allowance.
The plaintiff fulfilled the eligibility requirements of Section 7 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II) during the period in dispute, a fact which has not been contested by the parties. During this period, the plaintiff was also capable of working, as defined in Section 7 Paragraph 1 Sentence 1 Number 2 and Section 8 Paragraph 1 of the SGB II. The plaintiff's application for a full or partial disability pension was rejected by the German Pension Insurance (DRV Bund). There is also no doubt regarding the plaintiff's disability as defined in Section 2 of the German Social Code, Book IX (SGB IX), particularly due to the determination of a degree of disability (GdB) of 60 or 70.
The application of Section 21 Paragraph 4 of the German Social Code, Book II (SGB II), however, presupposes that the benefits specified in this provision are "provided." The mere possibility of an entitlement to a participation benefit or an integration assistance benefit (cf. Federal Social Court [BSG], Judgment of June 25, 2008, B 11b AS 19/07 R, para. 22, Lang/Knickrehm in Eicher/Spellbrink, SGB II, Section 21, para. 41) is not sufficient to establish an additional need. The requirements for additional needs are only met if the eligible person actually participates in a measure under Section 33 of the German Social Code, Book IX (SGB IX) (see Federal Social Court (BSG), judgment of June 25, 2008, loc. cit.; Higher Social Court (LSG) of North Rhine-Westphalia, judgment of July 16, 2009, L 7 AS 65/08; Higher Social Court (LSG) of Berlin-Brandenburg, decision of November 24, 2008, L 29 B 414/08 AS NZB; Loose in GK-SGB II, Section 21, marginal note 28). According to its apparent purpose, the recognition of the additional needs allowance regulated in Section 21 Paragraph 4 of the German Social Code, Book II (SGB II) therefore requires participation in a regularly scheduled special measure that is generally suitable to trigger additional needs for the person concerned (Federal Social Court (BSG), judgment of June 25, 2008, loc. cit.).
During the period in dispute, the plaintiff demonstrably did not participate in any special, regularly scheduled measure within the meaning of Section 21 Paragraph 4 of the German Social Code, Book II (SGB II). He only participated in a measure offered by the Federal Employment Agency (BB) from June 21 to June 28, 2006. For the duration of his participation in this measure, the defendant granted him additional needs benefits pursuant to Section 21 Paragraph 4 of the SGB II. The potentially relevant periods of participation in regularly scheduled measures (July 2 to December 14, 2007 – "Media Operator" course at D, supported and placed by the Federal Employment Agency (BfE) based on the placement agreement of September 27, 2007, and the MAE measure from June 1 to November 2, 2008) are not to be decided here.
The plaintiff's psychotherapeutic treatment from January 10, 2006 (see certificate from the certified psychologist, psychological psychotherapist W, dated October 7, 2007) does not constitute participation in a special, regularly scheduled program. It is a benefit provided by statutory health insurance in the form of medical treatment pursuant to Section 27 Paragraph 1 Sentence 2 No. 1 of the Fifth Book of the German Social Code (SGB V), which, according to the structure of the SGB, cannot be considered a benefit for participation in working life pursuant to Section 33 of the Ninth Book of the German Social Code (SGB IX). This also applies even if the treatment by psychotherapist Weine were considered a medical rehabilitation benefit. Medical rehabilitation benefits are covered by Section 26 of the SGB IX and must be distinguished from benefits for participation in working life pursuant to Section 33 of the SGB IX or other assistance pursuant to Section 54 Paragraph 1 Sentence 1 Nos. 1 to 3 of the Twelfth Book of the German Social Code (SGB XII). While the benefits pursuant to Section 33 Paragraph 6 Sentence 1 of the SGB IX also include psychological assistance, this does not apply in this context. To define and limit the broadly worded Section 33 Paragraph 1 Sentence 1 of the German Social Code, Book IX (SGB IX) ("the necessary benefits"), the Senate is convinced that an additional requirement for entitlement to an additional needs allowance under Section 21 Paragraph 4 of the German Social Code, Book II (SGB II) is that the benefits under Section 33 SGB IX or other assistance under Section 54 Paragraph 1 Sentence 1 Numbers 1 to 3 of the German Social Code, Book XII (SGB XII) have been granted by administrative act (see Münder in LPK-SGB II, 2nd edition, Section 21, marginal note 21). The Federal Social Court (BSG) left this requirement open in its judgment of June 26, 2008 (loc. cit.).
The general advice and support provided to the plaintiff by the defendant does not constitute participation in a specific, regular measure within the meaning of Section 21 Paragraph 4 of the German Social Code, Book II (SGB II). Furthermore, general advice and support is the duty of every benefit provider under the German Social Code (Sections 13 and 14 of the First Book of the German Social Code) and, in the case of benefits under SGB II, is additionally a consequence of the primary goal of the quickest possible (re)integration of employable persons in need of assistance into the labor market (see Federal Social Court, Judgment of September 30, 2008, B 4 AS 19/07 R = SozR 4-4200 § 11 No. 14) and therefore cannot be a benefit under Section 33 Paragraph 3 No. 1 of the German Social Code, Book IX (SGB IX) (assistance to obtain employment, including advice and placement services).
Note: North Rhine-Westphalia State Social Court L 7 AS 65/08 16.07.2009, judgment pending before the Federal Social Court – B 4 AS 59/09 R-
The one-year support provided by the integration service is a service for participation in working life within the meaning of Section 21 Paragraph 4 Sentence 1 of the German Social Code, Book II (SGB II).
1.1 – Berlin-Brandenburg State Social Court L 32 AS 1639/09 29.12.2009, Judgment
Hot water preparation costs are only not considered accommodation costs under Section 22 Paragraph 1 of the German Social Code, Book II (SGB II), to the extent that they are already included as a lump sum in the standard allowance, even if they are to be paid separately to the landlord but are not to be borne according to actual consumption, but rather as a fraction of the total consumption according to the living space share
According to the jurisprudence of the Federal Social Court, from which, in the view of the deciding panel here, there is no reason to deviate in favor of the defendant, separately recorded costs for hot water preparation are only deductible from the ancillary costs payable to the landlord and not to be reimbursed as housing costs within the meaning of Section 22 Paragraph 1 of the German Social Code, Book II (SGB II), if the actual costs are recorded. Only then—and this is the decisive argument—is it within the power of the person in need of assistance to control their hot water consumption and to try to manage within the limits provided by the standard benefit (see Federal Social Court, Judgment of February 19, 2009 – B 4 AS 48/08 R – Paragraph 25).
The view presented by the Berlin Senate Department for Integration, Labor and Social Affairs in the cited argumentative aid, that hot water preparation costs can only be listed separately in operating cost statements if they can be specifically recorded, is a mere assertion and empirically incorrect. The present case demonstrates that while a separate calculation of hot water costs may be agreed upon in the tenancy agreement, the specific allocation must be determined not according to actual consumption, but rather according to the square meter share of total consumption. As explained above, there is no recording of actual costs in this case, as defined by the Federal Social Court's (BSG) jurisprudence (cf. for the legally mandated standard case of billing according to the Heating Costs Ordinance, which in Section 8 stipulates that a maximum of 70% of the costs of operating a central hot water supply system can be allocated according to recorded hot water consumption, while the remaining costs must be allocated according to living space or usable area: Berlin-Brandenburg Higher Social Court, Judgment of May 26, 2009 – L 14 AS 1830/08 –).
The defendant is correct, however, in asserting that this case law of the Federal Social Court (BSG) is not without its contradictions. On the one hand, the costs for hot water supply are to be covered by the standard allowance, even though they are generally part of the rent payable to the landlord. This contrasts with the case law that the costs for other rented items and services, for which amounts are also payable to the landlord by contractual agreement (cable access fees, furniture surcharges, etc.), are to be considered housing costs, even though the expenses for such goods and services are also included in the standard allowance (see BSG, loc. cit., para. 16 et seq. for cable access fees and furniture surcharges). This would rather support the view of the Saxon State Social Court (judgment of March 29, 2007 – L 3 AS 101/06 –) that the costs payable to the landlord for hot water preparation should generally be considered housing and heating costs. However, the defendant's argument is countered by the Federal Social Court (BSG) (judgment of February 27, 2008 – B 14/11 b AS 15/07 – para. 23), which states that the costs of hot water preparation are not generally included in the standard benefit, but only up to the amount allocated for this purpose within the standard rate. If this were disregarded, the recipients would receive double benefits. This specific inclusion, however, contradicts the principle of the standard benefit, which is precisely to provide a lump sum payment regardless of the specific needs and requirements of the recipient. According to the case law of the 14th Senate of the Federal Social Court (see decision of 16 July 2009 – B 14 AS 121/08 B – para. 9), electricity costs that are not used for heating should not be part of the accommodation costs, even if – for example, in the case of subletting – the electricity costs are to be paid to the landlord and the amount included in the standard allowance for electricity is deducted.
Insofar as the Social Court calculated the relevant flat-rate hot water costs based on the EVS 03 (Income and Expenditure Survey 2003), the Senate does not follow this method, at least for the period up to June 2008. It maintains its view that the calculation established by the Federal Social Court in the aforementioned judgment of February 27, 2008, can simply be adjusted for inflation (see decisions of July 29, 2008 – L 32 B 1458/08 AS ER – and of December 9, 2008 – L 32 B 2223/08 AS ER –; similarly, now Federal Social Court, judgment of September 22, 2009 – B 4 AS 8/09 R – paragraphs 28 et seq.). However, the differing calculation does not benefit the defendant as the appellant.
The decision on costs is based on Section 193 of the Social Court Act (SGG). The Social Court's (SG) decision to impose costs on the defendant due to fault pursuant to Section 192 Paragraph 1 No. 2 SGG was to be overturned. It is part of the cost decision, which the Higher Social Court was required to (re)decide ex officio. The defendant did not continue the litigation abusively within the meaning of Section 192 Paragraph 1 Sentence 1 No. 2 SGG, even though the Social Court correctly considered the question of the specific deduction for hot water preparation to be settled by the Federal Social Court's (BSG) case law for the specific variant of the case. As explained, the defendant may point to contradictions in this case law. Section 192 SGG does not prevent a party from challenging a ruling of the highest court. The quality of the arguments presented is generally irrelevant: Abusiveness requires the recognition of the futility of the challenge. Furthermore, the defendant's argumentation was at least partially evident from the statements in the notice of objection, so that it cannot be assumed that he persisted in pursuing the claim despite recognizing its complete hopelessness.
1.2 – Berlin-Brandenburg State Social Court L 32 AS 1592/09 28.12.2009, Decision
Accommodation costs; rent; operating costs; operating cost statement; additional payment
Additional payments for operating costs relating to a period in which the benefit provider also had to cover unreasonable costs within the meaning of Section 22 Paragraph 1 of the German Social Code, Book II (SGB II), are considered costs of accommodation under Section 22 Paragraph 1 Sentence 1 of the SGB II, even if the ongoing costs can no longer be fully borne.
The defendant must cover the operating cost and heating cost arrears for the year 2007 as costs of accommodation and heating in accordance with Section 22 Paragraph 1 of the German Social Code, Book II (SGB II).
The Social Court (SG) has already correctly answered the question raised by the defendant in the negative. Reference is made to the reasoning pursuant to Section 153 Paragraph 2 of the Social Court Procedure Act (SGG). It correctly stated first that a landlord's demand for additional payment is part of the current need in the month it is due (as now also expressly stated by the Federal Social Court (BSG), judgment of July 2, 2009 – B 14 AS 36/08 R – para. 16). It further correctly applied Section 22 Paragraph 1 Sentence 3 of the German Social Code, Book II (SGB II). According to this provision, housing expenses exceeding what is reasonable in the individual case must be considered as a need for as long as it is not possible or reasonable for the person in need or the household to reduce these expenses, but generally for no longer than six months. In its decision of September 19, 2008 (B 14 AS 54/07, para. 22), cited by the Social Court, the Federal Social Court (BSG) held that this provision also applies to heating costs, even though its wording refers only to accommodation. The Senate deciding this case also concurs with this view. The provision contains a reasonableness rule intended to prevent benefit recipients from being forced to abandon their current residence immediately upon becoming dependent on assistance. For a transitional period, the recipient's primary residence is preserved, even if the costs are unreasonable. The basic need for housing, protected by Section 22 of the German Social Code, Book II (SGB II), includes not only specific premises but also an appropriate room temperature (as stated verbatim by the BSG, ibid.). As the Social Court correctly stated, the protected premises in this sense also include the benefits of use for which the other operating costs must be incurred. For example, living conditions include the fact that the apartment is accessible via a lit stairwell and that the water supply works.
If the authorities accept the housing costs as reasonable, the recipient can assume that the housing costs will be fully covered (Federal Social Court, judgment of May 7, 2009 – B 14 AS 14/08 R – para. 29). The decisive factor is whether the person concerned can or could reduce the expenses. Obligations already incurred (net rent, uncontrollable operating costs) and consumption already incurred (consumption-based heating and other costs such as water costs) cannot be reduced retroactively. Housing and heating costs are incurred on a period-by-period basis for the respective current use, even if the landlord only bills for these costs later and any additional charges only become due later.
The plaintiff could therefore rely on the fact that both the net rent and the so-called cold operating costs, as well as the heating costs, would be covered for the entire year of 2007. It follows that the Job Center must cover all costs actually incurred in 2007, even if – as in this case with regard to the disputed additional operating and heating costs – they were only due at a point in time (here, at the earliest, January 2009) when the unsuitability of the apartment may have become apparent.
The fact that the plaintiff was entitled to rely on the appropriateness of the housing costs is evident from the grant notices. According to the defendant, the plaintiff only had sufficient time to seek alternatives from April 2008 onwards. In light of the grant notices and amendments issued in 2007, it is unnecessary to determine whether and what legal effects the legally binding decision of July 12, 2006, as amended by the appeal decision of September 26, 2006, still had as an administrative act. In any case, for the period 2007, any potential legal effect of this decision was superseded by the aforementioned grant notices and amendments.
2. State Social Court of Baden-Württemberg L 1 AS 900/08 21.07.2009, Judgment
A reformatio in peius (“worsening”) in the objection decision does not exist if, in a dispute over the amount of the costs within the framework of a single subject matter (here: costs of accommodation according to § 22),
If, under the German Social Code, Book II (SGB II), a single calculation element results in a less favorable outcome, but ultimately a back payment is awarded, a separate hearing is not required for this calculation element in the appeal proceedings.
3. State Social Court of North Rhine-Westphalia L 7 AS 92/07 12.11.2009, Judgment
Electricity costs, insofar as they exceed the share included in the standard benefit pursuant to Section 20 Paragraph 1 of the German Social Code, Book II (SGB II), must be borne by the person in need of assistance.
It is unnecessary to determine whether the electricity costs claimed by the plaintiff for operating the gas-fired central heating system are to be considered "hidden heating costs" and therefore attributable to heating costs rather than household electricity. Even if they are heating costs, the Senate is convinced that the monthly amount due to the plaintiff does not exceed the €6.22 that the defendant should have deducted for hot water preparation from the costs of accommodation and heating, taking into account the case law of the Federal Social Court (regarding the amount, see Federal Social Court, judgment of February 27, 2008, B 14/11b AS 15/07, SozR 4-4200 § 22 No. 5).
According to Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), benefits for accommodation and heating must be covered in the amount of the actual expenses, provided they are reasonable. In principle, therefore, Section 22 Paragraph 1 SGB II establishes an entitlement to the reimbursement of the full and actual costs for hot water preparation, within the bounds of reasonableness. However, this entitlement to reimbursement of accommodation costs only exists to the extent that the need is not already covered by other means. This is the case here. The costs of hot water preparation are already included in the standard benefit according to Section 20 SGB II. Section 20 Paragraph 1 SGB II describes which needs are covered by the standard benefit. However, the relevant version of Section 20 Paragraph 1 SGB II was not entirely clear insofar as hot water preparation or household energy was not explicitly mentioned in the list. However, even under the provisions of Section 20 Paragraph 1 of the German Social Code, Book II (SGB II aF), the prevailing opinion in the case law of the social courts and in legal literature assumed that the standard benefit included the costs for household energy (Federal Social Court, judgment of 27 February 2008, loc. cit. with further references).
In cases where a separate and specific system for hot water preparation is (technically) possible, the Federal Social Court (BSG) ruled that "it is the responsibility and right to self-determination of the recipient of basic income support to manage their hot water consumption. They can then decide for themselves to what extent they wish to manage with their allocated monthly 'budget' of €6.22 (standard benefit West) or €5.97 (standard benefit East) for hot water costs" (BSG, Judgment of February 27, 2008, B 14/7b 64/06 R, SozR 4-4200 § 21 No. 2; BSG Judgment of March 19, 2008, B 11b AS 23/06 R, SozR 4-4200 § 24 No. 3).
The Federal Social Court's (BSG) jurisprudence thus establishes that electricity costs, insofar as they exceed the portion included in the standard benefit according to Section 20 Paragraph 1 of the German Social Code, Book II (SGB II), must be borne by the person receiving assistance. Consequently, they must manage their own budget independently, just as with the other needs listed in Section 20 Paragraph 1 of the SGB II.
While the 500 kilowatt-hours claimed by the plaintiff for operating the heating system would result in a monthly cost of €7.61 (500 x 18.27 cents = 9135 cents = €91.35 / 12), the Senate is convinced that 500 kilowatt-hours per year is unrealistic for operating the heating system. The kilowatt-hours used by the plaintiff would represent more than a quarter of the total annual electricity costs, even though the heating system is not electrically powered. According to the invoices from N dated 18.02.2005 and 21.02.2006, a total of 1,765 kWh of electricity (gas: 13,583 kWh) was consumed between 30.01.2004 and 02.02.2005, and a total of 1,946 kWh (gas: 14,118 kWh) was consumed between 02.02.2005 and 03.02.2006.
The plaintiff's landlord based her calculations on only 72 kWh (120 days x 6 hours x 100 watts = 72,000 watts = 72 kWh) and calculated an annual amount of €13.15 (72 kWh x 18.27 cents - GWG electricity tariff - 1315.44 cents = €13.15). While she based her calculation on an incorrect power consumption of 100 watts, taking into account the 110 watts that the plaintiff had already used in his calculations (brief dated February 9, 2009), the resulting annual amount of 79.2 kWh (120 days x 6 hours x 110 watts = 79,200 watts = 79.2 kWh) is only €14.47 (79.2 kWh x 18.27 cents - GWG electricity tariff - 1446.98 cents).
Even with what the Senate considers a very generous estimate for the plaintiff's annual heating season (§ 202 SGG in conjunction with § 287 Code of Civil Procedure -ZPO-) of 240 days and 15 hours per day, the deduction of €6.22 for hot water preparation deemed permissible by the Federal Social Court (BSG) is not reached. Based on 396 kWh (240 days x 15 hours x 110 watts = 396,000 watts), the annual amount is calculated at €72.35 (396 kWh x 18.27 cents - GWG electricity tariff-) and the monthly amount at €6.03. Only with an unrealistic assumption of 408.54 kilowatt hours would costs be incurred in the amount that the defendant could have deducted with regard to hot water preparation (408.54 x 18.27 cents = 7464.025 cents = 74.64 euros : 12 = 6.22 euros).
Since hot water is supplied via the gas heating system, the plaintiff cannot claim any additional electricity costs for this as costs of accommodation and heating; the electricity costs incurred for this are covered by the standard benefit.
4. Bavarian State Social Court L 11 AS 643/09 B ER 19.11.2009, Decision
According to Section 11 Paragraph 1 of the German Social Code, Book II (SGB II), receipts in cash or in kind are generally to be considered income, provided there is a need-related actual possibility of using them, i.e., they are "readily available funds" that can be exchanged for money at any time (see Brühl in LPK-SGB II, 3rd edition 2009, Section 11, marginal note 24). The possible realization of claims is not equivalent to the actual receipt of funds; therefore, the imputation of fictitious income is not permissible.
For benefits to be granted solely as a loan, it is insufficient that the applicant possesses assets if, at the time the loan is to be granted, it is not foreseeable whether they will be able to derive any economic benefit from these assets. Rather, a general unusability within the meaning of Section 12 Paragraph 1 of the German Social Code, Book III (SGB III) exists if it is entirely uncertain when a condition necessary for the assets to be usable will be met (see Federal Social Court, 14th Senate, judgment of January 27, 2009, Case No. B 14 AS 42/07 R, with further references).
5. Social Court Karlsruhe S 4 SO 1302/09 27.01.2010, Judgment
Pain and suffering compensation and the income derived from it are generally not taken into account when calculating social assistance benefits. This applies to proof of assets derived from pain and suffering compensation in cases of mixed pain and suffering and damages payments.
It is within the injured party's discretion how they use the amounts resulting from a damaging event to compensate for non-material damages (Federal Social Court, judgment of April 15, 2008, B 14/7b AS 6/07 R, JURIS para. 19; for a comparable assessment of "saved" blind person's allowance, see Federal Social Court, judgment of December 11, 2007 – B 8/9b SO 20/06 R -).
5.1 – Social Court Karlsruhe S 4 SO 5333/08 27.01.2010
One-off grants from social assistance funds are regularly excluded for tax consulting costs.
Regarding the prerequisites for the justified use of public funds in social assistance according to § 73 SGB XII
According to Section 34 Paragraph 1 of the German Social Code, Book XII (SGB XII), debts of benefit recipients can be assumed in exceptional cases if this is justified to secure their accommodation or to alleviate a comparable emergency. They should be assumed if this is justified and necessary and if homelessness would otherwise be imminent (Section 34 Paragraph 1 Sentence 2 SGB XII). It is obvious that tax advisory costs do not constitute costs for securing accommodation. However, it is difficult to define in general terms when an emergency comparable to the (imminent) loss of accommodation exists. The Administrative Court of Mannheim (FEVS 44, 160, 166) focused on whether an emergency exists that affects the "existing material sphere of existence" of the benefit recipient. This is the case, for example, when the supply of energy to a household – electricity or heating – is "in question" (cf. Higher Administrative Court of Münster, FEVS 51, 89, 91), i.e., when a disconnection of electricity and heating supply is threatened or has already occurred due to existing debts or other outstanding payment obligations to an energy supplier (see also Higher Social Court of Bavaria, FEVS 57, 445). The same applies if the water supply to living space is threatened or if connection to the municipal water supply needs to be secured (cf. Higher Administrative Court of Lüneburg, FEVS 42, 92). Likewise, according to higher court rulings, an emergency situation exists if... The conditions of Section 34 Paragraph 1 Sentence 1 of the German Social Code, Book XII (SGB XII) are met if the beneficiary is threatened with the loss of furniture or furnishings purchased on credit and would be entitled to benefits under Sections 31 and 37 of the SGB XII if they were to lose essential household items. In contrast, higher court rulings deny a situation of hardship affecting the "sphere of existence" when the beneficiary seeks to assume the repayment of debts intended to secure a pension entitlement (see Administrative Court of Baden-Württemberg, FEVS 44, 160) or the assumption of gambling debts (see Higher Administrative Court of Hamburg, FEVS 34, 318). This illustrative list demonstrates that a comparable situation of hardship within the meaning of Section 34 Paragraph 1 Sentence 1 of the SGB XII requires a connection to securing accommodation or the habitability of accommodation. Only in this specific case has the legislator permitted an exception to the principle of immediacy in social assistance aimed at acute emergencies – namely, no assumption of debts from social assistance funds. Debts resulting from outstanding tax advisory fees are unrelated to accommodation costs and therefore cannot, in principle, fulfill the requirements for a comparable emergency situation within the meaning of Section 34 Paragraph 1 Sentence 1 of the German Social Code, Book XII (SGB XII).
Pursuant to Section 73 of the German Social Code, Book XII (SGB XII), the defendant, as the responsible social welfare agency, may also provide benefits in other life situations if they justify the use of public funds. Assistance in other life situations under Section 73, sentence 1, SGB XII supplements the catalog of assistance listed in Section 8 SGB XII. According to this, social assistance includes assistance for subsistence, basic income support for the elderly and those with reduced earning capacity, assistance with health care, integration assistance for people with disabilities, long-term care assistance, assistance in overcoming particular social difficulties, and assistance in other life situations, as well as the necessary advice and support in each case. The catch-all provision of Section 73 SGB XII is necessary to fulfill the mandate of social assistance to address any situation that violates human dignity (cf. regarding the predecessor provision in Section 27 of the Federal Social Assistance Act – BSHG –: Federal Administrative Court – BVerwGE 29, 235, 236). Other life situations i. The conditions for the provision of Section 73 of the German Social Code, Book XII (SGB XII) are only met if the assistance situation cannot be thematically assigned to any of the assistance listed in Section 8 SGB XII and, at the same time, a typical social welfare need exists. According to the jurisprudence of the Federal Social Court (judgment of June 25, 2008, B 11b AS 19/07 R, para. 28), the application of Section 73 SGB XII is only justified if a kind of daily need exists. However, the provision must not become a general fallback regulation for benefit recipients. Rather, what is required is the existence of a special need that bears a certain resemblance to the needs specifically regulated in Sections 47–74 of the German Social Code, Book XII (SGB XII), and thus constitutes a task of particular importance (Federal Social Court, loc. cit.; Higher Social Court of Rhineland-Palatinate, judgment of November 25, 2008, L 3 AS 76/07, para. 30 and Higher Social Court of North Rhine-Westphalia, decision of April 15, 2009, L 7b 401/08 AS, para. 7). In the opinion of the court, tax advisory costs, whether necessary or not, do not constitute a special need that bears a certain resemblance to the needs specifically regulated in Sections 47–74 of the German Social Code, Book XII (SGB XII).
5.2 – Social Court Karlsruhe S 1 SO 5729/08 19.01.2010
The legal basis for the claim asserted by the plaintiff is Section 74 of the German Social Code, Book XII (SGB XII). According to this provision, the necessary costs of a funeral are covered insofar as those obligated to pay them cannot reasonably be expected to bear the costs. The obligation to bear the costs of a funeral can arise from a contract, e.g., with the funeral home pursuant to Section 631 of the German Civil Code (BGB), from a maintenance obligation, e.g., as a descendant pursuant to Sections 1601 et seq., Section 1615 Paragraph 2 BGB (cf. Federal Social Court [BSG] judgment of September 29, 2009 – B 8 SO 23/08 R –), as an heir (Section 1968 in conjunction with Sections 1924 et seq. BGB; cf. Federal Administrative Court [BVerwGE] 116, 287, 289), or under state public law governing funerals (cf. BVerwGE 114, 57, 58 et seq., BVerwG Buchholz 436.0 Section 15 BSHG No. 5; e.g., Section 31 Paragraph 1 in conjunction with Section 21 Paragraph 1 No. 1, Paragraph 3 of the Funeral Act). Baden-Württemberg).
It is undisputed and beyond doubt between the parties that the plaintiff, as heir, was obligated to bear the costs of his father's funeral. He can also reasonably be expected to cover the necessary funeral expenses from the estate. The standard for assessing what can reasonably be expected of the person obligated to pay is derived, in particular, from the general principles of social welfare law (see Gotzen, ZfF 2006, 1, 3; left open in BVerwGE 114, 57, 60). Since Section 74 of the German Social Code, Book XII (SGB XII) does not necessarily link the entitlement to reimbursement of costs to the neediness of the claimant (the person obligated to pay), but rather uses the independent requirement of unreasonableness (see BVerwGE 105, 51 ff), Section 74 SGB XII occupies a special position within social welfare law. This regulation differs from other benefits in Chapters 5 to 9, among other things, in that the need may already be met prematurely (before the application is submitted), meaning that a state of emergency, which other social assistance claims regularly require, no longer needs to exist. According to Section 74 of the German Social Code, Book XII (SGB XII), the obligation of the responsible social assistance provider only requires that the costs (which may already have been paid) are "necessary" and that the person obligated to pay cannot reasonably be expected to bear these costs, without explicitly and exclusively relying on need (see Federal Social Court [BSG] judgment of September 29, 2009 – B 8 SO 23/08 R). The closer the family relationship or legal connection, the lower the requirements for the reasonableness of using income and assets generally are.
The defendant rightly pointed out in the contested decisions that the claim for reimbursement of necessary funeral expenses under Section 74 of the German Social Code, Book XII (SGB XII) – like all benefits within the framework of social assistance (cf. Section 2 Paragraph 1 SGB XII) – is subject to the principle of subsidiarity. This means that the person obligated to arrange the funeral – here, the plaintiff as heir upon the death of his father (Section 1968 of the German Civil Code (BGB)) as well as a descendant (Section 31 Paragraph 1 in conjunction with Section 21 Paragraph 1 No. 1, Paragraph 3 of the Baden-Württemberg Funeral Act) – must first use the estate to cover the incurred funeral expenses. The use of the entire available estate is considered reasonable in this context (see Higher Administrative Court of North Rhine-Westphalia, FEVS 48, 446; Grube in Grube/Wahrendorf, SGB XII, 2nd ed. 2008, § 74, marginal note 29; Meusinger in Fichtner/Wenzel, SGB XII – Social Assistance and Asylum Seekers' Benefits Act, 4th ed. 2009, § 74, marginal note 5; and Berlit in LPK-SGB XII, 8th ed. 2008, § 74, marginal note 8). The person obligated to arrange the funeral is not entitled to the statutory provisions on asset protection (§ 90 para. 2 and § 102 para. 3 SGB XII) (see Federal Administrative Court, FEVS 51, 5, as well as Meusinger, ibid., and Berlit, ibid.). The plaintiff is therefore not entitled to offset the estate assets existing at the time of his father's death, consisting of savings and securities accounts, which the defendant correctly calculated at €4,031.11, already fully taking into account the debit balance of €850 on account no. ... in favor of the plaintiff, against liabilities of the estate. This would ultimately result in the defendant having to assume the debts of the person seeking assistance – here, the plaintiff as his father's heir. However, assuming debts is not the responsibility of social assistance – apart from the exceptional cases under Section 34 Paragraph 1 of the German Social Code, Book XII (SGB XII), which are not applicable here (see, in this regard, Federal Administrative Court Decisions 40, 59 and 343; 66, 342, 346; 92, 152, 155 et seq., as well as the Baden-Württemberg State Social Court's decision of June 14, 2007 – L 7 SO 3186/06).
6. Social Court Dortmund, decision of 05.01.2009, file number: S 22 AS 369/09 ER
No reduction in benefits for inadequate information on legal consequences
Long-term unemployed persons can only have their unemployment benefit II reduced for violating the integration agreement after being specifically informed about the legal consequences.
7. Social Court Detmold S 18 (23) AS 69/08 19.08.2009 legally binding, judgment
To be eligible for additional benefits for a special diet, it is necessary that a special diet is medically required and that this diet is more expensive than a normal diet. The plaintiff's type II diabetes mellitus does not require a special diet that incurs additional costs. According to the recommendations of the German Association for the Granting of Dietary Allowances in Social Assistance (as of October 1, 2008), diabetes requires a normal, balanced diet. However, the costs for a normal, balanced diet are already included in the standard benefit rate. A balanced diet is one that covers the need for essential nutrients, takes into account the individual's energy requirements in its energy content, considers the findings of nutritional medicine, and is adapted in its composition to usual dietary habits (Kluthe et al., The Rationalization Scheme 2004, Aktuell ErnährMed 2004, p. 245 ff.). This "normal diet" is covered by the standard benefit rate (LSG Berlin-Brandenburg, decision of October 24, 2008, L 25 B 1731/08 AS ER; LSG NRW, judgment of July 28, 2008, L 20 SO 13/08). Since a diet consisting of a normal, balanced diet is necessary for people with type 2 diabetes, this does not give rise to any additional needs due to illness for a more expensive diet (LSG Hessen, decision of December 22, 2008, L 7 SO 7/08 B ER; LSG Mecklenburg-Vorpommern, judgment of March 9, 2009, L 8 AS 68/08; LSG NRW, decision of May 29, 2009, L 19 B 79/09 AS). The court was also able to base its decision on the new recommendations of the German Association for the Granting of Dietary Allowances for Sickness Expenses dated October 1, 2008, since these recommendations also have the legal status of an anticipated expert opinion for periods prior to their publication (Higher Social Court of Mecklenburg-Western Pomerania, loc. cit.; Higher Social Court of Lower Saxony-Bremen, decision of February 3, 2009, L 9 B 339/08 AS). Notwithstanding this, the new recommendations of the German Association are to be used as a guideline, from which a deviation is only warranted in the case of specific, proven indications in an individual case (Higher Social Court of Hesse, decision of December 22, 2008, L 7 SO 7/08 B ER). Such indications are lacking in the present case. According to the medical report by Dr. U, the plaintiff suffers only from type II diabetes mellitus. There is no evidence, either in the administrative file or in the plaintiff's submissions, to suggest that the plaintiff has a medically necessary, costly dietary requirement that deviates from normal needs due to her diabetes. This conclusion is also supported by the two expert opinions submitted in these proceedings, one from Ms. N and the other from Dr. I. Both experts concur in their reports that, in principle, the presence of diabetes does not necessitate a dietary approach that deviates from normal nutrition and would trigger additional financial expenses.
8. SG Dresden S 23 AS 1952/09, Judgment of 08.01.20010
A recipient of unemployment benefit II receives full rent for her new apartment after her previous apartment was demolished.
Media information from the Dresden Social Court dated February 5, 2010
After the demolition of a previous apartment, the unemployment benefit II agency may not cap the rent at the amount of that previous rent. An unemployed person is entitled to have the full rent for their new apartment covered, at the latest after the demolition of their old apartment. This was decided by the Dresden Social Court in a judgment dated January 8, 2010.
The 45-year-old plaintiff receives unemployment benefit II ("Hartz IV"). She lived in a prefabricated apartment building in Hoyerswerda with her two children, with a total rent of just under €450. When she learned unofficially that her apartment building was to be demolished, she looked for a new apartment. In October 2006, she signed a new lease and moved in December 2006. However, the new total rent was €530. As early as November 2006, the supervisory board of the housing association decided to demolish the building in which the plaintiff had previously lived. The building was demolished at the end of 2007. Nevertheless, the Hoyerswerda Job Center (Arge Hoyerswerda) only covered the rent at the previous rate from November 2007 onwards. They argued that the move had not been necessary in December 2006 and that a necessity could not arise retroactively. The plaintiff and her children filed several lawsuits with the Dresden Social Court.
The 23rd Chamber of the Social Court ruled in favor of the plaintiffs and ordered the Hoyerswerda Job Center to cover the new rent. Whether the plaintiff should have waited until shortly before the demolition to move is ultimately irrelevant. The demolition had already taken place, thus creating a compelling reason for the move. Therefore, there was no longer any basis for reducing the rent due to an unnecessary move.
Case No.: S 23 AS 1952/09 (not legally binding)
Appendix:
Section 22 Paragraph 1 of the German Social Code, Book Two – Basic Income Support for Jobseekers (SGB II):
“Benefits for accommodation and heating are provided in the amount of the actual expenses, insofar as these are reasonable. If, after a move that was not necessary, the reasonable expenses for accommodation and heating increase, the benefits will continue to be provided only in the amount of the reasonable expenses to be borne up to that point. (…)”
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