1. State Social Court of Baden-Württemberg L 3 AS 3759/09 20.01.2010; Judgment
The provision of Section 22 Paragraph 1 Sentence 4 of the German Social Code, Book II (SGB II) is applicable here, even though the plaintiff did not receive the repayment amounts himself, but rather these amounts were transferred directly to his mother by the landlord at his instigation.
The actual payment of a specific sum of money directly to the beneficiary is not required, either according to the wording of Section 22 Paragraph 1 Sentence 4 of the German Social Code, Book II (SGB II), nor according to its legislative history, purpose, or legal context, to trigger a reduction in the benefit entitlement in the following month (cf. the following: Judgment of the Higher Social Court of North Rhine-Westphalia of 22 September 2009 – L 6 AS 11/09 -).
According to the wording of Section 22 Paragraph 1 Sentence 4 of the German Social Code, Book II (SGB II), not only actual repayments but also credit balances reduce the expenses incurred by the benefit recipient after the month of repayment or credit entry. Unlike a repayment, a credit balance is merely a positive balance, meaning a claim that can be asserted against another party. The term "credit entry" also does not imply a payment but simply the written recording or entry of a credit balance as an existing claim of another party.
The legislative history also fails to demonstrate any legislative intent that only actual payments should reduce expenses. Section 22 Paragraph 1 Sentence 4 of the German Social Code, Book II (SGB II) was inserted into the SGB II by the "Act to Further Develop Basic Income Support for Job Seekers of July 20, 2006," effective August 1, 2006, to eliminate previously existing problems with the calculation of benefits. Before the insertion of this provision, repayments were counted as income. This led, firstly, to the deduction of a flat-rate insurance allowance or insurance costs from the repayment, and secondly, to the fact that, as a rule or to a large extent, the federal government, in this case the Federal Employment Agency, benefited from the utility bill repayments, even though the municipalities had borne over 70% of the housing costs. Both of these problems were to be avoided with the introduction of Section 22 Paragraph 1 Sentence 4 of the SGB II (see Bundestag Printed Matter 16/1696, page 26).
The fact that the repayment is considered income of the benefit recipient (see BT-Drs. 16/1696) and, according to Section 22 Paragraph 1 Sentence 4 of the German Social Code, Book II (SGB II), is merely subject to a special form of crediting against benefits, also supports the conclusion that even the refund, which is used to pay off debts and is therefore not actually available to the benefit recipient, reduces their benefit entitlement. This constitutes income of the plaintiff.
This applies in this specific case, particularly considering that, even though the money was transferred directly to the plaintiff's mother's account, this occurred at the plaintiff's instigation. The plaintiff instructed his landlord to proceed in this manner. He thus had control over these funds. Had he not been entitled to the money, he would not have been able to dispose of it. Such debt repayment is not in line with the purpose of SGB II benefits. SGB II benefits are not intended to contribute to debt repayment. As with previous social assistance law, the principle also applies within the framework of basic income support that those seeking assistance must use their income to alleviate a current emergency, even if this renders them unable to fulfill other existing obligations. Means-tested social assistance is not intended to contribute to debt repayment. The Federal Administrative Court's case law on social assistance law was adopted by the Federal Social Court (BSG) in its judgment of September 19, 2008 (- B 14/7 b AS 10/07 R -, with further references in juris.de), which this Senate endorses, for benefits under Book II of the German Social Code (SGB II). Voluntary payments for debt repayment cannot be deducted from income. Since voluntary payments for debt repayment cannot be deducted from income, this also applies within the framework of Section 22 Paragraph 1 Sentence 4 of Book II of the German Social Code (SGB II). The plaintiff should not be placed in a more favorable position here either. He must finance existing private debts from his standard benefit. The "non-consideration" of a utility bill or a credit note would, even within the framework of Section 22 Paragraph 1 of Book II of the German Social Code (SGB II), lead to debt repayment via social benefits, which is not intended according to the principles of SGB II benefit law.
This conclusion is not altered even in light of the judgment of the Hamburg State Social Court of July 16, 2009 (- L 5 AS 81/08 -). It can remain open whether Section 22 Paragraph 1 Sentence 4 of the German Social Code, Book II (SGB II), contrary to the opinion of the Hamburg State Social Court, also applies when, as in the case decided by the Hamburg State Social Court, the landlord, not the plaintiff, disposes of the ancillary cost reimbursement, since in the present case the plaintiff's instruction to the landlord to transfer the money to his mother's account constituted a disposition by the plaintiff himself, meaning the cases are not comparable.
Contrary to the opinion of the Social Court in the contested judgment, the action is also unsuccessful because the utility cost refunds were also made for the period before October 2005, when the plaintiff was not yet receiving benefits, or for the period from May 2006 onwards, when he only received reduced housing costs. Section 22 Paragraph 1 Sentence 4 of the German Social Code, Book II (SGB II) does not differentiate in this respect. As explained above, the wording of the provision states only that refunds and credits attributable to housing and heating costs reduce the expenses incurred after the month of the refund or credit. The wording of the provision does not contain any limitation to utility cost statements only for the period of benefit receipt or for periods in which full housing costs were granted. This is also consistent, as the defendant rightly pointed out, with the fact that the defendant is conversely also liable for back payments or debts relating to the period before the application was filed. According to Section 22 Paragraph 1 Sentence 4 of the German Social Code, Book II (SGB II), the decisive factor is solely the month following the month in which the back payment is due or refunded, and not the period for which these ancillary costs were incurred. Since no distinction is to be made as to whether the advance payments were made in the past, before the receipt of benefits, or during the receipt of benefits, it is also irrelevant whether the benefit provider covered the full housing costs or only the reasonable costs. If refunds and credits relating to the period before the receipt of benefits are to be taken into account, then this must also apply to refunds and credits relating to periods in which only the reasonable rent was covered. Furthermore, this is consistent with the principle that, with regard to incoming income, it is not when this income was earned that matters, but rather when it is received. Section 22 paragraph 1 sentence 4 of the German Social Code, Book II (SGB II), which – as explained – is merely a crediting provision, does not change this.
The appeal is granted due to the fundamental importance of the legal issue (§ 160 para. 2 no. 1 of the Social Court Act). The question of whether repayments relating to periods in which only reasonable housing costs were granted, and whether payments for debt repayment under § 22 para. 1 sentence 4 of the German Social Code, Book II, are deductible, requires fundamental clarification. There is no existing case law from the highest court on this matter.
2. State Social Court of Lower Saxony-Bremen L 8 SO 149/07 27.08.2009, Judgment
A residential facility within the meaning of Section 7 Paragraph 4 of the German Social Code, Book II (SGB II) exists if the objective structure of the facility does not allow a person in need of assistance to pursue gainful employment on the general labor market for 3 hours a day (distinguishing from the Federal Administrative Court's decision of February 24, 1994, 5 C 24/02 = BVerwGE 95, 149 = NDV 1994, 431).
According to Section 7 Paragraph 4 of the German Social Code, Book II (SGB II), benefits under the SGB II were not granted to anyone who was accommodated in an inpatient facility for more than six months or who received an old-age pension. The ruling of the Federal Social Court (BSG) (dated September 6, 2007, B 14/7b AS 16/07 R, BSGE 99, page 88 = FEVS 59, page 305) must be consulted to interpret this provision. According to this ruling, the following applies: In the case of a stay in an inpatient facility pursuant to Section 7 Paragraph 4 of the SGB II, a prognostic assessment of the length of stay is not sufficient. Rather, it must be determined whether, despite the stay in the facility, gainful employment of at least 15 hours per week was objectively possible, because in this respect, the term "facility" within the meaning of Section 7 Paragraph 4 of the SGB II is to be considered independently
(Principle of the Federal Social Court: "A residential facility within the meaning of Section 7 Paragraph 4 of the German Social Code, Book II, exists if the objective structure of the facility does not allow a person in need of assistance to pursue gainful employment on the general labor market for 3 hours a day (distinction from the Federal Administrative Court decision of February 24, 1994, 5 C 24/02 = BVerwGE 95, 149 = NDV 1994, 431)").
The Federal Social Court (BSG) has thus adopted a functional interpretation of the term "institution" (see Spellbrink in Eicher/Spellbrink, Commentary on the German Social Code, Book II (SGB II), 2nd edition 2008, § 7, para. 62). According to this interpretation, an exclusion from benefits under the SGB II is only justified if a person who is otherwise capable of working is housed in an institution in such a way that they are objectively unable to work alongside their residence there. The decisive factor is therefore whether, due to the nature, type, structure, and organization of the institution, gainful employment is objectively impossible, with the objective structure of the institution being the determining factor. For an SGB II claim, it is therefore necessary that the residential institution permits a weekly working time or gainful employment of 15 hours. There can be no doubt about this in the present case. Institution I is an institution for the group of persons defined in § 67 of the German Social Code, Book XII (SGB XII) (persons whose special living conditions are associated with social difficulties). The aim of this institution was to guide this group of people towards an independent life, and specifically to introduce them to and facilitate their employment. The overall plan and the progress reports of J. provide no indication whatsoever that the plaintiff was structurally integrated into the institution in such a way that the required 15 hours of employment per week would not have been possible (overall plan of June 15, 2005, progress reports of December 29, 2005, and June 16, 2006). According to these documents, the plaintiff was to be given the opportunity to lead an independent and self-determined life through support and motivation. The stated goals of this support included: motivating participation in cultural life and events, developing personal perspectives, motivating participation in group activities within the institution, motivating participation in group activities outside the institution, reflecting on group behavior where appropriate, and, where appropriate, integration into the local community. Therefore, there were no mandatory activities within the institution that would have prevented the plaintiff from working 15 hours per week. Therefore, Section 7 Paragraph 4 of the German Social Code, Book II (SGB II) cannot be successfully invoked against the claim for the granting of unemployment benefit II (Alg II).
Furthermore, the plaintiff was capable of working within the meaning of Section 8 Paragraph 1 of the German Social Code, Book II (SGB II) during the period in question. According to this provision, a person is considered capable of working if they are not, due to illness or disability, unable to work at least three hours a day under the usual conditions of the general labor market for the foreseeable future. No compelling evidence of a lack of capability for work can be found. The plaintiff's known alcohol problem did not preclude his capability for work pursuant to Section 8 Paragraph 1 of the SGB II. Neither the overall plan nor the progress reports provide any indication of an inability to work due to the alcohol problem. While the plaintiff's alcohol problem is addressed, it is not addressed in such a way as to preclude employment. The overall plan for the problem area "Work" states the following as the goals of assistance: securing suitable employment. Sub-goals include: assessing one's own abilities, realizing a suitable employment perspective, and obtaining a suitable job. Measures include: job counseling and motivation, and ongoing discussions regarding the plaintiff's motivation to seek suitable employment. These discussions are ongoing and will continue to be necessary, with the current focus (November 9, 2005) being on performing community service. Nowhere in the overall plan or progress reports is it suggested that employment would be precluded due to the alcohol problem. This is also contradicted by the fact that the plaintiff actually performed community service, presumably in the form of community service as payment of a fine. The statement submitted by the I. in the appeal proceedings on July 1, 2008, does not alter this. The report stated that the plaintiff was unable to work during the period in question, primarily due to his severe alcohol problem and his limited communication skills. This was based on the fact that the plaintiff was long-term unemployed, completely unaccustomed to work, and therefore had no chance on the job market. This does not, however, establish incapacity for work within the meaning of Section 8 Paragraph 1 of the German Social Code, Book II (SGB II). While the alcohol problem and the lack of work experience may certainly hinder placement in employment, this demonstrates that the plaintiff's personal problems made his job placement more difficult, but do not constitute incapacity for work. Furthermore, the fact that the plaintiff received unemployment benefit II (Alg II) from the intervenor after his release from prison on June 11, 2007, argues against incapacity for work. The issue of "capacity for work" is therefore irrelevant. The plaintiff's incapacity for work for the period in question cannot be established.
Furthermore, in the event of a dispute regarding employability, the intervener would have been liable for benefits pursuant to Section 44a Paragraph 1 of the German Social Code, Book II (SGB II).
Therefore, the plaintiff is entitled to benefits under the German Social Code, Book II (SGB II), because the conditions for exclusion from benefits under Section 7 Paragraph 4 of the SGB II are not met and his ability to work was affirmed pursuant to Section 8 Paragraph 1 of the SGB II, or Section 44a Paragraph 1 of the SGB II applies. He is therefore entitled to unemployment benefit II (Alg II) pursuant to Section 19 of the SGB II for the period in dispute.
2.1 – Lower Saxony-Bremen State Social Court L 8/13 SO 15/07 27.08.2009, Judgment
The needs-based basic income support pursuant to Section 3 Paragraph 1 of the Basic Income Support Act (GSiG) or the benefits for basic income support for the elderly and those with reduced earning capacity pursuant to Section 42 Sentence 1 of the German Social Code, Book XII (SGB XII) (in the version applicable until December 6, 2006) include, according to the respective No. 2 of the provision, among other things, reasonable actual expenses for accommodation and heating. The plaintiff also incurs such expenses. They do not exceed the reasonable limit and must therefore be covered by the defendant.
The plaintiff, however, did not incur any actual expenses in the sense of fulfilling contractual obligations. She has no obligations to her parents or to third parties in connection with her accommodation. She lives in her parents' house without any (sub)lease agreement being established or any financial contribution by the plaintiff to the overall accommodation costs being agreed upon. Contractual obligations to the municipality, energy supplier, or insurance company in connection with utilities and heating for the house, which the plaintiff also occupies, do not apply to her, but rather, according to the submitted documents, to her parents or one parent.
The expenses required for accommodation and heating in the house also occupied by the plaintiff must be distributed proportionally among all residents of the house, so that, regardless of the (contractual) payment obligation, each resident bears a (generally equal) share of the costs. The "actual expenses" in Section 3 Paragraph 1 No. 2 of the German Social Security Act (GSiG) or Section 42 Sentence 1 No. 2 of the German Social Code, Book XII (SGB XII) refer not only to the obligations directly imposed on the benefit recipient, but also to the costs attributable to the residential property. Any other interpretation, such as that advocated by the defendant, is incompatible with the overall system of ensuring adequate accommodation for people in need of assistance.
If persons who are not in need of assistance and persons who are in need of assistance, and who are related by blood or marriage, live in the same household, the (reasonable) expenses of the person in need of assistance for accommodation consist of a portion of the (reasonable) expenses payable for the shared dwelling. The Federal Administrative Court (BVerwG) already ruled this in its judgment of January 21, 1988, for the scope of application of the Federal Social Assistance Act (BSHG). The same applies to the Social Assistance Act (GSiG), Section 3 Paragraph 1 Number 2 of which corresponds to Section 3 Paragraph 1 Sentence 1 of the Ordinance Implementing Section 22 Paragraph 5 of the BSHG Standard Rate Ordinance, which was in effect until December 31, 2004 (see, among others, the judgment of the Administrative Court of Augsburg of December 21, 2004, AU 3 K 04.617, juris). With regard to the area of the Social Code, Book II (SGB II), the Federal Social Court (BSG), in its judgment of October 31, 2007, B 14/11b AS 7/07 R, expressly adopted the jurisprudence of the Federal Administrative Court (BVerwG) (loc. cit.) (see also judgment of November 23, 2006, B 11b AS 1/06 R, SozR 4-4200 § 20 No. 3 = BSGE 97, 265). It is not apparent that the legislator, with regard to the area of Book XII (SGB XII) (here in §§ 29 and 42), intended to deviate from the established case law on the allocation of accommodation costs per capita, even with comparable wording to the provisions in the Standard Rate Ordinance, the Basic Income Support Act (GSiG), or Book II (SGB II).
In the absence of other indications, the plaintiff is therefore liable for one-third of the expenses for the house she also occupies. The total costs of approximately €220.00 for three people are reasonable, without requiring further explanation given this amount. Since the exact amount of expenses for the period in dispute is not known, and information is only available for the calendar year 2007, the Senate has exercised its option of issuing a preliminary judgment (§ 130 para. 1 sentence 1 of the Social Court Act) ordering the defendant to pay benefits without specifying the exact amount. This is permissible here because the basic requirements for the disputed claim for benefits are met. The defendant will have to determine, taking into account the case law of the Federal Social Court, which specific expenses are to be considered and whether any expenses beyond those shown in the documents submitted for 2007 are to be considered.
The fact that the plaintiff's parents are generally obligated to provide her with maintenance, including accommodation, does not preclude consideration of a proportionate share of her housing costs. Special provisions apply to the plaintiff's entitlement to benefits under Chapter 4 of the German Social Code, Book XII (SGB XII), regarding the use of assets and maintenance claims (§ 43 SGB XII). Maintenance claims against parents are essentially disregarded (§ 43 para. 2 SGB XII). There is no sufficient evidence to suggest that the plaintiff's parents' income exceeds the €100,000.00 threshold. Corresponding regulations also applied under the former German Social Security Code (GSiG) (§ 2 para. 2 GSiG). Furthermore, the last half-sentence of § 43 para. 2 SGB XII clarifies that the presumption of needs coverage in shared households under § 36 sentence 1 SGB XII does not apply. Although the GSiG lacks a corresponding reference, with regard to the special regulation on maintenance claims already contained therein, nothing different applied to the period before January 1, 2005 (see also H. Schellhorn in Schellhorn/Schellhorn/Hohm, Commentary on the SGB XII, § 43 Rdnr 3).
2.2 – Lower Saxony-Bremen State Social Court L 8 SO 177/09 B ER 29.09.2009, Decision
Due to the applicant's lack of power of disposition, the estate subject to permanent executorship does not constitute realizable assets pursuant to Section 90 Paragraph 1 of the German Social Code, Book XII (SGB XII) – Disability Trust –
The applicant's assets, which might be considered pursuant to Section 90 Paragraph 1 of the German Social Code, Book XII (SGB XII), do not currently preclude the provision of benefits. The applicant was named as an heir by her deceased mother, along with her siblings, with an inheritance of €35,000.00. However, the applicant was appointed as a preliminary heir, and the execution of the will was ordered. Whether this will constitutes a so-called "disability trust," according to which assets are specifically intended to be shielded from the reach of the social welfare agency, does not require a decision here. The Federal Court of Justice (BGH) has denied the immorality of such a will (see BGH, judgment of March 21, 1990 IV ZR 169/89 BGHZ 111, page 36; judgment of October 20, 1993 IV ZR 231/92 BGHZ 123, page 368; see also OVG of Saarland, judgment of March 17, 2006 3 R 2/05 Recht der Lebenshilfe 2006, page 181; LSG Baden-Württemberg, decision of October 9, 2007 L 7 AS 3528/07 FEVS 59, page 173; see also Wendt, Das Behindertentestament Ein Auslaufmodell?, ZNotP 2008, page 2; Fensterer, Das Testament favour behinderter und bedarfer Personen, 2008, pp. 4ff, 46f). Since an executor has been appointed, the applicant, as heir, is subject to the restrictions on her power of disposition under Section 2211 Paragraph 1 of the German Civil Code (BGB), according to which the heir cannot dispose of an asset of the estate that is under the administration of the executor. Due to the applicant's lack of power of disposition, the estate subject to the ongoing executorship does not constitute realizable assets within the meaning of Section 90 Paragraph 1 of the German Social Code, Book XII (SGB XII). At most, the applicant could have a claim against the executor for the release of the funds necessary to cover the care costs. However, this would first have to be enforced, if necessary, through legal action, so that currently no funds are readily available.
2.3 – Lower Saxony-Bremen State Social Court L 8 SO 154/07 24.09.2009, Judgment (Appeal allowed).
Regarding the conditions under which parents of a disabled child can be required to contribute to the costs of meals provided at a day care facility: The care allowance is not to be considered income. On the one hand, it is earmarked income for the person requiring care according to Section 83 Paragraph 1 of the German Social Code, Book XII (SGB XII), and therefore not to be used for their living expenses. If it is passed on to caregivers, it is likewise not to be treated as their income within the meaning of Section 82 Paragraph 1 of the SGB XII (Senate Decision of October 7, 2005, L 8 SO 60/05 ER; Higher Social Court of North Rhine-Westphalia, Decision of August 2, 2007, L 20 B 42/07 AY ER; Grube in Grube/Wahrendorf, SGB XII, 2nd Edition 2008, Section 64, Paragraph 3).
The sole point of contention is whether the plaintiff is obligated to pay the defendant a contribution towards the costs of the lunch provided to her son in the day-care facility. No such obligation exists here for various reasons.
The only possible legal basis for the disputed cost contribution is Section 92 Paragraph 1 of the German Social Code, Book XII (SGB XII). According to sentence 2 of this provision, the persons named in Section 19 Paragraph 3 (beneficiaries, their spouses or registered partners who do not live separately, and, in the case of minor and unmarried beneficiaries, also their parents or legal guardians) are required to contribute to the costs of disability-related social assistance benefits provided for inpatient facilities or day care centers for people with disabilities. Raising these funds must be reasonable for the aforementioned group of persons, because otherwise, assistance under Chapters Five to Nine of the SGB XII would be provided regardless of their income or assets (Section 19 Paragraph 3 SGB XII). According to Section 92 Paragraph 2 Sentence 1 Number 2 of the German Social Code, Book XII (SGB XII), only the provision of funds for the costs of living is reasonable if assistance is provided for appropriate schooling, including preparation for it, regardless of existing assets (Section 92 Paragraph 2 Sentence 2), i.e., only from income.
Regardless of all other considerations, a reimbursement obligation is therefore not applicable since February 14, 2008, as any potential obligation of the plaintiff to contribute ended on that date anyway. According to Section 19 Paragraph 3 of the German Social Code, Book XII (SGB XII), only parents of unmarried minor benefit recipients are obligated to contribute their income if the other requirements are met; H. turned 18 on February 14, 2008.
The defendant's view that Section 92 Paragraph 2 of the German Social Code, Book XII (SGB XII) is the sole legal basis for the requested cost contribution, to be considered in isolation from the provisions of Sections 85 et seq., is incorrect. Rather, this provision governs the limited consideration of income and assets for the integration assistance benefits mentioned therein, compared to other benefits for disabled persons; it is restricted to covering the costs of living and is only applicable to the amount of expenses saved on domestic living costs. In any case, according to Section 92 SGB XII, as well as Section 19 Paragraph 3 SGB XII, only a reasonable cost contribution can be demanded. Regarding the reasonableness of the cost share, Chapter Eleven, Section 2 applies, which regulates the use of income and assets (see also Wahrendorf in Grube/Wahrendorf, SGB XII, 2nd ed., § 92 para. 5, W. Schellhorn in Schellhorn/Schellhorn/Hohm, SGB XII, 17th ed., § 92 para. 34). Section 92 para. 2 of the German Social Code, Book XII (SGB XII) does not create a special regulation outside the general income limits (see, regarding the identical predecessor regulation in § 43 of the Federal Social Assistance Act (BSHG), Federal Administrative Court, decision of April 7, 1995, 5 B 36/94, FEVS 46, 8), but rather constitutes a restriction of Section 92 para. 1 of the SGB XII. Those liable for reimbursement are only required to cover the costs of living if they can be required to contribute to the costs of integration assistance under the provisions of Chapter Eleven of the German Social Code, Book XII (Sections 85 et seq.) – for the integration assistance services mentioned in paragraph 2 (Wahrendorf, loc. cit., Section 92, marginal note 10). The opposing view of Lippert (in Mergler/Zink, SGB XII, as of September 2008, Section 92, marginal notes 16, 32), cited by the defendant, that when levying the cost contribution under Section 92, paragraph 2 of the SGB XII, all income – even below the income threshold – must be taken into account, and that no income assessment is required, is unconvincing. Firstly, the commentary contradicts itself; see paragraph 29: "Only the upper limit of the contribution is determined. The determination of the reasonable cost-sharing in each individual case must be carried out in accordance with the provisions of Chapter 11, Section 2." Secondly, the view is contradicted by the fact that Section 92 Paragraph 2 of the German Social Code, Book XII (SGB XII) also contains a provision on a cost contribution for integration assistance services, for which, according to the systematic structure of the law, the income limits of Sections 85 et seq. are decisive.
If, therefore, Section 92 Paragraph 1 Sentence 2 of the German Social Code, Book XII (SGB XII) in conjunction with Section 92 Paragraph 2 Sentence 3 of the SGB XII is the only apparent legal basis for the requested cost contribution, then, according to these provisions, the cost contribution presupposes that actual living expenses are affected. In the defendant's view, these are the costs of the lunch H. consumed at the workshop for disabled persons. Doubts already exist regarding this point.
According to Section 35 Paragraph 1 Sentence 1 of the German Social Code, Book XII (SGB XII), "the necessary subsistence in institutions includes the necessary subsistence provided therein." According to the Federal Social Court (BSG), Section 35 SGB XII makes no statement as to which social assistance benefit the lunch provided in an institution should be assigned. Section 35 SGB XII only means that the benefits (solely) serving subsistence that are provided in institutions are to be assigned to Chapter Three or Four of the SGB XII and, except in fully residential facilities (Section 97 Paragraph 4 SGB XII), establish the responsibility of two social assistance providers. In any case, lunch in a workshop for disabled people is to be considered an integral component of integration assistance (BSG, Judgment of December 9, 2008, B 8/9b SO 10/07 R). There is strong support for the view that lunch at a day care center run by Lebenshilfe (a German organization supporting people with disabilities) should be considered an integral part of this type of integration assistance, within the framework of support for appropriate schooling. This would mean that a contribution towards costs (limited to living expenses according to Section 92 Paragraph 2 Sentence 1 of the German Social Code, Book XII) would not be payable, regardless of other considerations, because lunch at the day care center would not be considered a living expense.
Even if the lunch provided to the plaintiff's son at the day care center is not considered an integral part of integration assistance within the meaning of the aforementioned case law of the Federal Social Court (BSG), but rather a cost of living within the meaning of Section 92 Paragraph 2 Sentence 1 of the German Social Code, Book XII (SGB XII), a contribution towards costs cannot be demanded from the plaintiff. Such a contribution is unreasonable.
Whether and to what extent a contribution towards costs can be levied from the plaintiff's income (assets are not to be considered in any case according to Section 92 Paragraph 2 Sentence 2 of the German Social Code, Book XII (SGB XII)) is determined, as explained above, by the provisions of Chapter Eleven of the SGB XII. First, the income of the plaintiff and her son must be determined according to Section 85 of the SGB XII, and then it must be examined whether their combined income to be considered according to Section 85 Paragraph 2 Sentence 1 of the SGB XII exceeds the income threshold stipulated therein. This was not the case. The plaintiff and her son received basic income support benefits under the SGB XII or corresponding benefits under the German Social Code, Book II (SGB II) until September 2006. Since October 2006, their unadjusted monthly income amounted to €1,173.78 (pension: €693.78, child benefit: €154.00, maintenance payment for H.: €217.00, and housing benefit: €109.00), whereby the child benefit payments were included in full despite being diverted, and insurance contributions have not yet been taken into account. As the Social Court has already correctly pointed out, the care allowance is not to be considered income. On the one hand, it is earmarked income for the person in need of care pursuant to Section 83 Paragraph 1 of the German Social Code, Book XII (SGB XII), and therefore cannot be used for their living expenses. If it is passed on to caregivers, it is also not to be treated as their income within the meaning of Section 82 Paragraph 1 of the German Social Code, Book XII (Senate decision of October 7, 2005, L 8 SO 60/05 ER; Higher Social Court of North Rhine-Westphalia, decision of August 2, 2007, L 20 B 42/07 AY ER; Grube in Grube/Wahrendorf, SGB XII, 2nd edition 2008, Section 64, marginal note 3). Therefore, the plaintiff's and her son's unadjusted income of €1,173.78 per month since October 2006 did not reach the income threshold of Section 85 Paragraph 2 of the German Social Code, Book XII. This amounted to EUR 1,302.20 up to June 2007, based on a double standard rate of EUR 690.00, a family supplement of 70% of the standard rate of EUR 242.00, and taking into account the reasonable accommodation costs of EUR 370.20 recognized by the defendant; the income limit increased to EUR 1,307.20 due to the increase of the standard rate by EUR 2.00 from July 2007.
Consequently, Section 88 of the German Social Code, Book XII (SGB XII) is relevant, which regulates the use of income below the income threshold. However, because Section 88, Paragraph 1, Sentence 1, Number 3 of the SGB XII was repealed with effect from December 7, 2006, there is no legal basis for levying a cost contribution from the mother of the benefit recipient for the period from December 7, 2006 onwards, as a review of the legal developments makes clear.
Originally, according to the Act Amending the Act on the Integration of Social Assistance Law into the Social Code of December 9, 2004 (Federal Law Gazette I, p. 3305), Section 82 Paragraph 4 Sentence 1 of the German Social Code, Book XII (SGB XII) contained the following provision: "If a person lives in a semi-residential or residential facility, they may be required to contribute the funds for benefits under Chapter Three to the extent that expenses for domestic living are saved." Section 88 Paragraph 1 Number 3 of the SGB XII (corresponding to Section 85 Paragraph 1 Number 3 of the Federal Social Assistance Act (BSHG)) allowed for the use of income below the income threshold "to the extent that expenses for domestic living are saved in the case of semi-residential or residential services."
Both provisions, which were considered inconsistent with the system, among other things because they did not consistently implement the separation of subsistence from the benefits under Chapters 5 to 9 (cf. W. Schellhorn in Schellhorn/Schellhorn/Hohm, SGB XII, 17th ed. § 88 para. 15), were repealed with effect from December 7, 2006 (Law amending Book Twelve of the Social Code and other laws of December 2, 2006, BGBl I, 2670). The Federal Government's draft bill stated the following justification: "Since, according to the concept of Book Twelve of the Social Code, assistance for subsistence is no longer part of the benefits under Chapters Five to Nine, no savings on domestic living expenses can be achieved in the case of partial inpatient or inpatient services under Chapters Five to Nine. The provision should therefore be deleted to that extent" (BT-Drs. 16/2711, p. 12).
The relevant provision for the use of income for benefits in institutions has since been found in Section 92a of the German Social Code, Book XII (SGB XII), which was inserted with effect from December 7, 2006, and which replaces the previous Section 82, Paragraph 4 of the SGB XII. Section 92a, Paragraph 1 of the SGB XII reads: "If a person receives benefits in a semi-residential or residential institution, the costs for the benefits in the institution pursuant to Chapters Three and Four may be borne by that person and their spouse or registered partner who is not living separately, from their joint income, insofar as expenses for domestic living costs are saved."
This regulation provides no legal basis for levying a cost contribution from parents of minor and unmarried children for services provided by the institution. It only requires the person entitled to benefits and their life partner or spouse to contribute. The Federal Council's proposal to include the parents of minor benefit recipients in Section 92a of the German Social Code, Book XII (SGB XII), was not implemented by the legislature following a negative response from the Federal Government (Bundestag printed matter 16/2753). Therefore, the defendant cannot rely on Section 92a of the SGB XII to levy the cost contribution from the plaintiff for the period since December 7, 2006.
The cost contribution notice is also unlawful for the period from January 1, 2005, to December 6, 2006, due to an abuse of discretion. The legal basis for this period is Section 92 Paragraph 1 Sentence 2, Paragraph 2 Sentence 1 Number 2 of the German Social Code, Book XII (SGB XII), in conjunction with Section 85 Paragraph 2 and Section 88 of the SGB XII, in the version valid until December 6, 2006. During this period as well, the income of the plaintiff and H. to be taken into account was below the income threshold of Section 85 Paragraph 2 of the SGB XII (EUR 1,302.20; for the calculation of income, see above).
According to Section 88 Paragraph 1 Number 3 of the German Social Code, Book XII (SGB XII), as amended above, the provision of funds can be demanded, even if income is below the income threshold, insofar as expenses for home living are saved in the case of partial or full inpatient care. However, this provision is discretionary. The social welfare agency decides on the levying of contributions under Section 88 Paragraph 1 SGB XII at its own discretion. A contribution is unlawful if the social welfare agency has not exercised its discretion when setting the cost contribution. Publicly stated discretionary considerations are indispensable, given that the range of decisions, taking into account the specific circumstances of the individual case, can extend from waiving the collection of a cost contribution to fully considering the income (Federal Administrative Court, judgment of November 25, 1982, 5 C 13/82, FEVS 32, 309; Schoch in LPK-SGB XII, 1st ed., § 88 para. 10; Wahrendorf, ibid., § 88 para. 2; W. Schellhorn, ibid., § 88 para. 4).
Neither the decision of January 5, 2006, nor the appeal decision of December 20, 2006, contains any discretionary considerations. Rather, the reasoning behind the decisions reveals that the defendant erroneously assumed that Section 92 Paragraph 2 of the German Social Code, Book XII (SGB XII) should be interpreted to mean that, regardless of an income assessment and regardless of discretionary considerations, the persons named in Section 19 Paragraph 3 of the SGB XII are required in every case to contribute only to the cost of living when providing assistance for appropriate schooling, including preparation for it. However, this interpretation of Section 92 of the SGB XII is incorrect, as explained above.
The defendant could only have chosen to reduce H.'s needs when calculating his subsistence assistance from July 1, 2005, according to Chapter 3 of the German Social Code, Book XII (not Chapter 4, as the eligibility requirements for the 15-year-old were not met according to Section 41 Paragraph 1 Number 2 of the German Social Code, Book XII, as amended in 2005, now Section 41 Paragraph 3 of the German Social Code, Book XII), by the standard needs for the costs of lunch stipulated in Section 28 Paragraph 1 Sentence 1 of the German Social Code, Book XII, and to determine them differently (see Federal Social Court, Judgment of December 11, 2007, B 8/9b SO 21/06 R; Judgment of December 9, 2008, B 8/9b SO 10/07 R). During the period of receipt of social assistance under the German Social Code, Book II (SGB II) from January 1st to June 30th, 2005, this possibility would not have existed either, because the SGB II does not provide for a different determination of need in individual cases.
2.4 – Lower Saxony-Bremen State Social Court L 13 AS 366/09 B ER 04.12.2009, Decision
A monthly loan granted by the son to his parents is considered income within the meaning of Section 11 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II).
According to Section 2 Paragraph 2 of the Unemployment Benefit II / Social Assistance Ordinance (Alg II – V), current income must be taken into account for the month in which it is received. Contrary to the opinion of the applicants and also the respondent, the loan granted monthly to the applicants by their son H. is to be considered as income eligible for consideration within the meaning of Section 11 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II).
This is already evident from the wording of the provision, which states that income includes receipts in cash or in kind (with the exception of benefits that are not relevant in the present case). The legal definition of income thus does not focus on the legal basis for the income; rather, it focuses solely on the fact that the person seeking assistance receives monetary income. This makes it clear that the legislator is concerned with the pure inflow of money that can be used to manage one's own hardship. The actual availability of the funds is paramount; it is irrelevant whether the person receiving the funds might be legally obligated to surrender the inflow or repay the benefits. Therefore, the Senate has already ruled that, in accordance with the case law on the concept of income in the Federal Social Assistance Act (BSHG), funds received as loans are also to be considered income within the meaning of the provisions on assistance benefits under Book II of the German Social Code (SGB II) (see Senate decision of July 14, 2008 – L 13 AS 97/08 ER – in: FEVS 60, 87). Following these considerations, the commentary on the parallel provision of Section 82 of Book XII of the German Social Code (SGB XII) also takes the view that inflows of funds as loans are to be considered income within the meaning of social law (see Wahrendorf in: Grube/Wahrendorf, SGB XII, 2nd edition, Section 82, marginal note 27).
To the extent that, in contrast, some legal commentaries and courts hold the view that funds from a loan should not be considered income within the meaning of Section 11 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), due to the applicant's repayment obligation, because these funds would not permanently become part of the applicant's assets from an economic perspective, this view does not convince the Senate (cf. the case law on unemployment assistance: Federal Social Court (BSG), judgment of June 13, 1985 – 7 RAr 27/84 in BSGE 58, 160; Higher Social Court (LSG) of North Rhine-Westphalia, judgment of December 11, 2008 – L 7 AS 62/08 – cited according to juris; judgment of the 8th Senate of the deciding court of February 26, 2009 – L 8 SO 57/07 – Vnb; Mecke in Eicher/Spellbrink, SGB II, 2nd edition 2008, Section 11). (Paragraph 29; Berlit, NZS 2009, 537, 542). The benefits of the former unemployment assistance were wage replacement in nature and their amount was also linked to the level of previous income, so that they were intended to provide an income – albeit financed by tax revenue – that reflected the previous standard of living. Similarly, when granting benefits under the Housing Benefit Act or the Educational Assistance Act, for reasons of administrative simplification, income determined under tax law is used as a basis, whereby income received solely in the form of loans is specifically excluded for tax-related economic reasons.
However, the legislature departed from these considerations with the creation of the German Social Code, Book II (SGB II); instead, it modeled the provisions on income in Section 11 of the SGB II on the regulations in Sections 76 et seq. of the former Federal Social Assistance Act (BSHG). Therefore, the definition of an applicant's need for assistance in Section 9, Paragraph 1 of the SGB II focuses primarily on the income or assets to be considered, thus referring to Sections 11 and 12 of the SGB II, without recognizing a third – so to speak, separate – source of income. However, since, according to Section 2, Paragraph 1, Sentence 1 of the SGB II, employed persons in need of assistance and the persons living with them in a household unit are required to exhaust all possibilities to end or reduce their need for assistance, it cannot be relevant whether funds accruing to them could later be reclaimed from the third party providing the funds. Benefits under the German Social Code, Book II (SGB II), are intended solely to help those in need during a temporary emergency, bridging the gap until they can take up employment. A different approach would effectively put those receiving SGB II benefits in a better position as debtors. These debtors and benefit recipients could then secure their ongoing living expenses with their SGB II benefits while simultaneously having access to the actual cash inflows (from the loan) and using them for their living expenses. In general, in business and employment, it is the creditor who grants a loan to someone in need who bears the risk of whether and when the borrower repays their debt. However, indirectly shifting this economic risk of the lender to the provider of SGB II benefits is not the purpose of state transfer payments, which are financed by tax revenue. Furthermore, those receiving loans can later invoke the civil law exemption limits for garnishment against their creditors.
In contrast, the reference to the "own efforts and resources" mentioned in Section 2 Paragraph 2 Sentence 1 of the German Social Code, Book II (SGB II) and in Section 9 Paragraph 1 First Half-Sentence of the SGB II is not helpful. This is because the law does not refer to economic ownership of funds; rather, it expresses the expectation that those seeking assistance will, of their own volition and as comprehensively as possible, make every effort to overcome their need for assistance and no longer be dependent on benefits under the SGB II (principle of demanding).
The aforementioned understanding of loan funds as income cannot be countered by arguing that it would impose an obligation on employable unemployed persons to incur debt to avoid losing their entitlement to benefits (cf. Armborst in: info also 2007, 288 and Berlit, ibid., p. 543). The actual receipt of funds granted by a creditor as a loan must be distinguished from the generally non-existent obligation to incur debt by taking out loans for self-help purposes. It is the individual's responsibility to decide whether to accept a loan to obtain the means to manage their hardship. The respondent may not, therefore, deny benefits on the grounds that the applicants could take out a loan themselves. A different conclusion can only be reached if there are realizable assets that cannot be immediately liquidated, as stipulated in Section 23 Paragraph 5 of the German Social Code, Book II (SGB II). However, if a lender grants a loan to someone seeking assistance, it is the lender's economic risk whether and when they will receive the funds back. Neither the lender nor the person seeking assistance is obligated to enter into the contract. The German Social Code, Book II (SGB II), does not stipulate that the agency providing benefits should be the guardian of the creditors of the person seeking assistance. Therefore, a (civil law) obligation for the debtor, who receives or applies for benefits under SGB II, to repay the loan funds is irrelevant when assessing whether they have income as defined in Section 11, Paragraph 1, Sentence 1 of SGB II
For the avoidance of doubt, it should be noted that an exception applies if the applicant for assistance takes out a loan from a financial aid provider for the period between filing their application for preliminary legal protection with the court and the court's decision on this application. For good reason, the relevant date for the commencement of the preliminary injunction is not the date of the court's decision, but rather the date the application for preliminary relief was filed with the court (see Wündrich in: SGb 2009, 267, 271). In such cases, this actual inflow of funds from a loan cannot exceptionally be held against the applicant, as they have little control – at least as a rule – over how many days the court takes to decide on their application for preliminary relief. However, if someone has granted a loan to the applicant in preliminary proceedings not as a financial aid provider, but for entirely different reasons, this leads to the invalidation of the grounds for the injunction.
Based on the foregoing considerations, it is therefore no longer relevant for the decision on the appeal filed by the applicants whether the information regarding the allegedly very low monthly income of the second applicant from his employment is actually true, the doubts arising from the fact that he acts as managing director of the vehicle trading company and that the person who issued the income certificate is his son H., who has a financial interest in the applicants receiving benefits. Likewise, it is not necessary for the present expedited proceedings to determine whether the applicants meet the requirements of Section 9 Paragraph 5 of the German Social Code, Book II (SGB II), and what efforts they can be expected to make to address their need for assistance.
3. State Social Court of North Rhine-Westphalia L 12 AS 91/10 B 03.02.2010 legally binding, decision
Even if the claim is assigned to the tax office, income tax refunds are considered creditable income upon receipt.
The applicant received a total of EUR 2,953.90 on September 15, 2009, from an income tax refund for 2008.
This inflow cannot be denied in light of the alleged assignment of the claim on January 17, 2008. This is because the responsible tax office paid the tax amount to be refunded into the applicant's account in accordance with the tax assessment notice of September 11, 2009.
The claim for reimbursement against the tax office has therefore been extinguished, as the Social Court correctly pointed out, pursuant to Section 407 Paragraph 1 of the German Civil Code (BGB). This is because it has neither been alleged nor is it otherwise apparent that the assignment was notified to the debtor or that the debtor became aware of it in any other way. The fact that the claim for reimbursement arose directly in the person of the assignee, in this case Ms. B, does not prevent its extinguishment. The inflow of income through this payment, here in the form of the bank credit, is attributable to the assignor. In this situation, the assignee is limited to claims for compensation under the law of obligations, in particular arising from the underlying contractual relationship (Knerr in: jurisPK-BGB Volume 2, 4th edition 2008, Section 407 BGB, marginal note 30).
However, contractual claims against the benefit recipient can only be considered as reducing income if they are legally established and enforcement proceedings are imminent, according to the legal principle of Section 11 Paragraph 2 Sentence 1 No. 7 of the Second Book of the German Social Code (SGB II). This is not the case here.
The respondent's decision, based on this inflow of income, to distribute the income over six months is also not objectionable. This remains true even considering that the applicant actually transferred half of the income he received to his estranged wife on September 16, 2009, and withdrew €1,500 in cash, which, according to the receipt of the same date, he gave to Ms. B. The fact that the recipient of benefits uses the income he has already received, contrary to the requirement to secure his own livelihood before satisfying his creditors, does not alter the fact that it was received as income and thus does not affect the legality of the income crediting made (Federal Social Court, Judgment of September 30, 2008 – B 4 AS 29/07 R – para. 19; Higher Social Court of North Rhine-Westphalia, Judgment of April 2, 2009 – L 9 AS 58/07).
This view of the highest court does not leave the applicant entirely without recourse. At least for future periods until the conclusion of the crediting process (March 2010), the applicant has the option, pursuant to Section 23 Paragraph 1 of the German Social Code, Book II (SGB II), to apply for a supplementary loan. The respondent has not ruled out this possibility, but rather pointed it out herself in a letter dated November 26, 2009. Furthermore, in this context, the applicant is free to agree with the respondent on the suspension of the offset of €50.00 in favor of the regional office.
4. State Social Court Berlin-Brandenburg L 28 AS 847/08 21.10.2009, Judgment
Unemployment benefit II; Adequacy of accommodation costs; Berlin rent index 2005 and 2007; Adequacy limit for a single-person household in Berlin; Gross rent excluding utilities; Heating costs; Size of the apartment; Average operating costs; Constitutionality of the standard rates for adults
1. The appropriate amount of expenses for housing costs within the meaning of Section 22 of the German Social Code, Book II (SGB II), is to be determined independently of heating costs and refers to the gross rent (net rent and operating costs excluding heating). Heating costs are to be covered in full, within the bounds of economic efficiency, depending on the abstractly appropriate square footage.
2. The appropriateness of the net rent (excluding utilities) is determined by the living space size recognized in social housing and by the qualified rent index of the respective location. The guidelines for the promotion of owner-occupied housing are not a relevant benchmark. Rather, in Berlin, the previous guidelines for publicly subsidized social housing apply, under which construction projects for 1.5-room apartments with a maximum living space of 45 square meters were most recently subsidized.
3. The relevant rent index for the calculation is the one currently available, even if it is based on data collected in previous years. This is because the basis for assessing the relevant net rent can only ever be a rent index already published for the period in question. Otherwise, a comprehensive review of the benefits provided for housing costs would have to be carried out regularly after the publication of the new rent index for previous years.
4. To determine the relevant price per square meter, an overall average must be calculated from all the average values in a row. Neither individual columns, which are essentially based on the years since the apartments were ready for occupancy and additionally on their equipment with central heating and a bathroom, are relevant, nor are the specified minimum or maximum values within the individual columns to be considered decisive (contrary to the ruling of the Berlin-Potsdam Higher Social Court of April 24, 2009 – L 32 AS 923/07).
5. To determine the cold operating costs, the operating cost index determined by the German Tenants' Association for the entire Federal Republic of Germany should be used, and not the 4/5 upper limit of the operating cost overview contained in the rent index (contrary to the rulings of the Berlin-Potsdam Higher Social Court of 4 April 2008 – L 32 B 458/08 AS ER – and of 9 December 2008 – L 32 B 2223/08 AS ER).
6. It should be noted that the level of standard benefits for single adults is not objectionable under constitutional law.
4.1 – Berlin-Brandenburg State Social Court L 28 AS 1395/08 21.10.2009, Judgment
Unemployment benefit II; Adequacy of accommodation costs; Determination of the adequacy limit for a ten-person household based on the 2005 Berlin rent index; Gross rent excluding utilities; Heating costs; Living space limit; Gaps in the housing segment of the rent index
1. The appropriate amount of expenses for housing costs within the meaning of Section 22 of the German Social Code, Book II (SGB II), is to be determined independently of heating costs and refers to the gross rent (net rent and operating costs excluding heating). Heating costs are to be covered in full, within the bounds of economic efficiency, depending on the abstractly appropriate square footage.
2. The appropriateness of the net rent (excluding utilities) is determined by the living space size recognized in social housing and by the qualified rent index of the respective location. The guidelines for the promotion of owner-occupied housing are not a relevant benchmark. Rather, in Berlin, the previous, most recently applicable guidelines for publicly subsidized social housing apply. For 10 people, living space of up to 157 m² is considered appropriate.
3. The relevant rent index for the calculation is the one currently available, even if it is based on data collected in previous years. This is because the basis for assessing the relevant net rent can only ever be a rent index already published for the period in question. Otherwise, a comprehensive review of the benefits provided for housing costs would have to be carried out regularly after the publication of the new rent index for previous years.
4. To determine the relevant price per square meter, an overall average must be calculated from all the average values in a row. If the rent index table is incomplete in a particular area because there are generally only a few apartments available in that segment (here: particularly large apartments in a basic residential area), the more representative residential segment (here: average residential area) should be used.
