The additional operating costs for the former apartment of a Hartz IV recipient must be paid.
The question of whether operating cost arrears must also be covered if the tenancy from which they originate no longer exists at the time the operating cost arrears are due, but the beneficiary is in need at the time of the due date, has fundamental significance beyond the individual case.
Operating cost arrears must also be covered as current needs pursuant to Section 22 Paragraph 1 of the German Social Code, Book II (SGB II), even if the tenancy from which they originate no longer exists at the time the operating cost arrears are due, provided the beneficiary is in need at the time the payment is due; Section 22 Paragraph 5 of the German Social Code, Book II (SGB II) and Section 37 Paragraphs 1 and 2 of the German Social Code, Book II (SGB II) do not preclude this.
If the SGB II provider receives the invoice after the approval notice was issued, it must cover the additional claim pursuant to Section 48 Paragraph 1 Sentence 2 No. 1 SGB X (LSG Saxony of 3.4.2008 – L 3 AS 164/07-, Saxony State Social Court L 3 AS 188/08 of 10.09.2009, judgment).
The provisions of Section 37, paragraphs 1 and 2 of the German Social Code, Book II (SGB II), which stipulate that basic income support for job seekers is granted upon application but not for periods prior to the application, do not preclude consideration of the claim for back payments of operating costs and heating expenses. These provisions apply to basic income support benefits in general. For an application to be considered within the meaning of Section 37 SGB II, a mere assertion of the claim in principle is sufficient (see Social Court Freiburg, judgment of February 1, 2008 – S 12 AS 3204/06 – para. 19; Social Court Hildesheim, judgment of April 27, 2009 – S 43 AS 80/08 – para. 28).
Additional charges for ancillary rental and heating costs that arise despite proper payment of the contractually agreed monthly advance payments and are claimed by the landlord are generally to be considered a current need within the meaning of Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), and not as debts to be covered only under the conditions of Section 22 Paragraph 5 SGB II (see Saxon State Social Court, loc. cit., para. 41; State Social Court for the State of North Rhine-Westphalia, judgment of January 22, 2009 – L 7 AS 44/08 – para. 50). The need for assistance initially exists only to the extent of the agreed advance payment, which may subsequently prove to be too low. This is because the tenant is only actually required to make this advance payment. Rent arrears, on the other hand, only exist if the tenant has failed to pay a rent due under tenancy law (cf. § 241 of the German Civil Code [BGB]) despite the payment being due (cf. § 271 BGB) (cf. SächsLSG, aa O., Rdnr. 42).
If – as in the present case – the landlord determines at the end of the agreed accounting period, based on the data then available, that the monthly advance payments do not cover the actual costs incurred and accordingly demands a supplementary payment from the tenant, this supplementary payment only constitutes a present need to be satisfied pursuant to Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), at that point in time. According to the case law of the Federal Administrative Court regarding social assistance, the landlord's claim for supplementary payment could only arise and become due after the final accounting, and accordingly only constituted a fact to be satisfied as a present need at the time of its assertion (see Federal Administrative Court, Judgment of February 4, 1988 – 5 C 89/85 – BVerwGE 79, 46 = JURIS document, para. 10; Berlit, in: Münder [ed.], SGB II [3rd ed., 2009], Section 22, para. 20, with further references). N.).
The provisions in Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II) and Section 22 Paragraph 5 of the SGB II are mutually exclusive. This means that a current need for accommodation and heating expenses, which must be covered according to Section 22 Paragraph 1 Sentence 1 of the SGB II, cannot simultaneously constitute rent arrears within the meaning of Section 22 Paragraph 5 of the SGB II. A current need within the meaning of Section 22 Paragraph 1 Sentence 1 of the SGB II that has not yet been covered cannot, for example, simply transform into debt within the meaning of Section 22 Paragraph 5 of the SGB II through the mere passage of time. Therefore, debt within the meaning of Section 22 Paragraph 5 of the SGB II consists only of outstanding liabilities, meaning those not yet paid by the person in need, that originated before the commencement of receiving benefits to secure their livelihood under the SGB II. Furthermore, debts within the meaning of Section 22 Paragraph 5 of the German Social Code, Book II (SGB II) may arise during the ongoing receipt of benefits if the person in need of assistance does not fully meet their ongoing civil or public law obligations to third parties, even though the benefit provider had granted benefits in the legally prescribed amount (see Saxon State Social Court, decision of May 31, 2006 – L 3 B 273/05 AS-ER – paragraph 41).
With regard to the disputed back payment claim, a need within the meaning of Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II) cannot be denied simply because the plaintiff no longer resided in the accommodation to which the claim relates at the time the back payment claim became due. This is because, insofar as it concerns benefits for accommodation and heating, basic income support aims not only to protect those in need from homelessness by covering reasonable expenses. Rather, unemployment benefit II is intended to enable the affected individual and their family members living with them in a household unit to live a life in accordance with human dignity and to secure their livelihood within the framework of the socio-cultural minimum standard of living if they are unable to do so themselves (see German Federal Parliament Printed Matter 15/1516, pp. 44 et seq.). This means, however, that a person in need who has been continuously receiving benefits, who has properly fulfilled their obligations under a tenancy agreement, and whose accommodation and heating costs are reasonable, must not be left with part of these costs as debt.
A different rule might apply if the rent arrears originated from a period prior to the need for assistance, or if the recipient was no longer in need of assistance at the time the need arose (see Herold-Tews, in: Löns/Herold-Tews, SGB II [2nd ed., 2009], § 22 para. 22).
Note:
Whether such a claim exists, that is, whether the assessment of the need for assistance in such cases should be based on the point in time when the claim arose (in principle) or – at the earliest – on the point in time when it became due/was asserted, has not yet been decided by the highest court, as far as can be ascertained. It is therefore an unresolved legal question that cannot be answered simply and directly from the law. Against this background, it is not decisive that there are indeed compelling arguments in favor of the correctness of the view held by the 7th Senate of the Higher Social Court of North Rhine-Westphalia (LSG NRW, decision of November 14, 2008, file number L 7 B 262/08 AS).
2. 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 housing costs under Section 22 Paragraph 1 Sentence 1 of the SGB II, even if the ongoing costs can no longer be fully covered (Berlin-Brandenburg State Social Court, L 32 AS 1592/09, 28.12.2009, Decision).
6. Social Court Berlin S 128 AS 28212/08 28.01.2010, Judgment
Social court proceedings – scope of the claim – unemployment benefit II – procurement of items for the initial furnishing of an apartment – necessary needs
1. Even if the plaintiff is not legally represented at the time the lawsuit is filed, there are no objections to using the explanations provided in the statement of claim for the interpretation of the claim. If this interpretation reveals that the plaintiff, in his claim for initial furnishing of an apartment, does not specifically request a particular item, but later asserts this claim outside the time limit for filing a lawsuit pursuant to Section 87 Paragraph 1 Sentence 1 of the Social Court Act (SGG), the lawsuit is time-barred in this respect.
2. Section 23 Paragraph 3 Sentence 1 Number 1 of the German Social Code, Book II (SGB II) is not the correct legal basis for the procurement of floor coverings. In this respect, a claim can only be considered under Section 22 Paragraph 1 Sentence 1 of the SGB II (following the Federal Social Court's ruling of December 16, 2008 – B 4 AS 49/07 R – BSGE 102, 194).
3. Furnishings that are only required because the person in need of assistance has previously made an unnecessary change to the apartment are not eligible for reimbursement under Section 23 Paragraph 3 Sentence 1 Number 1 of the German Social Code, Book 2 (SGB 2).
6.1 – Social Court Berlin S 128 AS 25352/07 28.01.2010, Judgment
1. Payments from the equalization of accrued gains amounting to €500 per month are not income within the meaning of Section 11 of the German Social Code, Book II (SGB II), but rather assets (cf. already for unemployment assistance, Federal Social Court (BSG), judgment of June 8, 1989 – 7 RAr 34/88 – SozR 4100 § 138 No. 25), even if they were received after an application for unemployment benefit II (contra: Federal Social Court (BSG), judgment of September 30, 2008 (B 4 AS 29/07 R – SozR 4-4200 § 11 No. 15)).
2. Not only in the aforementioned judgment of June 8, 1989, but also in other cases, the jurisprudence of the Federal Social Court has consistently recognized that if assets are realized through sale – i.e., reallocated – at (or after) the application, this is not considered an "inflow of income" and therefore the proceeds are not to be taken into account as income (see Federal Social Court, judgment of June 20, 1978 – 7 RAr 47/77 – SozR 4100 § 138 No. 3; see also the Chamber's decision of December 14, 2009 – S 128 AS 38212/09 ER -).
3. If installment payments made on several due dates do not increase the assets but merely redistribute them (cf. Hengelhaupt in Hauck/Noftz, K § 12, Rn. 96; Brühl in LPK-SGB II, § 11, Rn. 15 ff.), it is not considered income within the meaning of § 11 SGB II).
4. The maintenance arrears payment of EUR 900 in three installments does not constitute income, but rather redistributes assets, as the claim is converted into money (contra SG Speyer, decision of June 1, 2006 – S 1 ER 161/06 AS -).
6.2 – Social Court Berlin S 128 AS 32434/08 28.01.2010, Judgment
Unemployment benefit II – Preliminary procedure – Reimbursement of travel expenses incurred due to a reporting appointment – Monthly travel pass
1. The procedural requirement of a preliminary procedure is also satisfied if the administration has only made an incomplete decision on the objection (following BSG, judgment of November 15, 1979 – 7 RAr 75/78 – SozR 4100 § 100 No. 5).
2. If a season ticket (here, a monthly ticket for the Berlin S-Bahn) was purchased independently of the reporting deadline pursuant to Section 59 of the German Social Code, Book II (SGB II) in conjunction with Section 309 of the German Social Code, Book III (SGB III), even a partial reimbursement of the costs for the season ticket is not possible. This is because such expenses did not arise "on account of the reporting" within the meaning of Section 309 Paragraph 4 of the German Social Code, Book III (SGB III).
7. Social Court Fulda S 10 AS 53/09 27.01.2010, Judgment
The court is convinced, however, that the plaintiff is entitled to adequate living space for two people – in accordance with the aforementioned guideline (version of January 19, 2004), amounting to 60 square meters. This additional need for living space arises from the fact that the interveners stay with the plaintiff for a period of time that justifies recognizing an increased need for living space in accordance with the principles developed by the Federal Social Court (BSG) regarding "temporary households" (BSG, judgment of November 7, 2006 – B 7b AS 14/06 R). According to the Federal Social Court (BSG) – a view fully endorsed by this chamber – the wording of Section 7 Paragraph 3 Number 4 of the German Social Code, Book II (SGB II) ("belonging to the household") does not require unmarried children to live permanently in the household of the respective employable person in need of assistance, as is required for other members of the benefit unit under Section 7 Paragraph 3 Numbers 2 and 3 of the SGB II. Rather, it suffices that the children regularly stay with a parent for more than one day, meaning that only sporadic visits are required. This interpretation of Section 7 Paragraph 3 Number 4 of the SGB II, which ensures a solution to the problem of visitation costs inherent in the SGB II, is necessary in light of the state's special obligation to promote welfare under Article 6 Paragraph 1 of the Basic Law (BSG, Judgment of November 7, 2006 – B 7b AS 14/06 R). That a temporary household community exists between the plaintiff and the interveners during the interveners' stays with the plaintiff is obvious in light of the Federal Social Court's (BSG) reasoning and is not disputed by the defendant. This temporary household community justifies, at least in the case of extensive contact with the children as here, granting the plaintiff additional living space for another person.
The question of whether and to what extent a temporary household should also be considered with regard to housing costs has not yet been decided by the highest court (the Federal Social Court (BSG) merely alluded to the problem in its judgment of July 2, 2009 – B 14 AS 36/08 R) and is not uniformly assessed in social court jurisprudence. For example, the Social Court of Duisburg, in its decision of March 31, 2009 (Case No.: S 5 AS 93/08), states that the state's special obligation to provide support under Article 6 Paragraph 1 of the Basic Law (GG) already implies that – provided that the presence of children in the household of a parent in need of assistance is regular and of a significant duration – a higher entitlement to housing benefits must exist. Similarly, the Higher Social Court of North Rhine-Westphalia (LSG NRW) emphasized in its decision of June 17, 2008 (Case No.: L 20 B 225/07 AS ER) that housing and heating costs under the German Social Code, Book II (SGB II) must be granted to an extent that does not prevent the exercise of visitation rights. While it is not appropriate to base the determination of visitation rights, particularly in cases of temporary cohabitation, solely on the number of members of the household present during visitation periods, the individual circumstances of each case must be considered. Criteria for determining an appropriate apartment size pursuant to Section 22 Paragraph 1 Sentence 1 of the SGB II could include, in particular, the amount of time spent exercising visitation rights, the age of the children, any individually increased space requirements, and, where applicable, the distance to the other parent's household. Depending on the circumstances, a supplement should therefore be considered for temporary households receiving benefits, based on the needs of the permanent members of the household, in accordance with state regulations on the promotion of social housing and the implementing provisions issued thereunder. In contrast, the Berlin-Brandenburg State Social Court, in its decision of December 5, 2008 (Case No.: L 25 B 2022/08 ER), held that a housing allowance for two people is only triggered if two people actually live in the apartment exclusively or predominantly. The mere fact that additional people are temporarily accommodated in the apartment does not automatically result in a permanently higher housing allowance. This follows from the consideration that otherwise, in similar cases, housing costs for four people would have to be covered for three people, which contradicts both the wording and the purpose of the law, insofar as Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II) stipulates that only actual housing costs are covered. In fact, it would not be possible for both the mother and father to each run a two-person household with the same child.
The Chamber is convinced that the latter view cannot be followed, particularly because it does not adequately consider the fundamental rights significance of Article 6 Paragraph 2 Sentence 1 of the Basic Law. In this respect, the Federal Constitutional Court already clarified in its decision of October 25, 1994 (Case No.: 1 BvR 1197/93) that Article 6, paragraph 2, sentence 1 of the Basic Law "stipulates that the care and upbringing of children is the natural right of parents and their primary duty. Article 6, paragraph 2 of the Basic Law, in addition to its significance as a guideline, simultaneously grants a right of defense against impermissible interference by the state in the parental right to raise their children and, in this respect, also binds the courts as directly applicable law (see BVerfGE 4, 52 (57)). Article 6, paragraph 2, sentence 1 of the Basic Law protects the free decision of parents as to how they wish to fulfill their natural parental responsibility (see BVerfGE 24, 119 (143)).".
The right of access of the non-custodial parent, like the parental custody of the other parent, is protected under Article 6, Paragraph 2, Sentence 1 of the Basic Law. If a marriage is dissolved and custody is granted to only one parent, this means that only that parent has the right to make the necessary decisions regarding the care and upbringing of the child and to actually exercise the corresponding parental functions. However, according to the legal regulations governing access rights, the child's bond with the other parent should be maintained and duly considered. The right of access enables the non-custodial parent to continuously ascertain the child's physical and mental well-being and development through observation and mutual agreement, to maintain the familial relationship with the child and prevent estrangement, and to address the need for affection on the part of both parents
Measured against this standard, it can be stated that, at least in cases where the familial relationship between the separated parent and their children is maintained through regular visits by the children to that parent, it must be ensured that suitable living space is available to allow for this. In this context, it cannot be demanded that the children "settle in" with the separated parent during these visits – regardless of the actual living conditions. Such a demand would, particularly in cases where the living space is designed for only one person, pose the risk that the familial relationship – as a consequence of permanent or regular cohabitation in cramped conditions – could not be maintained without hindrance, and consequently, at least in the long term, the possibility of visitation rights being thwarted. The community of life and upbringing protected by Article 6, paragraphs 1 and 2 of the Basic Law would then no longer be guaranteed. The court has therefore concluded that the plaintiff in the present case is entitled to additional living space for another person. This conclusion is based on the consideration that the question of the extent to which additional living space should be recognized in the case of a temporary household cannot be answered categorically. In particular, the full additional living space requirement cannot be applied to each child in every case of a temporary household – regardless of the extent of their stay with the non-custodial parent – as this could indeed lead to inequitable results, especially in cases where the temporary household includes three or more children. Furthermore, it must be taken into account that the total living space requirement for an additional person does not only refer to an additional room for living, but also covers the other proportionate space requirements for, for example, the bathroom, kitchen, storage room, etc. These other living space requirements must be assessed depending on the amount of time spent in the apartment. On the other hand, it must also be noted that when children spend half their time with each parent, the limit must be reached before both parents can be granted the additional living space allowance for the entire temporary household, in order to avoid disadvantaging the members of the respective shared household due to the separation. The court has therefore concluded that if the children regularly spend at least two weekends per month (corresponding to four to five days per month), half of the additional living space allowance must be granted for each child. Whether no additional living space allowance should be granted in cases of stays of less than four days per month need not be definitively decided here and, as explained above, depends on the specific circumstances of each case.
Furthermore, the court concluded that the additional living space requirement pertains solely to the plaintiff himself and not to the interveners. While the Federal Social Court (BSG), in its ruling on temporary cohabitation, distinguishes between the plaintiff's claims and those of his children living separately, stating in this context that the claimant is not generally the person obligated to pay maintenance, but rather the individual in need of their own expenses (BSG, Judgment of November 7, 2006 – B 7b AS 14/06 R), the court finds that this cannot apply to the issue of housing costs. In this respect, it must be considered that the parent with whom the children only stay temporarily must maintain the additional living space not just for the duration of their stay, but permanently. From a purely practical standpoint, this is only possible if there is also the certainty that the regularly due rent can be paid on time. In cases where a proportionate share of the housing costs would be paid directly to the children or to the parent with whom the children primarily reside, this would not be sufficiently guaranteed. The court is therefore of the opinion that the Federal Social Court's (BSG) statements regarding the proportional provision of benefits in the case of temporary shared households are not applicable to benefits for housing costs (see also Aachen Social Court, judgment of November 19, 2007, file no.: S 14 AS 80/07).
8. Unemployment as a prerequisite for receiving unemployment benefits
