The home ownership allowance can reduce the actual housing need
1. According to the established case law of the senates of the Federal Social Court responsible for basic income support law, interest on debts and ancillary costs for homeowners or apartment owners are generally only to be covered up to the amount of the rental costs of a comparable, reasonable rental apartment.
2. As the 4th Senate of the Federal Social Court has already indicated (judgment of March 3, 2009, B 4 AS 38/08 R), the home ownership allowance can reduce the actual housing costs, insofar as it leads, for example, to a reduction in mortgage interest. Housing costs can only be taken into account up to the amount of the actual need.
The home ownership allowance is not a benefit earmarked for a specific purpose within the meaning of Section 83 of the German Social Code, Book XII (SGB XII) and is therefore to be counted as income within the meaning of Section 82 of the German Social Code, Book XII (SGB XII) when calculating the amount of social assistance (Fulda Social Court, judgment of November 3, 2009, file number: S 7 SO 19/08, 2nd instance Hessian State Social Court L 6 SO 201/09).
1.1 – BSG B 14 AS 53/08 R, Judgment of 18.02.20010
The Federal Social Court (BSG) has ruled that the reduction of unemployment benefit II for refusing to perform a one-euro job is only permissible if the recipient has been previously informed about the legal consequences of a breach of duty.
The sanction provisions of Section 31 Paragraph 1 Sentence 1 Numbers b and c of the German Social Code, Book II (SGB II) require that the person in need of assistance has been informed about the legal consequences of a breach of duty. The instruction regarding these legal consequences must be specific, understandable, correct, and complete. In particular, it is necessary to apply the relevant behavioral guidelines and possible measures to the circumstances of the specific individual case. These strict requirements for the content of the instruction regarding legal consequences are primarily necessary because, as established by the decision of the Federal Constitutional Court of February 9, 2010 (1 BvL 1/09, 3/09, 4/09), the reduction of basic income support benefits constitutes a serious infringement. An instruction regarding legal consequences is unlawful if it essentially consists of a reproduction of the legal text.
Note: See also Social Court Dortmund, decision of 05.01.2009, file number: S 22 AS 369/09 ER
1.2 – BSG B 4 AS 29/09 R, Judgment of 18.02.2010
Employable severely disabled persons receiving Hartz IV benefits are not entitled to additional needs allowances for disability.
1. Employable severely disabled persons receiving Hartz IV benefits are not entitled to additional needs allowances for disability (North Rhine-Westphalia State Social Court L 7 AS 102/08, March 12, 2009, judgment, confirmed by the Federal Social Court B 4 AS 29/09 R, judgment of February 18, 2010). There is no statutory basis in the German Social Code, Book II (SGB II) for a claim to higher benefits. Likewise, an analogous application of Section 28 Paragraph 1 Sentence 3 No. 4 SGB II or Section 30 Paragraph 1 No. 2 SGB XII is precluded. A claim under these provisions fails in any case because the regulations only apply to those in need of assistance who are incapable of working. The 14th Senate has already ruled that extending the eligibility criteria beyond the literal wording to include employable persons is not permissible. The present Senate concurs, as there is no unintended gap in the law (cf. Federal Social Court B 14 AS). 42/08 R, Judgment of 21.12.2009).
2. However, the Senate is unable to decide to what extent there is an entitlement to benefits under Article 1 Paragraph 1 in conjunction with Article 20 Paragraph 1 of the Basic Law to cover an ongoing, not merely one-off, special need that must be met to guarantee the minimum subsistence level. If, in ongoing and not yet concluded proceedings, there are indications of an atypical need, it is necessary to determine the specific need and subsequently assess whether it is a need that must be met in accordance with the decision of the Federal Constitutional Court of February 9, 2010.
A community of need also exists in the case of a marriage of convenience.
1. If a benefit recipient and their spouse live separately after marriage, there is no shared household (
Lower Saxony-Bremen State Social Court, judgment of March 24, 2009, case no. L 7 AS 682/06). The Federal Social Court (BSG) holds a different view (B 4 AS 49/09 R, judgment of February 18, 2010), according to which a shared household exists even in a marriage of convenience. In this respect, the BSG generally follows the principles developed for the family law concept of separation, according to which separation is to be denied in constellations of this kind unless an intention to separate is documented. The structure of the German Social Code, Book II (SGB II), does not imply that the SGB II is based on a different concept of separation, one that would allow for the dispensation of establishing an intention to separate as defined by family law jurisprudence.
1.4 – BSG B 4 AS 28/09 R, Judgment of 18.02.2010
No reimbursement of the real estate agent's commission paid in advance by the person in need of assistance for the sale of their own home, as this is not a cost of finding accommodation or moving within the meaning of Section 22 Paragraph 3 Sentence 1 of the German Social Code, Book II (North Rhine-Westphalia State Social Court L 19 AS 61/08, judgment of March 2, 2009, confirmed by the Federal Social Court – B 4 AS 28/09 R-, judgment of February 18, 2010).
The real estate agent's commission is not included in the housing costs according to Section 22 Paragraph 1 of the German Social Code, Book II (SGB II). According to this provision, benefits for accommodation and heating are provided in the actual amount, provided they are reasonable. The expenses must be necessary for securing and maintaining the accommodation. This is precisely not the case with costs incurred in connection with the sale of residential property. Nor are they housing procurement or moving costs within the meaning of Section 22 Paragraph 3 Sentence 1 of the SGB II. The Senate has already expressly ruled that housing procurement costs only apply if they arise in connection with finding and renting an apartment. The term "moving costs" is to be understood in a narrow sense.
Note: Section 22 Paragraph 3 Sentence 1 SGB II
The moving costs to be covered by the basic income support provider under this provision are limited to the actual costs of the move, such as transport costs, costs for an assistant, necessary insurance, petrol costs and packing material (see judgment of the Senate of 16.12.2008 – B 4 AS 49/07 R – para. 13 ff).
FEDERAL SOCIAL COURT Judgment of 16 December 2008, B 4 AS 49/07 R
13 RdNr.
According to Section 22 Paragraph 3 Sentence 1 of the German Social Code, Book II (SGB II), in the version applicable here as amended by the Fourth Act for Modern Services on the Labor Market of December 24, 2003 (Federal Law Gazette I 2954), housing procurement costs, as well as a rental deposit and moving expenses, can be covered by the local authority upon prior approval. The prevailing opinion in case law and legal literature interprets the terms "housing procurement costs" and "moving expenses" broadly (see Lower Saxony-Bremen Higher Social Court, decision of September 11, 2006 – L 9 AS 409/06 ER; Lower Saxony-Bremen Higher Social Court, decision of January 10, 2007 – L 13 AS 16/06 ER; regarding the legal situation under the Federal Social Assistance Act).<BSHG> Higher Administrative Court of North Rhine-Westphalia, decision of September 8, 1994 – 24 E 686/94; Berlit in LPK-SGB II, 2nd ed. 2007, § 22 para. 100; Gerenkamp in Mergler/Zink SGB II, § 22 para. 8, 32; Lang/Link in Eicher/Spellbrink SGB II, 2nd ed. 2008, § 22 para. 83). However, their limitations are already evident in the wording. Thus, housing procurement costs are only expenses associated with finding and renting the apartment (cf. only Kahlhorn in Hauck/Noftz SGB II, as of VII/2007, § 22 para. 57; Piepenstock in juris-PK-SGB II, 2nd ed. 2007, § 22 para. 124; presumably also Berlit in LPK-SGB II, 2nd ed., 2007, § 22 para. 100).
1.5 – BSG B 14 AS 56/08 R, Judgment of 28.10.2009
Late submission of the application form for unemployment benefit II does not lead to forfeiture
The application for basic income support for jobseekers is not subject to any formal requirements (see Section 37 Paragraph 1 of the German Social Code, Book II (SGB II), Section 9 Sentence 1 of the German Social Code, Book X (SGB X)). If an applicant returns the completed application form provided by the benefits agency only a considerable time later (here, after approximately seven months), they may still be entitled to unemployment benefit II for the intervening period. At least, the entitlement for this period is not forfeited. It is the responsibility of the basic income support agency to ensure that the applicant submits clear and relevant applications without delay and supplements any incomplete information (Section 16 Paragraph 3 of the German Social Code, Book I (SGB I)). The applicant is obligated to cooperate and, in particular, must identify evidence and, upon request, submit supporting documents or consent to their submission (Section 60 Paragraph 1 Sentence 1 Number 3 of the German Social Code, Book I (SGB I)). Section 66 of the German Social Code, Book I (SGB I) provides for the sanction of benefit denial in the event of a lack of cooperation or late cooperation, provided the conditions specified therein are met. The basic income support provider must make use of these instruments of the social law administrative procedure.
1.6 – BSG B 4 AS 13/09 R, Judgment of 22.09.2009
No entitlement to the conclusion of an integration agreement
Recipients of unemployment benefit II have no legal right to demand an individual integration agreement from the social security agency. While the agency is required to conclude an integration agreement with every employable person in need of assistance (§ 15 para. 1 sentence 1 SGB II), this is purely a procedural requirement intended to guide the actions of the social security agency. In this respect, the agency makes a non-judicial discretionary decision regarding which procedural path it chooses to achieve the goal of integrating the employable person in need of assistance. The employable person in need of assistance cannot suffer any legal disadvantage by "not negotiating," especially since they can have the substantive outcome of an integration benefit, whether approved or denied by administrative act, fully reviewed by a court. Likewise, there is no legal entitlement to the appointment of a personal contact person, because the relevant provision in this respect (§ 14 sentence 2 SGB II) is a procedural guideline addressed to the basic income support provider, aimed at achieving the goal of integration. The plaintiff's entitlement to integration benefits remains unaffected.
1.7 – BSG B 14 AS 55/08 R, Judgment of 28.10.2009
1. Severance payments resulting from a settlement before a labor court constitute income within the meaning of Section 11 Paragraph 1 of the German Social Code, Book II (SGB II) (see also the judgment of March 3, 2009, B 4 AS 47/08 R). In particular, this is not privileged income within the meaning of Section 11 Paragraph 3 No. 1 of the German Social Code, Book II (SGB II).
2. There are also no objections to the fact that, according to Section 2 Paragraph 3 of the Regulation on Unemployment Benefit II (as amended on August 22, 2005, loc. cit.), the severance payment was distributed as a one-off payment over a period of six months (regarding the so-called distribution period, see judgments of the 4th Senate of the Federal Social Court of September 30, 2008 – B 4 AS 57/07 R – and – B 4 AS 29/07 R – BSGE 101, 291 = SozR 4-4200 § 11 No. 15; as well as judgment of December 16, 2008 – B 4 AS 48/07 R). Section 2, paragraph 3, sentence 3 of the Regulation on Unemployment Benefit II (Alg II-V) in the version applicable here, dated August 22, 2005 (loc. cit.), stipulated that one-off payments, unless a different arrangement is appropriate in a specific case, are to be spread over a reasonable period and included monthly in the calculation as a corresponding partial amount. The corresponding regulation was already implicitly approved by the 4th Senate of the Federal Social Court (BSG) from a constitutional perspective (see BSGE 101, 291 = SozR 4-4200 § 11 No. 15, paragraph 23 in each case).
3. With the authorization contained in Section 13 Paragraph 1 Number 1 of the German Social Code, Book II (SGB II), to regulate by ordinance "how income is to be calculated in detail," the legislator of the SGB II also follows a long tradition of those authorized to issue ordinances. The SGB II expressly intended to adhere to the tradition of social assistance law (Federal Social Assistance Act) with regard to the consideration of the income of employable persons in need of assistance.<BSHG> ), regarding the consideration of assets, the regulation follows the tradition of employment promotion law (SGB III or Employment Promotion Act) (see BT-Drucks 15/1516, p. 53). Section 13 para. 1 no. 1 SGB II therefore also corresponds to Section 76 para. 3 BSHG (old version), which authorized the legislator to determine "details regarding the calculation of income". No serious constitutional doubts have been raised regarding the sufficient definiteness of this enabling provision and the conformity of the regulation to Section 76 BSHG with the enabling provision (for the conformity of the former Unemployment Assistance Ordinance with the enabling provision due to the similarly broadly worded Section 206 no. 1 SGB III (old version), see in detail BSGE 91, 94, 98 ff = SozR 4-4220 § 6 no. 1).
2. Bavarian State Social Court L 16 AS 779/09 B ER 09.12.2009, Decision
In addition to a long-term, cohabiting or unregistered same-sex partnership and the mutual intention to assume responsibility for and support one another, cohabitation in a shared household in the sense of a shared residence and economic community is also required.
Refusal of entry (home visit) cannot be grounds for denying benefits under Section 66 Paragraph 1 Sentence 1 of the German Social Code, Book One (SGB I), as consent to a home visit is not among the obligations to cooperate listed in Sections 60 to 65a of the SGB I.
1. According to Section 9 Paragraph 2 Sentence 1 of the German Social Code, Book II
(SGB II), the income and assets of a partner must also be taken into account for persons living in a household receiving benefits. According to Section 7 Paragraph 3 Number 3c of the SGB II (in the version applicable from August 1, 2006), the partner of an employable person receiving benefits is considered part of the household receiving benefits if they live with them in a shared household in such a way that, upon reasonable assessment, a mutual intention to assume responsibility for and support each other can be assumed. This intention is presumed according to Section 7 Paragraph 3a of the SGB II if the partners 1. have lived together for more than one year, 2. live together with a shared child, 3. care for children or relatives in the household, or 4. are authorized to dispose of the other's income or assets.
Based on circumstantial evidence and an overall assessment, it must be determined whether a community of support exists in the aforementioned sense, whereby not every form of cohabitation, but only qualified cohabitation within a shared household, triggers the presumption under Section 7 Paragraph 3a of the German Social Code, Book II (SGB II). For the assumption of a community of responsibility and support within the meaning of Section 7 Paragraph 3 Number 3c of the SGB II, three conditions must be met. In addition to a long-term, marriage-like or unregistered same-sex partnership and the mutual intention to assume responsibility for and support one another, contrary to the statements of the agency... Living together in a shared household in the sense of a residential and economic community is also required (see, e.g., Spellbrink in: Eicher/Spellbrink, SGB II, 2nd edition 2008, § 7 para. 44ff, each with further references, LSG Saxony, decision of 10 September 2009, file no. L 7 AS 414/09 B ER). For cohabitation to be valid, long-term shared living arrangements are necessary (see also, e.g., BSG, judgment of 17 October 2007 – B 11a/7a AL 52//06 R,
para. 17ff – referring to § 7 para. 3 no. 3c and para. 3a SGB II, Hauck/Noftz, SGB II, volume 1, K § 7 para. 56a). The concept of an economic community differs from that of a shared apartment in that its members do not merely live temporarily in the same dwelling, but rather manage a joint household by sharing expenses from a common pool (see Federal Social Court [BSG], judgment of February 19, 2009 – B 4 AS 68/07 R, para. 13, with further references). The requirements for shared financial management therefore extend beyond the shared use of a bathroom, kitchen, and possibly common areas. Even the common practice in shared apartments of jointly purchasing basic foodstuffs, cleaning supplies, and toiletries from a communal fund contributed equally by all members does not, in itself, constitute an economic community (see Federal Social Court [BSG], judgment of January 27, 2009 – B 14 AS 6/08 R).
2. In addition, the Senate points out that, in the case of a home visit to clarify the existence of a shared household, the necessity of such a measure must be explained and weighed against other means of obtaining information. The consequences of a refusal are not legally defined. However, a refusal of entry cannot be used to justify a denial of benefits under Section 66 Paragraph 1 Sentence 1 of the German Social Code, Book One (SGB I), since consent to a home visit is not among the obligations to cooperate listed in Sections 60 to 65a of the SGB I. Nevertheless, the possibility remains to deny benefits if the facts cannot be clarified and the need cannot be determined (see Münder, SGB II, 3rd edition 2009, Appendix Procedure, para. 17; Baden-Württemberg Higher Social Court, decision of January 22, 2008, file no. L 7 AS 6003/07 ER B).
3. The requested benefits for past periods cannot regularly be granted by way of preliminary legal protection proceedings, but must be asserted in main proceedings, because the purpose of preliminary legal protection is to eliminate an acute emergency (see also LSG Hessen decision of 26.10.2005, L 7 AS 65/05 ER, LSG Berlin-Brandenburg decision of 13.02.2006, L 10 B 1354/05 AS).
The request by the benefit provider to submit documents does not constitute an administrative act.
A request pursuant to Section 60 of the German Social Code, Book I (SGB I), is not an administrative act within the meaning of Section 31 of the German Social Code, Book X (SGB X); it merely serves to prepare for a potential administrative decision (Federal Social Court [BSG] judgment of February 19, 2009 – B 4 AS 10/08 R –; Higher Social Court [LSG] Baden-Württemberg judgment of December 14, 2007 – L 13 AS 428/07 AS –; Higher Social Court [LSG] North Rhine-Westphalia decision of September 9, 2009 – L 12 B 71/09 AS NZB). Furthermore, the letter does not contain any provision within the meaning of Section 31 Paragraph 1 Sentence 1 of the German Social Code, Book X (SGB X). A provision is a decision aimed at bringing about a direct legal consequence. It is particularly relevant when and to the extent that rights are established, amended, revoked or definitively determined, or when the establishment, amendment, revocation or definitive determination of such rights is rejected (BSG judgment of 17.10.2006, aaOmwN).
3.1 – North Rhine-Westphalia State Social Court L 12 SO 45/08 27.01.2010, Judgment
Major repairs and alterations were not considered eligible expenses within the meaning of Section 29 of the German Social Code, Book XII (SGB XII), in this case for the installation of six new windows and two new front doors.
According to Section 42 Paragraph 1 Number 2 of the German Social Code, Book XII (SGB XII), basic income support for the elderly and those with reduced earning capacity includes, among other things, expenses for accommodation and heating in accordance with Section 29 SGB XII. However, there is no legal basis for the claim asserted by the plaintiff. Major repairs and renovations are not considered eligible expenses. While routine maintenance may be included in the relevant costs, it is not the purpose of transfer payments under the SGB XII, which are financed from public tax revenue, to finance fundamental renovation and maintenance work. The Higher Social Court of North Rhine-Westphalia (LSG NRW) ruled in a judgment dated March 13, 2009 – L 9 SO 9/07 – that extensive roof renovation following storm damage does not fall under regularly occurring maintenance expenses and is therefore not eligible for consideration. This is also consistent with a decision of the Federal Social Court (BSG) dated November 7, 2006 – B 7b AS 8/06 R –. It is not the purpose of the benefits provided under the German Social Code, Book XII (SGB XII), to build up assets. Applying these principles, the plaintiff could, under certain circumstances, claim the repair costs for the repair of a lock or frame of the windows or front doors, but not the cost of six new windows and two new front doors.
In addition and for clarification, the Senate points out that the installation of windows and doors does not constitute minor repairs or periodic or regularly occurring repairs, as the replacements in dispute here only occur at longer intervals, namely over the course of several decades. The upgrades carried out after such periods incorporate the intervening technological advancements into the property and are therefore primarily to be regarded not as maintaining value, but as increasing it. This increase in value is particularly evident in the case of new windows, since single-glazed windows are hardly available on the market today, meaning that only the installation of thermally insulated windows is possible. The presence of such windows is undeniably a value-enhancing factor for the property.
4. Schleswig-Holstein State Social Court L 6 AS 24/09 25.11.2009, Judgment
Loan repayments for a rental deposit may not be deducted from Hartz IV benefits. The withholding of monthly loan repayments for a rental deposit cannot be based on Sections 23 and 43 of the German Social Code, Book II (SGB II)
1. Set-off is the exercise of a contractual right of disposition by way of a public-law declaration of intent (see Keller in Meyer-Ladewig/Keller/Leitherer, Sozialgerichtsgesetz (SGG), 9th ed. 2008, Appendix § 54 para. 4c). It is unnecessary to decide here in what form this declaration of intent may be made and whether the authority is empowered to regulate set-off by administrative act. However, the Federal Social Court's jurisprudence argues against classifying this as an administrative act. According to this jurisprudence, effective set-off alone extinguishes claims without altering or otherwise regulating the right established in the administrative act (Federal Social Court, Judgment of July 24, 2003 – B 4 RA 60/02 R, SozR 4 1200 § 52 No. 1; subsequently Higher Social Court of Baden-Württemberg, Judgment of May 31, 2005 – L 13 KN 702/2005; Higher Social Court of North Rhine-Westphalia, Decision of September 19, 2007 – L 19 B 72/07 AS ER). The defendant's notification regarding the withholding of loan repayments cannot be considered an administrative act because the defendant, in its security deposit approval notice of March 4, 2008, merely referred to the declaration signed by the plaintiff on February 25, 2008. In the subsequent grant notice of March 4, 2008, the agency deducted the repayment installment from the total of the current benefits in the needs assessment attached to the notice, without specifying it in a separate operative clause, thus resulting in a reduced payment amount. This does not express an intention to regulate the offsetting as an administrative act, i.e., as a unilateral sovereign measure (cf. Section 33 of the Tenth Book of the German Social Code, SGB X). Therefore, there is no regulation that qualifies as an administrative act (as also held by the Higher Social Court of Hesse, decision of January 16, 2008 – L 9 SO 121/07 ER; Higher Social Court of Baden-Württemberg, decision of September 6, 2006 – L 13 AS 3108/06 ER-B).
2. Loan installments for a rental deposit may not be deducted from Hartz IV benefits. The withholding of monthly loan repayments for a rental deposit cannot be based on Sections 23 and 43 of the German Social Code, Book II (SGB II).
3. Sections 51 and 54 of the German Social Code, Book I (SGB I) only allow offsetting to the extent that the claims of the beneficiary are subject to attachment.
4. Pursuant to the principle of good faith, as regulated in Section 242 of the German Civil Code (BGB) and applicable via Section 61 Sentence 2 of the German Social Code, Book X (SGB X), the authority is precluded from relying on such a declaration as a legal basis for set-off if it itself caused the inclusion of the unlawful repayment agreement in the declaration. This would constitute an abuse of rights (see Higher Social Court of Hesse, Decision of January 16, 2008 – L 9 SO 121/07 ER; Higher Social Court of Baden-Württemberg, Decision of September 6, 2006 – L 13 AS 3108/06 ER B; Higher Administrative Court of Lower Saxony, Decision of March 27, 2003 – 12 ME 52/03; Lang/Link in Eicher/Spellbrink, SGB II, 2nd ed., Section 22, para. 22). The same applies if the repayment agreement is interpreted as a waiver within the meaning of Section 46 Paragraph 1 Sentence 1 of the German Social Code, Book I (SGB I). Here, too, an abuse of rights would exist if the waiver had been unlawfully brought about by the benefit provider.
5. SG Chemnitz S 6 AS 2054/09 of 10.02.2010, Judgment
Expenses for long-distance truck drivers are not deductible from Hartz IV benefits
The Chemnitz Social Court has ruled that expenses for long-distance truck drivers are not eligible for Hartz IV benefits.
The social courts are dealing with a large number of disputes concerning unemployment benefit II (ALG II), which revolve around questions of income consideration. Despite being employed, many workers, especially those with families, rely on supplementary unemployment benefit II (so-called "top-up" recipients). Recently, the social courts have increasingly had to clarify whether certain payments from employers, in addition to wages, should even be considered income. If so, these payments must be deducted from the unemployment benefit II. This includes, for example, holiday and night work bonuses, per diem allowances, and expense payments. Those affected invoke the exception clause according to which "earmarked" income is not to be considered as income if it serves a purpose other than basic income support and does not improve the recipient's situation to such an extent that these benefits would no longer be justified (§ 11 para. 3 no. 1a SGB II). In the specific case, the social court had to decide on the expenses of a long-distance truck driver for work-related additional meal costs. The monthly expense allowances for the driver employed in European long-distance transport fluctuated between €216.00 and €546.00. The defendant, ARGE SGB II Mittweida, considered these expense allowances as income and deducted them from the plaintiff's benefits.
The Chemnitz Social Court has now ruled that the expenses paid by the employer are not to be counted as income. According to the court's reasoning, these are earmarked payments within the meaning of Section 11 Paragraph 3 No. 1a of the German Social Code, Book II (SGB II). Unlike unemployment benefit II, they are not intended to secure the actual livelihood. The purpose of the expense payments is to compensate for the additional expenses incurred by the plaintiff's work as a long-distance truck driver with multi-day trips abroad. Truck drivers regularly incur additional living expenses, such as costs for hygiene at rest stops or truck stops, which they cannot avoid. Due to regulations on driving and rest times in commercial freight and passenger transport within the European Union, they are forced to regularly stop at rest stops and spend extended periods of time there. However, truck drivers' vehicles are not equipped with kitchens or bathrooms, forcing them to use rest stops. The defendant was ordered to make further payments. An appeal against the decision of the Social Court can be lodged with the Higher Social Court.
The Chemnitz Social Court had already similarly assessed the per diems (or allowances), which are particularly important in the construction industry, in an expedited decision dated January 15, 2010 (Case No.: S 26 AS 7050/09 ER). These additional payments from the employer are intended to cover the extra expenses incurred in connection with work away from home, for example, a construction worker on site. They have a different purpose than basic income support benefits under the German Social Code, Book II (SGB II), and are therefore earmarked income within the meaning of Section 11 Paragraph 3 No. 1a of the SGB II. However, a limit must be set for these per diems or allowances where the payments are essentially disguised wage payments. In such cases, they are fully offset against other benefits.
Judgment of the Social Court Chemnitz of 28 January 2010
Ref.: S 6 AS 2054/09
Source: Press release from SG Chemnitz dated February 10, 2010
LNCA 2010, 175550
Chemnitz
Social Court
,
Straße der Nationen 2-4, 09009 Chemnitz,
Press Officer,
Email: Pressesprecher-P-sgc@sgc.justiz.sachsen.de
Expenses for long-distance truck drivers not countable towards Hartz IV benefits.
Numerous disputes concerning the crediting of income of Hartz IV recipients.
Judgment of the Chemnitz Social Court of January 28, 2010 – S 6 AS 2054/09 – in the matter of “Hartz IV and Income”.
The social courts are dealing with a large number of disputes concerning unemployment benefit II, which revolve around questions of income consideration. Despite being employed, many workers, especially those with families, depend on supplementary unemployment benefit II (so-called top-up recipients).
Recently, the social courts have increasingly had to clarify whether certain payments from employers in addition to wages should even be considered income. If so, these payments must be credited against unemployment benefit II. This concerns, for example, holiday and night work bonuses, per diem allowances, or expense payments. Those affected are invoking the exception clause according to which "earmarked" income is not to be considered as income if it serves a purpose other than basic social security benefits and does not improve the recipient's situation to such an extent that these benefits would no longer be justified (§ 11 para. 3 no. 1a of the German Social Code, Book Two – SGB II).
In the specific case, the Social Court had to decide on the expenses of a long-distance truck driver for work-related additional meal costs. The monthly expense payments for the driver, who was employed in European long-distance transport, fluctuated between €216.00 and €546.00. The defendant, the Mittweida Job Center (ARGE SGB II), had considered these expense payments as income and deducted them from the plaintiff's benefits. The Chemnitz Social Court has now ruled that the expenses paid by the employer are not to be deducted. According to the court's reasoning, these are earmarked payments within the meaning of Section 11 Paragraph 3 No. 1a of the German Social Code, Book II (SGB II). Unlike unemployment benefit II, they are not intended to secure the actual livelihood. The purpose of the expense allowance is to compensate for the additional expenses incurred by the plaintiff's work as a long-distance truck driver, which involves multi-day trips abroad.
Truck drivers regularly incur additional living expenses, such as costs for hygiene at rest stops or truck stops, which they cannot avoid. Due to regulations concerning driving and rest times in commercial freight and passenger transport within the European Union, they are required to regularly stop at rest stops and spend extended periods of time there. However, truck drivers' vehicles are not equipped with kitchens or bathrooms, forcing them to use rest stops.
The defendant was ordered to make further payments. An appeal against the Social Court's decision can be filed with the Higher Social Court.
2.
The Chemnitz Social Court had already similarly assessed the per diems (or allowances), which are particularly important in the construction industry, in an expedited decision dated January 15, 2010 – S 26 AS 7050/09 ER. These additional payments from the employer are intended to cover the extra expenses incurred in connection with work away from home, e.g., a construction worker on site. They have a different purpose than basic income support benefits under the German Social Code, Book II (SGB II), and are therefore earmarked income within the meaning of Section 11 Paragraph 3 No. 1a SGB II.
However, the following applies to per diems or allowances: A limit must be drawn where the payments are essentially disguised wage payments. In such cases, they are fully offset against other benefits.
Martin Israng,
Judge at the Social Court,
Press Spokesperson.
For inquiries, please contact me by telephone at +49 371 4538439
6. Social Court Berlin S 128 AS 44433/09 04.02.2010, Decision
Basic income support for job seekers – means test – consideration of income or assets – returns from shares in a fund – asset ownership – existence of a hidden trust relationship – no distribution of the one-off payment over a future period
1. There is no general principle that a disguised trustee who creates the appearance of ownership of assets must be held to this appearance during means-testing by social welfare agencies. This also applies accordingly to income derived from the assets. However, a strict standard must be applied when examining whether a trust relationship actually exists; the trustee's actions in the interest of another must be clearly recognizable (application of the case law of the Federal Social Court, judgment of May 24, 2006 – B 11a AL 49/05 R – to the law on basic income support for job seekers).
2. The unambiguous recognizability of the action being in the interest of another cannot be established retrospectively.
3. There is no entitlement to the distribution of the one-off income over future periods if taking the income into account does not fully eliminate the need of the person in need and the obligation of the basic income support providers to provide benefits in the month of receipt (following BSG, judgment of 30 September 2008 – B 4 AS 57/07 R).
4. The purpose of Section 2 Paragraph 3 Sentence 3 of the ALG II-V is not to allow the insurance allowance to be applied multiple times for the same income by distributing the income over several months.
7. Cologne Higher Regional Court, Judgment of December 9, 2009 – 2 U 46/09
A will for the needy and a waiver of compulsory inheritance by a recipient of social benefits are not immoral
