For the calculation of the subsidy according to § 22 para. 7 SGB II
1. It is disputed whether the calculation of the subsidy is governed by the regulations of the German Social Code, Book II (SGB II) or the Federal Training Assistance Act (BAföG), and to what extent child benefit can be taken into account. Some argue that the general concept of income and asset assessment under SGB II should apply. However, according to Section 22 Paragraph 7 of SGB II, this income assessment can only relate to housing costs in isolation (see Baden-Württemberg Higher Social Court, decision of February 21, 2008 – L 7 AS 403/08 ER-B –; Bremen Higher Administrative Court, decision of February 19, 2008 – S 2 B 538/07 –). Another view holds that the entitlement under Section 22 Paragraph 7 of the German Social Code, Book II (SGB II) depends solely on the amount of uncovered accommodation costs, without requiring a needs or income calculation under the SGB II, in particular according to Section 11 of the SGB II (see Higher Social Court of Mecklenburg-Western Pomerania, decision of March 25, 2008 – L 8 B 130/07 –). Some also argue that a total need must be determined according to the SGB II and compared to the available total income adjusted according to the standards of the SGB II, whereby an isolated crediting of income solely against the accommodation need under Section 22 Paragraph 7 of the SGB II is not permissible (Higher Social Court of Berlin-Brandenburg – decision of June 3, 2008 – L 28 B 819/08 AS –).
2. Adjusted child benefit as income is not to be deducted separately from the housing allowance under Section 22 Paragraph 7 of the German Social Code, Book II (SGB II). However, this supplementary benefit, together with educational assistance and child benefit, must be limited to the hypothetical total amount of all benefits for a recipient who is not excluded from receiving benefits under the SGB II (these total benefits consist of the supplementary SGB II benefit, the BAföG benefit, and child benefit). A complete hypothetical calculation of the entitlements must be performed in the case of supplementary SGB II benefits in addition to educational assistance (see also, in effect, the decision of the Berlin Social Court of May 4, 2007 – S 102 AS 932/07 ER).
3. Separately considering child benefit when calculating uncovered housing costs would lead to inconsistencies with the fact that child benefit is not considered income under the Federal Training Assistance Act (BAföG). BAföG benefits are also means-tested, meaning that income and assets are taken into account (see Section 21 BAföG). This means that child benefit has not been considered since April 1, 2001 (deletion of Section 21, Paragraph 3, No. 3 BAföG). This amendment to Section 21 BAföG (through the Law on the Reform and Improvement of Educational Assistance – Educational Assistance Reform Act of March 19, 2001) was intended to increase the standard rates in order to significantly expand the pool of eligible students. Removing child benefit from the definition of income has the same effect as a significant additional increase in tax allowances (see Bundestag printed matter 14/4731, p. 21; regarding the connection with the decision of the Federal Constitutional Court of November 10, 1998 – 2 BvR 1057/91 – concerning the expansion of tax allowances to include an allowance for care, upbringing, or education, see Hessian State Social Court, decision of April 24, 2008 – L 7 AS 10/08 B ER). An isolated crediting of child benefit against uncovered housing costs would contradict this objective. As a result, the "additional" child benefit would not benefit BAföG recipients, even though it is functionally attributable to basic needs and therefore ultimately compensates for a shortfall in basic needs compared to the standard benefit under Book II of the German Social Code (SGB II). The applicant does not have the basic allowance of €348 under Section 12 Paragraph 2 of the Federal Training Assistance Act (BAföG) solely available to cover living expenses. Unlike the standard benefit under Section 19 of the German Social Code, Book II (SGB II), €52 of the basic allowance is allocated to housing costs (by implication from Section 19 Paragraph 3 of the BAföG). Such an offset would actually put BAföG recipients who are excluded from benefits under the SGB II at a disadvantage compared to BAföG recipients who receive supplementary SGB II benefits. For this latter group, the additional expenses related to their education could be deducted from the BAföG allowance, which would otherwise be considered income. For example, under the new regulations in Section 1 Paragraph 1 Number 10 of the German Regulation on Unemployment Benefit II (Alg II-V), effective January 1, 2008, educational assistance benefits are not considered income to the extent that they are used for travel expenses or training materials. This possibility of adjusting income to account for the special needs related to education would be eliminated if child benefit were offset against uncovered housing costs in isolation. The applicant would then have to cover the additional training-related expenses, such as travel costs and training materials, from their other benefits (basic allowance under the Federal Training Assistance Act (BAföG) and child benefit). This would undermine the objective of Section 22 Paragraph 7 of the German Social Code, Book II (SGB II), which aims to supplement the BAföG benefits that are insufficient to cover housing costs. The purpose of Section 22 Paragraph 7 SGB II is to prevent trainees from having to discontinue their education because the flat-rate allowances for accommodation and heating included in their educational assistance benefits do not cover the actual costs (Bundestag Printed Matter 16/1410, p. 24) and do not guarantee their basic needs. This objective would be jeopardized in many cases.
2. State Social Court of North Rhine-Westphalia L 7 B 89/09 AS 10.02.2010 legally binding decision
The instruction on legal consequences must be specific, understandable, correct and complete (BSG of 16.12.2008, B 4 AS 60/07 R, BSGE 102, 201; BSG of 17.12.2009, B 4 AS 30/09 R, see also the report on the hearing No. 70/09 of the BSG of 17.12.2009).
1. The notification of legal consequences dated July 3, 2008, states that in the event of an unannounced or unauthorized absence from the place of residence, the entitlement to unemployment benefit II ceases "from the first day of absence." At the same time, the text of the sanction provision of Section 31 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), was attached to the notification of legal consequences. Thus, it was not clear to the applicant which legal consequence – cessation of entitlement or reduction of benefits – would apply in the event of an unauthorized absence from the place of residence (see also the decision of the 19th Senate of the Higher Social Court (LSG) of North Rhine-Westphalia (NRW) dated July 13, 2009 – L 19 B 69/09 AS – in the parallel proceedings of the applicant's wife).
Existing construction noise in the house for many years does not necessitate a move if the landlord has not been asked to remedy the defects.
Insofar as the plaintiffs have relied on the construction noise in the house, which they claim has existed for many years, they have failed to provide any evidence as to whether they have already exercised their contractual warranty rights under the tenancy agreement (Sections 536 et seq. of the German Civil Code (BGB)) and unsuccessfully requested their landlord to remedy the defects pursuant to Section 536c BGB. If their landlord were to fulfill his civil law obligation to remedy the defects, the need to move would be eliminated from the outset.
2.2 – North Rhine-Westphalia State Social Court L 7 B 371/09 AS 10.02.2010 legally binding, decision
According to the case law of the Federal Social Court (BSG) on basic income support law under the German Social Code, Book II (SGB II), the basic income support provider is generally not obligated to cover further medical measures (see BSG of 19.09.2008, B 14/7b AS 10/07 R, SozR 4-4200 § 11 No. 18 and Juris (there Rn. 26)).
1. In the case of an orthodontic malposition, it will be necessary to examine whether an obligation to provide support by the basic income support provider or the social assistance provider (via § 73 SGB XII due to an atypical need situation, see BSG of 07.11.2006, B 14/7b AS 14/06 R, BSGE 97, 242) is exceptionally possible.
Note: See also Bavarian State Social Court L 7 B 668/08 AS PKH 16.10.2008, decision and North Rhine-Westphalia State Social Court, decision of 22.06.2007, L 1 B 7/07 AS ER).
2.3 – North Rhine-Westphalia State Social Court L 7 B 289/09 AS 10.02.2010 legally binding, decision
A sanction is unlawful if the notification of legal consequences fails to inform the recipient of assistance whether they must appear in every case – even if medically certified as unfit for work. The Senate was therefore able to leave open the question of whether the respondent's general notification of legal consequences complies with the legal requirements; according to the case law of the Federal Social Court (BSG), the notification of legal consequences must be specific, understandable, correct, and complete (BSG of 16 December 2008, B 4 AS 60/07 R, BSGE 102, 201; BSG of 17 December 2009, B 4 AS 30/09 R, see also BSG Report No. 70/09 of 17 December 2009).
2.4 – LSG NRW L 20 B 49/08 SO ER, decision of 08.07.2008
If a foreign parent lives in a family unit with a German child, both have a right to approval to rent a suitable private apartment and cannot be referred to communal accommodation.
3. Hessian State Social Court L 7 B 293/06 AS 27.01.2010, Decision
1. To substantiate need for the granting of legal aid, it is sufficient to submit the current notice of approval under the German Social Code, Book II (SGB II), and to provide information only in sections AD of the declaration of personal and economic circumstances, provided there is no indication that income or assets exist which, according to Section 115 Paragraph 1 of the German Code of Civil Procedure (ZPO) in conjunction with the German Social Code, Book XII (SGB XII), could preclude need (following the ruling of the Higher Administrative Court of Saxony-Anhalt, 14 April 2009 – 2 O 26/09).
2. According to Section 23 Paragraph 3 Sentence 1 No. 1, Sentence 2 of the German Social Code, Book II (SGB II), benefits for initial furnishings for an apartment, including household appliances, are not covered by the standard benefit (Sentence 1). They are provided separately (Sentence 2). The benefits according to Sentence 1 No. 1 can be provided as benefits in kind or as cash benefits, including in the form of lump sums (Sentence 5). When calculating the lump sums, suitable information about the necessary expenses and verifiable empirical data must be taken into account (Sentence 6). The requirements of this provision are also met if, due to a move initiated by the basic income support provider, the recipient's furniture becomes unusable and replacement is therefore necessary. However, the situation is to be assessed differently if the move is not caused by compelling circumstances (Federal Social Court [BSG], August 20, 2009 – B 14 AS 45/08 R; BSG, July 1, 2009 – B 4 AS 77/08 R). The decisive factor is therefore whether there is a need for furnishing an apartment that is not already met by existing furniture and other furnishings. Benefits under Section 23 Paragraph 3 Sentence 1 No. 1 of the German Social Code, Book II (SGB II) are to be provided for furnishing with household items that enable orderly household management and living in accordance with prevailing customs (see also Behrend in juris-PK-SGB II, 2nd edition 2007, Section 23, marginal note 80; Hengelhaupt in Hauck/Noftz, SGB II, as of October 2007, Section 23, marginal note 332; see also Federal Social Court (BSG), December 16, 2008 – B 4 AS 49/07 R).
4. State Social Court of Baden-Württemberg L 8 AL 66/08 05.02.2010, Judgment
No repayment of overpaid unemployment benefits is required if the Federal Employment Agency cannot produce the relevant notices, because without approval notices the fault of the unemployed person cannot be proven.
5. Social Court Augsburg S 6 AS 372/09 13.10.2009, Judgment (2nd instance Bavarian State Social Court L 16 AS 757/09).
Receipts in the form of loans constitute income within the meaning of Section 11 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), insofar as they are used to cover living expenses; the obligation to repay does not change this, because it does not reduce the value of the income received during the period of need.
1. According to Section 7 Paragraph 1 Sentence 1 Number 3 in conjunction with Section 9 Paragraph 1 of the German Social Code, Book II (SGB II), only those persons who are in need of assistance receive benefits under the SGB II. They are considered in need if they cannot secure their livelihood and the livelihood of those living with them in a household unit, or cannot do so sufficiently, through their own efforts and resources, especially not 1. by taking up reasonable employment, 2. from their income or assets that must be taken into account, and if they do not receive the necessary assistance from others, particularly from relatives or providers of other social benefits. According to Section 11 Paragraph 1 Sentence 1 of the SGB II, however, income includes receipts in cash or in kind. The legal basis for the receipt of these receipts is irrelevant. The decisive factor is that the applicant receives something of value after submitting the application and can use it to cover their living expenses (see BSG, judgment of 30.07.2008 – B 14 AS 26/07 R and BSG, judgment of 30.09.2008 – B 4 AS 29/07 R, LSG Lower Saxony-Bremen, decision of 03.07.2008 – L 13 AS 97/08 ER, FEVS 60 [2009], p. 87 [90]; Hengelhaupt, in: Hauck/Noftz, SGB II, § 11 Rn. 38 and Hähnlein in: Gagel, SGB III with SGB II, § 11 SGB II Rn. 17). This means that even income in the form of a loan constitutes income within the meaning of Section 11 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), insofar as it could cover living expenses. The obligation to repay the loan does not change this, as it does not reduce the value of the income received during the benefit period (see, in this regard, the decision of the Bavarian State Social Court of March 30, 2009 – L 11 AS 15/09 B ER, the decision of the Lower Saxony-Bremen State Social Court of July 14, 2008 – L 13 AS 97/08 ER, FEVS 60 [2009], page 87 [89 f.], the judgment of the North Rhine-Westphalia State Social Court of December 11, 2008 – L 7 AS 62/08, and the judgment of the Reutlingen Social Court of June 10, 2009 – S 2 AS 1472/08 with further references).
Note: See, regarding basic income support under the German Social Code, Book XII (SGB XII), LSG NSB L 8 SO 57/07, judgment of February 26, 2009
Even though it is sometimes argued in the context of Section 82 of the German Social Code, Book XII (SGB XII), that loan payments should be considered income due to their inflow nature, the jurisprudence of the Federal Social Court (BSG, judgment of June 13, 1986 - 7 RAr 27/84 = BSGE 58, 160) should be followed, according to which a repayable loan does not constitute assessable income, since it does not lead to a net increase in the assets of the person in need due to the repayment obligation.
6. Bremen Social Court S 26 AS 2028/09 ER 20.11.2009 legally binding, decision
The fact that a relationship is described as a community of mutual support and responsibility in the application for benefits by ticking a box, and that the accuracy of this statement is confirmed by signature, is generally also an important indication of the existence of such a community (cf. Higher Administrative Court of Bremen, decision of 30 March 2006 – S2 B 58/06, S2 B 59/06 –; decision of 9 September 2005 – S 2 B 211/05 –).
6.1 – Decision of the Social Court of Bremen of 25 February 2010 – S 23 AS 319/10 ER –
The cap on accommodation costs pursuant to Section 22 Paragraph 1 Sentence 2 of the German Social Code, Book II (SGB II) does not apply to moves from one city or municipality to another.
Section 22, paragraph 1, sentence 2 of the German Social Code, Book II (SGB II) stipulates that in the case of an unnecessary move, reasonable costs will continue to be covered only up to the amount of expenses previously incurred. However, this regulation applies only to moves within the same municipality, not to moves from one municipality or city to another. This follows from a teleological reduction of the provision, because otherwise, those in need of assistance would be permanently restricted in their free choice of residence (for details, see Lang/Link, in: Eicher/Spellbrink, SGB II, 2nd edition, § 22, marginal note 47b with further references; Berlit, in: Münder, SGB II, 3rd edition, § 22, marginal note 51 with further references); a result that cannot be justified under the freedom of movement guaranteed by Article 11 of the Basic Law.
www.socialcourt-bremen.de (pdf)
6.2 – Bremen Social Court S 18 AS 286/10 ER 24.02.2010, Decision
Due to the cooperation obligations also applicable in the SGB II pursuant to § 60 ff. SGB I, it follows that recipients of Hartz IV benefits must present their passport upon request of the authorities.
7. Social Court Berlin S 37 AS 14128/09 11.09.2009, Judgment
The mere fact of prolonged unemployment does not entitle someone to placement in a work opportunity – unless this can improve their chances of finding regular employment. Under no circumstances should work opportunities be used to detect undeclared work or to test willingness to work, let alone as a mere supplementary income measure for the long-term unemployed. Aside from the associated waste of public funds, a work opportunity used for this purpose lacks the suitability for labor market integration. Suitability must refer to the qualification effect of the measure, for which the implementing organization receives funding. Placing someone in a work opportunity for deterrence and disciplinary purposes is an abuse of this support instrument intended for people with particular barriers to employment.
2. Even though the Federal Social Court (BSG) has indicated doubts as to whether a recipient of unemployment benefit II can invoke the lack of examination of the additionality of a work opportunity within the meaning of Section 16 Paragraph 3 Sentence 2 of the German Social Code, Book II (SGB II), the lack of specificity of the measure offer is a reason on which he can invoke if he does not take up the measure, whereby the lack of specificity cannot be remedied or replaced by the job interview (BSG, Judgment of 16.12.2008 - B 4 AS 60/07 R -).
8. Note on: Federal Constitutional Court, First Senate, Judgment of 9 February 2010 – 1 BvL 1/09, Federal Constitutional Court, First Senate, Judgment of 9 February 2010 – 1 BvL 3/09, Federal Constitutional Court, First Senate, Judgment of 9 February 2010 – 1 BvL 4/09
Author: Dr. Steffen Luik, Judge at the Federal Social Court (BSG), currently a research associate at the BSG.
Publication date: February 25, 2010
Source:
Legal provisions: Section 28 SGB II, Section 68 SGB VI, Section 2 RSV, Section 74 SGB II, Section 24a SGB II.
Reference: jurisPR-SozR 4/2010 Note 1.
Editors: Dr. Thomas Voelzke, Presiding Judge of the Federal Social Court (BSG)
; Prof. Dr. Rainer Schlegel, Presiding Judge of the Federal Social Court (BSG).
Standard benefits under SGB II ("Hartz IV law") are unconstitutional
Juris guidelines
1. The fundamental right to a dignified minimum standard of living, enshrined in Article 1 Paragraph 1 of the Basic Law (GG) in conjunction with the social welfare principle of Article 20 Paragraph 1 GG, guarantees every person in need the material resources essential for their physical existence and for a minimum level of participation in social, cultural, and political life.
2. This fundamental right under Article 1 Paragraph 1 GG, as a guarantee right in conjunction with Article 20 Paragraph 1 GG, has independent significance alongside the absolute right under Article 1 Paragraph 1 GG to respect for the dignity of every individual. It is, in principle, inalienable and must be fulfilled, but requires concretization and continuous updating by the legislature, which must align the benefits to be provided with the respective stage of development of the community and the existing living conditions. The legislature has a degree of discretion in this regard.
3. To determine the scope of the claim, the legislator must assess all essential living expenses realistically and comprehensibly in a transparent and appropriate procedure based on reliable figures and sound calculation methods.
4. The legislator may cover the typical needs to secure a dignified minimum standard of living with a fixed monthly amount, but must grant an additional benefit entitlement for any unavoidable, ongoing, and not merely one-off, special needs beyond this.
Quote: “4. Hardship clause for atypical special needs (para. 204 ff.)
Since a standard benefit rate, by its very nature, only covers average needs, the statistics do not provide meaningful data on needs arising in special cases. If, in rare individual cases, it is necessary to ensure a dignified minimum standard of living, this unavoidable, ongoing, and not merely one-off, special need must also be met. However, this entitlement only arises when the need is so substantial that the total amount of benefits granted to the recipient – including benefits from third parties and taking into account the recipient's potential savings – no longer guarantees a dignified minimum standard of living. The entirety of the regulations of the German Social Code, Book II (SGB II), generally also permits the coverage of individual special needs (para. 206). The Federal Constitutional Court speaks of narrow and strict eligibility requirements, which is why this entitlement is only considered in rare cases. The extreme case described above justifies, according to the Federal Constitutional Court, the assumption of a direct legal basis for this social benefit under Article 1 Paragraph 1 in conjunction with Article 20 Paragraph 1 of the Basic Law.
Such "special needs" do not refer to one-off or short-term spikes in expenses that can be covered by a loan under Section 23 Paragraph 1 of the German Social Code, Book II (SGB II) (paragraph 207). Examples include eyeglasses, orthopedic shoes, dentures, and washing machines. In this regard, the person receiving assistance must first structure their spending habits in such a way that they can draw on the savings potential included in their standard benefit (paragraph 205). The additional needs allowances under Section 21 of the SGB II cannot be supplemented by atypical special needs.
In other contexts, the Federal Social Court (BSG) has stated the following regarding hardship clauses: The term "special hardship" is an indeterminate legal term, the interpretation of which is subject to full judicial review (BSG, Judgment of September 6, 2007 – B 14/7b AS 36/06 R – BSGE 99, 67, 73 = SozR 4-4200 § 7 No. 6). The administration has no discretionary power; it also has no prerogative of assessment (cf. also BSG, Judgment of October 30, 2001 – B 3 P 2/01 R – SozR 3-3300 § 36 No. 3). The interpretation of indeterminate legal terms is, in fact, a genuine task of the judiciary (Federal Social Court, Judgment of October 17, 2002 – B 7 AL 96/00 R – BSGE 90, 90, 97). The concretization follows the interpretation of abstract-general provisions required within the framework of the application of legal norms. Accordingly, the usual principles of norm interpretation apply. Of particular importance in this respect is the specific context of the area of law in question and the function of the regulation within the respective normative and statutory context (Federal Social Court, Judgment of July 18, 1996 – 4 RA 46/94, para. 15 et seq. – SozR 3-5060 Art. 6 § 4 No. 1). The fundamental rights and the value system expressed therein must be observed (cf., for example, regarding the exercise of visitation rights by the non-custodial parent, Federal Constitutional Court, Decision of October 25, 1994 – 1 BvR 1197/93 – NJW 1995, 1342 et seq.; cf. also Federal Social Court, Judgment of June 23, 1982 – 7 RAr 106/81 – BSGE 54, 14 para. 32 = SozR 4100 § 19 No. 16). The indeterminate legal concept of exceptional hardship always refers to the circumstances of the individual case (Federal Social Court, Judgment of February 8, 2007 – B 7a AL 34/06 R – SozR 4-5765 § 9 No. 1). The generally applicable conditions for employable individuals receiving assistance do not, therefore, constitute a case of hardship. Similarly, the co-payments for health insurance benefits that every insured person must make are not considered an atypical need (Federal Social Court, Judgment of April 22, 2008 – B 1 KR 10/07 R – SozR 4-2500 § 62 No. 6). Regarding increased expenses for the purchase of non-prescription medications for chronically ill individuals, this can only be considered in certain exceptional cases and must be justified on a case-by-case basis specific to the illness (cf. Higher Social Court of North Rhine-Westphalia, Decision of June 22, 2007 – L 1 B 7/07 AS ER, para. 28 et seq., on the one hand, and Higher Social Court of Baden-Württemberg, Decision of November 22, 2007 – L 7 SO 4180/06, para. 23, on the other). In the case of student transportation costs, the Federal Social Court (BSG) has denied the existence of an atypical need (BSG, Judgment of October 28, 2009 – B 14 AS 44/08 R). The costs regularly incurred by a divorced or separated parent due to exercising their right of access to their children can constitute an atypical need – insofar as they are not covered by any existing income, standard benefits, or benefits from third parties. However, there is no unlimited socialization of the costs resulting from divorce (BSG, Judgment of November 7, 2006 – B 7b AS 14/06 R – BSGE 97, 242 ff.; cf., e.g., Lauterbach, NJ 2006, 199, 200 f.; Gerenkamp/Kroker, NZS 2008, 28 ff.). All circumstances determining the parent-child relationship (such as mutually agreed arrangements, age and number of children) must be considered in order to establish the necessary extent of contact (cf. Federal Constitutional Court, Decision of October 25, 1994 – 1 BvR 1197/93 – NJW 1995, 1342 et seq.). The costs of domestic help must also be taken into account if there is a special disability-related need, as well as certain necessary household tasks/activities that cannot be performed without assistance and if no other support, e.g., from relatives, is available (cf. Knickrehm, NZS 2007, 128 et seq.; Schütze, SozSich 2007, 133, 115; Mrozynski, SGb 2009, 450, 455).
