If the policyholder has designated a beneficiary upon death, the beneficiary acquires a direct claim against the insurance company for payment of the insurance sum upon the policyholder's death. This claim does not form part of the estate. If the beneficiary is in need of assistance under the German Social Code, Book II (SGB II), the insurance sum is considered income in the month it is received.
The expenses for household energy, which are included as a lump sum in the sublease rent without separate itemization, are considered part of the accommodation costs and are covered according to Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), up to the amount of the actual expenses, provided they are reasonable. These expenses are not to be covered by the standard benefit according to Section 20 Paragraph 1 of the SGB II.
1. The expenses for household energy included as a lump sum in the sublease rent without separate itemization, as stipulated in the sublease agreement, are considered part of the accommodation costs, which are covered according to Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), in the amount of the actual expenses, provided they are reasonable. These expenses are not to be covered by the standard benefit according to Section 20 Paragraph 1 of the SGB II. This corresponds to the jurisprudence of the Federal Social Court, according to which the decisive factor is whether the apartment could only be rented with the agreement to include additional expenses and whether the rent, even taking the corresponding surcharge into account, remains within the bounds of what is reasonable for the relevant place of residence (most recently judgment of May 7, 2009 – B 14 AS 14/08 R, para. 20 et seq.; concurring opinion: Berlit, LPK-SGB II, 3rd ed. 2009, § 22 para. 23): "According to the wording of § 22 para. 1 sentence 1 SGB II, the decisive factor is the actual expenses for accommodation up to the limit of what is reasonable. Within this framework, there is therefore, in principle, an entitlement to the reimbursement of the full actual costs. These include all payment obligations arising from the rental agreement for the accommodation (cf. regarding move-in renovations, Federal Social Court, judgment of December 16, 2008 – B 4 AS 49/07 R; Judgment of February 19, 2009 – B 4 AS 48/08 R concerning broadband cable connection). This also includes the usage fee for the kitchen equipment, because, according to the unchallenged findings of the Higher Social Court, the plaintiff's apartment was rented only with the kitchen equipment. () However, if expenses are legally and factually linked to the accommodation in this way, they must also be provided as benefits under Section 22 of the German Social Code, Book II (see, regarding cable connection, Federal Social Court, Judgment of February 19, 2009 – B 4 AS 48/08 R; regarding garage, Federal Social Court, Judgment of November 7, 2008 – B 7b AS 10/06 R, BSGE 97, 231 = SozR 4-4200 § 22 No. 2, each at paragraph 28).
2. These conditions are met here because the household energy costs were legally based on the tenancy agreement, no other agreement with the main tenant existed, and finally, the costs as a whole are to be considered reasonable. bb. The fact that the benefits for accommodation and heating can also include needs that were factored into the calculation of the standard benefit and are generally to be covered by it does not lead to a different assessment. In this respect as well, what has been said about the lump-sum nature of the standard benefit applies, and it has been expressly clarified in the case law of the Federal Social Court, also with regard to the costs of accommodation and heating, that it would contradict the purpose of the lump-sum standard benefit to break it down into its individual components and examine their specific use. It is precisely the nature of a lump-sum standard benefit that it is made available to the recipient in its entirety for the independent management of their life. A division of the standard benefit into individual needs would contradict this concept of the legislator. If the legislator, without determining individual needs, provides a lump sum to guarantee the minimum subsistence level, a contradiction in values would arise if, in individual cases, a need were to be fully or partially deducted from the standard benefit, but also if it were deducted from the costs of accommodation and heating (BSG, Judgment of 7 May 2009, loc. cit., referring to Judgment of 18 June 2008, loc. cit.; LSG North Rhine-Westphalia, Judgment of 13 December 2007 – L 7 AS 19/07; SG Karlsruhe, Decision of 26 March 2009 – S 8 AS 1073/09 ER, concurring Berlit, loc. cit.).
3. State Social Court of North Rhine-Westphalia L 7 AS 81/09, Judgment of 27 January 2010 (Appeal allowed)
Surcharges for night, Sunday and public holiday work are not to be deducted from social benefits under the German Social Code, Book II (SGB II), as they are earmarked income (see, in this regard, the judgments of the Higher Social Court of Saxony of 29 October 2009, case no. L 2 AS 100/08, the Higher Social Court of Saxony of 29 October 2009, case no. L 2 AS 101/08 and the Higher Social Court of Saxony of 29 October 2009, case no. L 2 AS 99/08).
According to Section 11 Paragraph 1 of the German Social Code, Book II (SGB II), receipts in cash or in kind are generally to be considered income. According to Section 11 Paragraph 3 Number 1a of the SGB II, receipts are not to be considered income insofar as they are earmarked for a purpose other than the benefits under the SGB II and do not improve the recipient's situation to such an extent that additional benefits under this book would no longer be justified.
Taking these principles into account, the tax-free night shift allowances granted to the plaintiff constitute earmarked income within the meaning of Section 11 Paragraph 3 No. 1a of the German Social Code, Book II (SGB II) (see Hengelhaupt in Hauck/Noftz, Commentary on the SGB II, Section 11, marginal note 231; Brühl in LPK-SGB II, 3rd edition 2009, Section 11, marginal note 68; with reservations, Mecke in Eicher/Spellbrink, Commentary on the SGB II, 2nd edition 2008, Section 11, marginal note 39). They are not included in the net income to be considered. Even though the night shift allowance is intended to increase the cost of the employee's work and thus make night work less attractive for the employer, with the aim of curbing this form of work, the Senate is convinced that the night shift allowance also covers a special expense (additional meal expenses). Night work places greater physical demands on a person than work performed during the day and therefore requires additional meals and thus special expenses (cf. BSGE 17, 242, 244 regarding Section 33 of the Federal War Victims' Relief Act – BVG). This general experience is essentially confirmed by the plaintiff's circumstances. He explained his night work hours from 3:10 a.m. to a maximum of 4:30 a.m., demonstrating that he has to get up at 2:30 a.m. and does not return home until around 5:00 a.m., without being able to fall back asleep. It is obvious that this deviation from the normal daily rhythm, as described by the plaintiff in relation to his situation, is associated with altered or increased meal requirements.
The Federal Social Court also assumed in its case law on Section 138 Paragraph 3 No. 3 of the Employment Promotion Act (AFG) that supplements for night work were earmarked for a specific purpose (BSG, Judgment of 21.03.1990 – 7 RAr 86/87 –, SozR 3-4100 § 138 No. 2)
The Senate's assessment is not contradicted by the fact that meal allowances are generally included in and covered by the standard benefit. As can be seen in particular from the provisions of Section 21 of the German Social Code, Book II (SGB II) (Benefits for Additional Needs in Living Expenses), this rule applies only to basic needs; it does not apply to employment-related additional needs or employment-related additional expenses for special meals at certain times (see Saxon State Social Court, judgments of October 29, 2009, – L 2 AS 99/08 –, – L 2 AS 100/08 –, – L 2 AS 101/08 –). In the Senate's view, the supplements specifically compensate for special needs that exceed what is intended to be covered by the benefits under the SGB II. If these supplements were offset against the standard benefit, the intended compensation would be lost. The night shift allowances, which are privileged under tax law according to Section 3b Paragraph 1 of the Income Tax Act (EStG), thus serve a different purpose than the standard benefits under the German Social Code, Book II (SGB II) (see also Saxon State Social Court, loc. cit.; Thuringian State Social Court, decision of March 8, 2005 – L 7 AS 112/05 ER –; Chemnitz Social Court, judgment of June 20, 2008 – S 22 AS 4269/07 –).
3.1 – North Rhine-Westphalia State Social Court L 7 B 464/09 AS, decision of 03.03.2010
According to the case law of the Federal Social Court (BSG), 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 BSG's report on the hearing of 17.12.2009, No. 70/09).
The plaintiff was informed of the legal consequences of a sanction in the integration agreement of July 14, 2008. According to the case law of the Federal Social Court (BSG), the instruction regarding legal consequences must be specific, comprehensible, correct, and complete (BSG of December 16, 2008, B 4 AS 60/07 R, BSGE 102, 201; BSG of December 17, 2009, B 4 AS 30/09 R, see also BSG hearing report no. 70/09 of December 17, 2009). Furthermore, in its judgment of February 18, 2010, the BSG ruled that the individual concerned must be specifically informed about the legal consequences of a breach of duty (B 14 AS 53/08 R, reproduced from BSG hearing report no. 7/10 of February 19, 2010). A mere reproduction of the legal text without clearly specifying the potential legal consequences is therefore insufficient (ibid.). The information on legal consequences in the integration agreement of July 14, 2008, is likely not sufficiently specific in this sense because it lists all possible sanctions and their potential legal consequences.
Insofar as the Social Court refers to a job offer from the defendant to the plaintiff dated July 14, 2008, such an offer is not found in either the court file or the administrative file. The Social Court will therefore have to clarify whether the plaintiff received or was notified of such a job offer, and whether it contained a separate statement of legal consequences that meets the requirements set forth by the Federal Social Court.
3.2 – North Rhine-Westphalia State Social Court L 19 B 303/09 AS, decision of 10 March 2010
Proceeds from the sale of business assets are considered business income within the meaning of Section 3 of the ALG II Ordinance (see Geiger, The crediting of income of self-employed persons according to Section 3 of the new ALG II Ordinance, ZFSH/SGB 2009, 9).
1. Tax advisor fees (see Geiger, aaO (212)) and rent for commercial premises (see Geiger, aaO (212)) are eligible operating expenses under Section 3 Paragraph 2 of the ALG II-V.
2. According to Section 3 Paragraph 4 of the ALG II-V (Regulation on Unemployment Benefit II), for each month the portion of the income to be taken into account is that which results from dividing the total income in the benefit period, which is defined in Section 3 Paragraph 1 Sentence 2 of the ALG II-V as a period according to Section 41 Paragraph 1 Sentence 4 of the SGB II (Social Code, Book II), i.e., of six months, by the number of months in the benefit period.
3.3 – LSG North Rhine-Westphalia, decision of 26.02.2010, file no. L 6 B 154/09 AS ER
Urgent legal protection should be granted due to the exclusion of benefits under the German Social Code, Book II (SGB II) for EU citizens entering Germany for the purpose of job seeking, because it raises concerns that the legislator has excluded EU citizens entitled to freedom of movement from benefits under the SGB II if they have entered the Federal Republic solely for the purpose of job seeking.
However, the question of whether the exclusion of benefits under Section 7 Paragraph 1 Sentence 2 No. 1 of the German Social Code, Book II (exclusion of benefits in the first three months of residence) or under Section 7 Paragraph 1 Sentence 2 No. 2 of the German Social Code, Book II (exclusion of benefits if the right of residence arises solely from the purpose of job seeking) applies to the detriment of the applicant cannot be definitively clarified in the preliminary legal protection proceedings. Based on the Senate's considerations to date, there are considerable doubts as to whether the exclusion of benefits in this provision is compatible with European Union law (see also Higher Social Court of North Rhine-Westphalia, decision of February 17, 2010, L 19 B 392/09 AS ER; Higher Social Court of Berlin-Brandenburg, decision of January 11, 2010, L 25 AS 1831/09 B ER; Higher Social Court of Bavaria, decision of May 4, 2009, L 16 AS 130/09 B ER; in the literature: Valgolio in Hauck/Noftz § 7 para. 30; Spellbrink in Eicher/Spellbrink, ibid., § 7 para. 17 with further references; Löns in Löns/Herold-Tews, SGB II, 2nd ed. 2009, § 7 para. 13 with further references; Brühl/Schoch in LPK-SGB II, 3rd ed. 2009, § 7 para. 36 with further references; Schreiber, info also 2008, 3 ff, info also 2009, 195 ff.; Husmann, NZW 2009, 652, 656; contra: LSG Berlin-Brandenburg, decision of 23 December 2009, L 34 AS 1350/09 B ER and decision of 8 June 2009, L 34 AS 790/09 B ER; LSG Lower Saxony-Bremen, decision of 29 September 2009, L 15 AS 905/09 B ER; denying incompatibility with EU law for economically inactive EU citizens: Hessian LSG, decision of 14 October 2009, L 7 AS 166/09 B ER).
Insofar as the German federal legislature, with the provision of Section 7 Paragraph 1 Sentence 2 of the German Social Code, Book II (SGB II), intended to implement Article 24 Paragraph 2 in conjunction with Article 14 Paragraph 4b of Directive 2004/38/EC into national law (see BT-Drs. 16/688, p. 13; BT-Drs. 16/5065, p. 234), it is questionable whether this directive is not already excluded as a legal basis for the exclusion of benefits because the provision only allows the exclusion of "social assistance claims". Whether basic income support under the German Social Code, Book II (SGB II) constitutes "social assistance" is problematic (affirmative: Higher Social Court Berlin-Brandenburg, decision of December 23, 2009, L 34 AS 1350/09 B ER; Higher Social Court Berlin-Brandenburg, decision of; Higher Social Court Lower Saxony-Bremen, decision of September 29, 2009, L 15 AS 905/09 B ER; Higher Social Court North Rhine-Westphalia, decision of September 17, 2009, L 9 AS 4/07; Hailbronner, ZFSH/SGB 2009, 195, 201; Heinig, ZESAR 2008, 465, 472; Strick, NJW 2005, 2182; presumably also Schreiber, info also 2009, 195, 197; negative: Social Court Berlin, judgment of February 29, 2008, S 37 AS 1403/08; left open by the Higher Social Court of North Rhine-Westphalia, decision of February 17, 2010, L 19 B 392/09 AS ER). The European Court of Justice left this question open in its judgment of June 4, 2009, Vatsouras, C-22/08, but stated that "financial benefits which, irrespective of their classification under national law, are intended to facilitate access to the labour market cannot be regarded as 'social assistance benefits' within the meaning of Article 24(2) of the Citizens' Rights Directive." Furthermore, "a requirement such as that contained in Section 7(1) of the German Social Code, Book II (SGB II), according to which the person concerned must be capable of working, could be an indication that the benefit is intended to facilitate access to employment." In view of the ECJ's further statements that the national court must examine the fundamental characteristics of the benefit, in particular its purpose and the conditions for its granting, it must be determined whether the benefits in question here under the German Social Code, Book II (SGB II), are intended to facilitate access to the labor market within the meaning of European case law.
Even if the basic income support benefits under Book II of the German Social Code (SGB II) were included in the scope of the Citizens' Rights Directive, the applicant's entitlement to the requested benefits may still potentially arise directly from primary EU law (see, in principle, Schreiber, info also 2008, 3 ff. with further references; according to Husmann, NZW 2009, 652 ff., the directive is void due to lack of a legal basis; Heinig, ZESAR 2008, 465, 472 with critical remarks on the case law of the ECJ; contrary view: Higher Social Court of Berlin-Brandenburg, decision of 23 December 2009, L 34 AS 1350/09 B ER; decision of 8 June 2009, L 34 AS 790/09 B ER). According to the case law of the ECJ, job seekers, even if they are not workers within the meaning of Article 39 EC (since 1 December 2009 replaced by Article 45 of the Treaty on the Functioning of the European Union, hereinafter: TFEU, by the Treaty of Lisbon), nevertheless fall within the scope of Article 39(2) EC with regard to access to employment (ECJ, Judgment of 4 June 2009, Vatsouras C-22/08; Judgment of 23 March 2004, Collins C-138/02; Judgment of 7 September 2004, Trojani C-456/02). In addition, the principle of equal treatment under Article 12 EC (corresponding to Article 18 TFEU) applies to Union citizens, with the consequence that Union citizens cannot be excluded from a financial benefit intended to facilitate access to the labour market of a Member State (ECJ, Judgment of 23 March 2004, Collins, C-138/02). While the ECJ has considered it legitimate for state aid to be subject to certain criteria (such as the requirement of an actual link to the labor market, ECJ, ibid., or a requirement of residence, ECJ, Judgment of 15 March 2005, Bidar, C-209/03), it has consistently held that these criteria must be based on objective considerations independent of the nationality of the recipients and must be proportionate to the objective legitimately pursued by national legislation (ECJ, Judgment of 23 March 2004, Collins, C-138/02). In light of this case law, it is highly doubtful whether a provision such as Section 7(1), sentence 2, of the German Social Code, Book II (SGB II), which is based solely on nationality, complies with the requirements of primary EU law.
If the provision of Section 7 Paragraph 1 Sentence 2 of the German Social Code, Book II (SGB II) is deemed to be contrary to European law, it must be further examined whether the provision is generally to be considered ineffective for EU citizens or whether and, if so, in what way the provision can be reduced to comply with European law (cf. Schreiber, info also 2008, 3 ff: only non-EU foreigners and EU citizens subject to enforceable deportation orders are covered; Spellbrink in Eicher/Spellbrink, ibid.: the decision on a general ineffectiveness should be reserved to the ECJ pursuant to Article 234 EC).
Whether entitlement to benefits can be derived from the European Convention on Social and Cultural Rights of 11 December 1953, ratified by the Federal Republic of Germany and Italy (affirmative in this regard: LSG NRW, decision of 6 May 2009, L 20 B 15/09 AS ER; Brühl/Schoch in LPK-SGB II, loc. cit., § 7 para. 35; negative in this regard: LSG Bayern, decision of 4 May 2009, L 16 AS 130/09 B ER; regarding social assistance: OVG Berlin, decision of 22 April 2003, 6 S 9.03) also requires detailed examination.
4. LSG Baden-Württemberg Judgment of 25 February 2010, L 7 SO 5106/07
1. German citizens habitually resident abroad are generally excluded from receiving social assistance. Section 24, paragraph 1, sentence 1 of the German Social Code, Book XII (SGB XII) stipulates, in principle, that Germans who are habitually resident abroad do not receive social assistance benefits; rather, those seeking assistance are regularly required to return to Germany (see Senate decisions of December 21, 2005 – L 7 SO 4166/05 ER-B – FEVS 57, 403, Bundestag printed matter 15/1761, p. 6).<zu § 24 Abs. 1> ).
3. The provision of Section 24 Paragraph 1 of the German Social Code, Book XII (SGB XII) is constitutional.
4.1 – LSG Baden-Württemberg Judgment of 18.12.2009, L 12 AS 1702/09 (Appeal allowed)
The general exclusion of benefits for subsistence under the German Social Code, Book II (SGB II) for graduates of training programs eligible for funding under the German Social Code, Book III (SGB III) or the Federal Training Assistance Act (BAföG) applies only to needs exclusively related to the training. Benefits for initial furnishings are included in this exclusion, as the corresponding need is training-related.
1. For decades, the Federal Administrative Court (BVerwG) has established in its case law that the entitlement to subsistence assistance for trainees whose training is eligible for funding is excluded only for needs that are exclusively training-related (see BVerwGE 61, 352; 71, 12). Given the identical wording of the regulations and the established case law of the Federal Administrative Court regarding the differentiation between training-related and other needs, the legislature evidently accepted the limitation of this exclusion of benefits (see BSG SozR 4-4200 § 7 No. 6). Circumstances that are independent of the training situation and traditionally have nothing to do with training are not considered training-related. These include special circumstances relating to the person seeking assistance, such as disabilities, illnesses, pregnancy, child-rearing, and childcare (see BVerwGE 71, 12). In such situations of need that are not related to vocational training, the basic income support provider must step in, even if the benefits, according to their classification under the German Social Code, Book II (SGB II), are assistance for subsistence, such as the benefits under Section 21, paragraphs 2, 3 and 5 of the SGB II (see BSG SozR 4-4200 § 7 No. 6; Spellbrink in Eicher/Spellbrink, SGB II, 2nd edition, § 7 marginal note 91 et seq.; Brühl/Schoch, LPK-SGB II, 2nd edition, § 7 marginal note 99).
2. Household items, on the other hand, have already been considered part of the training-related needs according to the Federal Administrative Court's (BVerwG) jurisprudence, resulting in an exclusion from benefits under Section 26 Sentence 1 of the Federal Social Assistance Act (BSHG) (see BVerwG, Decision of May 13, 1993 – 5 B 47/93 –). In the Senate's opinion, this also applies to initial furnishings under Section 23 Paragraph 3 No. 1 of the German Social Code, Book II (SGB II). While the SGB II differentiates between initial furnishings for the apartment, including household appliances, which are to be provided additionally under Section 23 Paragraph 3 SGB II, and replacements for corresponding furniture or household goods, which are included in the standard benefit under Section 20 Paragraph 1 SGB II due to the more lump-sum nature of the benefits, whereas under the BSHG, corresponding benefits were granted entirely as one-off grants, this differentiation does not alter the fundamental classification as a training-related need. The need for initial furnishings for an apartment is not due to special circumstances independent of education in the sense described above (see also State Social Court).<LSG> Berlin-Brandenburg, decision of July 16, 2009 – L 25 AS 1031/09 B ER – ; contra Peters in Estelmann, SGB II, § 7 para. 97). Rather, it is a typical life situation that corresponding needs for initial furnishings arise in connection with education, for example, when leaving the parental home to begin university studies. The exclusion of benefits under § 7 para. 5 sentence 1 SGB II therefore also applies to benefits under § 23 para. 3 no. 1 SGB II.
4.2 – LSG Baden-Württemberg Judgment of 20.11.2009, L 12 AS 4180/08
Costs for school meals can be provided as a discretionary benefit under Section 53 Paragraph 1 Sentence 2 of the German Social Code, Book XII (SGB XII), in the form of assistance for appropriate schooling. Since school meals serve not only integration assistance but also nutrition, it is justified to deduct the portion allocated for this purpose in the social assistance payment when calculating the amount of the benefit.
4.3 – LSG Baden-Württemberg Judgment of 10 July 2009, L 12 AS 5274/08
The granting of additional needs allowances due to single parenthood is not possible – even partially – if the employable person in need of assistance looks after the children on three days a week.
1. According to the Federal Social Court's (BSG) jurisprudence, such special circumstances justifying the granting of the additional needs allowance regulated in Section 21 Paragraph 3 of the German Social Code, Book II (SGB II), generally exist when divorced and separated parents alternate in the care and upbringing of their shared child in longer intervals of at least one week and share the resulting costs approximately equally, but not when care takes place in intervals shorter than one week (see BSG, Judgment of March 3, 2009 – B 4 AS 50/07 R –). The BSG justifies this with reference to the purpose of the additional needs allowance, which can be derived from its legislative history. With regard to the legislator's intended substantive link to the corresponding provision in the Federal Social Assistance Act (<BSHG> (cf. BT-Drucks. 15/1516 p. 57) the legislative history of the 4th Amendment to the Federal Social Assistance Act (BSHG) can be consulted (cf. BT-Drucks. 10/3079 p. 5). According to the legislative materials, the justification for the corresponding additional needs allowance under the BSHG arose primarily from the fact that single parents, due to childcare responsibilities, have less time to shop with an eye on prices and simultaneously incur higher expenses for maintaining contact with their children and for obtaining information on parenting matters. The purpose of the additional needs allowance regulated in Section 21 Paragraph 3 of the German Social Code, Book II (SGB II), is therefore also to compensate, in a lump sum, for the higher expenses of the single parent for the care and upbringing of their children, for example, due to reduced mobility and additional expenses for maintaining contact with their children or using third-party services (Federal Social Court, Judgment of March 3, 2009, loc. cit.).
2. In such cases, the increased expenses, for example for more expensive purchases or childcare costs to maintain social contacts, can be compensated to the necessary extent outside of childcare hours. Therefore, the plaintiff is not entitled to any additional allowance for single parents, even a partial one.
4.4 – LSG Baden-Württemberg Judgment of 10 July 2009, L 12 AS 3241/08
If it is established that no special diet beyond a regular diet is required, the recommendations of the German Association for the Granting of Dietary Allowances in Social Assistance (3rd edition, 2008) can be used to determine the costs associated with a regular diet. Individual assessments of the costs associated with a regular diet are not necessary.
1. If a full diet is deemed medically necessary, this does not incur any additional costs that would need to be covered by a supplementary allowance. According to the legislator's intent, the recommendations developed by the German Association of Statutory Health Insurance Physicians (DV) and based on typical case scenarios can be used to specify the appropriateness of the supplementary allowance (Bundestag printed matter 15/1516, p. 57). Whether the current recommendations of the German Association for Nutrition (DV) (3rd completely revised edition 2008) have the legal status of an anticipated expert opinion (as held by the Hessian State Social Court, decision of December 22, 2008 – L 7 SO 7/08 B ER –; the Lower Saxony-Bremen State Social Court, decision of February 3, 2009 – L 9 B 339/08 AS and judgment of January 22, 2009 – L 8 SO 32/07 –; and the Mecklenburg-Western Pomerania State Social Court, judgment of March 9, 2009 – L 8 AS 68/08 –) is not relevant to the decision in this case. In any event, the DV recommendations cannot be used to determine which form of nutrition is necessary for the plaintiff's existing conditions of achalasia and dysphagia, as these conditions are not listed therein. Based on the evidence presented, the Senate is convinced – as already stated – that the plaintiff did not require any special diet beyond a regular diet, particularly not liquid nutrition. However, the recommendations can be consulted regarding the costs associated with a regular diet. A scientific study by the German Nutrition Society (DGE) on the topic of "Food Costs for a Balanced Diet" (April 2008), which was incorporated into the DV's recommendations, concluded that the amount included in the calculation of the standard allowance for food covers the costs of a regular diet (www.dge.de/pdf/ws/Lebensmittelkosten-vollwertige Ernaehrung.pdf). A balanced diet is currently defined as a diet that 1. covers the need for essential nutrients, 2. takes energy requirements into account in its energy content, 3. considers findings of nutritional medicine for prevention and (newly!) also for therapy, 4. is adapted in its composition to usual eating habits, insofar as points 1 to 3 are not affected (Recommendations of the German Nutrition Society, 3rd edition, p. 16).
It must therefore now be considered scientifically established that a balanced diet is no more expensive than "normal unhealthy" food, or at least can be financed from the portion of the standard allowance allocated for food (see Lower Saxony-Bremen State Social Court, judgment of January 22, 2009; Mecklenburg-Western Pomerania State Social Court, judgment of March 9, 2009, both loc. cit.). Case-specific investigations into the costs of a balanced diet are therefore not necessary in this case.
Section 22 of the German Social Code, Book II (SGB II) refers to benefits for accommodation and heating and, by its very wording, does not suggest any restriction to specific heating systems. Electricity costs for the electric use of a radiant heater are heating costs.
5.1 – Saxon State Social Court L 3 AS 570/09 B PKH, decision of 15.02.2010
Recipients of unemployment benefit II are obliged to submit a declaration about their personal and economic circumstances when applying for legal aid (see SächsLSG, decision of November 20, 2009 – L 3 B 261/08 AS-PKH – para. 19, with further references).
The declaration regarding personal and financial circumstances could not be waived simply because, as the applicant argues, the Social Court could have recognized his neediness from the fact that he had been granted basic income support under Book II of the German Social Code (SGB II). In this context, the Federal Social Court has repeatedly emphasized that the use of the form is intended to enable the court to obtain sufficient certainty about the applicant's personal and financial circumstances (family situation, occupation, assets, income and expenses, existence or non-existence of legal expenses insurance) based on the information provided and the supporting documents submitted. This requires declarations as requested in the form, including an affirmation of the completeness and accuracy of the information provided (see Federal Social Court, decision of May 21, 2007 – B 2 U 131/07 B – para. 3, with further references). The Federal Social Court has therefore ruled that neither the submission of a copy of an asset inventory drawn up in insolvency proceedings and other supporting documents (see Federal Social Court, loc. cit.) nor the submission of a notice of approval for benefits to secure subsistence under Book II of the German Social Code (see Federal Social Court, decision of August 17, 2007 – B 1 KR 6/07 BH – para. 3, with further references) is sufficient. Furthermore, an entitlement to unemployment benefit II does not necessarily entitle one to legal aid. For example, the provisions in Section 73a para. 1 sentence 1 of the Social Courts Act (SGG) in conjunction with Section 115 para. 3 of the Code of Civil Procedure (ZPO) in conjunction with Section 90 of Book XII of the German Social Code – Social Assistance – (SGB XII) on the one hand, and in Section 12 of Book II of the German Social Code (SGB II) on the other hand, regarding the assets to be used, are not identical.
6. Higher Administrative Court of the Free Hanseatic City of Bremen, Case No.: 1 B 60/10, Decision of 10 March 2010
Participation in a class trip to Türkiye for students with tolerated stay
The Higher Administrative Court of Bremen has ordered the Bremen immigration authority, by way of an interim injunction, to enable two students to participate in a class trip to Turkey by issuing them an emergency travel document.
1. If an apartment has fallen into an absolutely neglected state due to the health and psychological problems of the person in need of assistance, the basic income support provider may, under certain circumstances, be obliged to cover the costs of a basic renovation and cleaning as a loan in accordance with Section 23 Paragraph 1 of the German Social Code, Book II (SGB II).
2. In such a case, initial equipment may also be granted in accordance with Section 23 Paragraph 3 Sentence 1 No. 1 SGB II.
Cleaning and renovating an apartment are needs covered by the standard benefit. This is because the standard benefit includes, among other things, expenses for household goods and daily living expenses (see in detail: Lang et al., in: Eicher/Spellbrink, SGB II, 2nd ed. 2008, § 23 para. 17 with further references). Furthermore, this is an unavoidable need. Unavoidability exists when there is a significant impairment of the applicant's needs (Lang et al., ibid., para. 29). This is the case here because the applicant's apartment is neglected.
The applicant is also entitled – after the apartment has been thoroughly cleaned and renovated – to initial furnishings pursuant to Section 23 Paragraph 3 Sentence 1 No. 1 of the German Social Code, Book II (SGB II). Contrary to the respondent's opinion, a case for initial furnishings exists as soon as the thorough renovation and cleaning have been completed. There are two categories of initial furnishings: Firstly, initial furnishings are assumed when a need arises for the first time; secondly, a need for initial furnishings may also exist due to special circumstances (Loose, in: Hohm, GK-SGB II, marginal note 36 to Section 23, as of July 2007, with further references; see also Federal Social Court (BSG), judgment of September 19, 2008 – B 14 AS 64/07 R –; for the distinction: judgment of the Lower Saxony-Bremen State Social Court of September 4, 2008, L 13 AS 518/06).
The replacement furniture and household items sought are not to be considered initial furnishings in the sense of a newly arising need. While some legal opinions (e.g., LSG Rheinland-Pfalz, decision of July 12, 2005 – L 3 ER 45/05 AS –, FEVS 57, 181-184, cited according to juris, para. 14) and legal literature (Lang/Blüggel, in: Eicher/Spellbrink, SGB II, 2nd ed. 2008, para. 97 on § 23) interpret the term "initial furnishings" not in terms of time but in terms of need, which interpretation is correct can remain open for the purposes of this case. In any event, the wording of the law prohibits considering any replacement purchase as "initial furnishings." Otherwise, the term "initial furnishings" would be equated with "new furnishings" or "replacement" and thus rendered meaningless.
However, this is a case falling under the second category of Section 23 Paragraph 3 Sentence 1 Number 1 of the German Social Code, Book II (SGB II), which entitles the applicant to initial equipment (see the judgment of the Lower Saxony-Bremen State Social Court of September 4, 2008, L 13 AS 518/06). This is because there is an exceptional circumstance that would allow the replacement equipment requested here to be considered, despite the wording of the provision, as an exception under Section 23 Paragraph 3 of the SGB II (see Rothkegel, in: Gagel, loc. cit., marginal note 65; Loose, loc. cit., marginal note 36). The second category of cases stems from the fact that, during the legislative process, house fires and the initial rental of an apartment after imprisonment were explicitly mentioned as cases requiring initial furnishing assistance (Bundestag printed matter 15/1514, p. 60), even though in such cases there is no actual need for initial furnishing assistance because the need is not new but arises again – after the fire or imprisonment. Nevertheless, benefits are granted in such cases (numerous references in Loose, op. cit., para. 35 et seq.). This category also includes cases of the dissolution of a shared household after separation or divorce (Federal Social Court, judgment of September 19, 2008 – B 14 AS 64/07 R –; Social Court Oldenburg, decision of January 12, 2006 – S 47 AS 1027/05 ER; Social Court Gelsenkirchen, decision of April 11, 2005 – S 11 AS 25/05 ER).
The present case of a complete renovation and deep cleaning of an apartment following prior accumulation of trash due to health and psychological problems constitutes an exceptional circumstance that necessitates the provision of replacement furnishings pursuant to Section 23 Paragraph 3 of the German Social Code, Book II (SGB II). This is because, even in such a case, all household goods and furniture have been lost through no fault of the resident. Therefore, the present situation must, in its outcome, be treated the same as the cases mentioned in the legislative process.
7.1 – Bremen Social Court S 23 AS 349/10 ER, decision of 11.03.2010
A repeated breach of duty within the meaning of Section 31 Paragraph 3 Sentence 2 of the German Social Code, Book II (SGB II) can only exist if the other breach of duty occurred before the one now being complained about.
www.socialcourt-bremen.de (pdf)
7.2 – Bremen Social Court S 26 AS 498/09, Judgment of 23 February 2010
Child benefit is not to be taken into account when calculating the housing cost subsidy according to Section 22 Paragraph 7 of the German Social Code, Book II (SGB II) (see Lower Saxony-Bremen Higher Social Court, decision of January 6, 2010, file number L 15 AS 1080/09 B ER). Housing benefit does not take precedence over the subsidy claim. To the extent that the administrative guidelines of the City of Bremen stipulate otherwise, this administrative practice is clearly unlawful.
7.3 – Bremen Social Court S 26 AS 1196/09, Judgment of 23 February 2010
Those in need of assistance who have been unlawfully assigned to a work opportunity in exchange for additional compensation (so-called "one-euro job") have no public-law claim for reimbursement against the basic income support provider for payment of the collectively agreed wage, at least if the work was not carried out at the benefit provider itself.
The general public-law claim for restitution is an independent legal institution of public law derived from general principles of administrative law, in particular the principle of legality of administration. It grants the claimant a right to the return of what has been obtained if a payment has been made without legal basis or if there has been any other unjustified transfer of assets. Its prerequisites and legal consequences, insofar as they are not regulated by specific statutes, correspond to those of the civil-law claim for unjust enrichment (see, for example, BVerwGE 71, 85, 88; 87, 169, 172 as well as BSG, Judgment of October 28, 2008 – B 8 SO 23/07 R –, BSG, Judgment of July 16, 1974 – 1 RA 183/73 –).
Ultimately, it is irrelevant whether the assignment to the work opportunity was made without legal basis. The parties have already been informed that, in the Chamber's view, the assignment does not generally constitute an administrative act (controversial, see also Hamburg Higher Social Court, decision of March 8, 2006 – L 5 B 34/05 ER –, leaving open the question Federal Social Court, judgment of December 16, 2008 – B 4 AS 60/07 R –). The "revocation" of the assignment is therefore not a prerequisite for asserting a public-law claim for reimbursement. However, it is also unnecessary to decide at this point whether the implementation of the work opportunity was without legal basis because it did not meet the statutory requirements and was therefore unlawful. The plaintiff correctly pointed out that work opportunities under Section 16 Paragraph 3 Sentence 2 of the German Social Code, Book II (now Section 16d Sentence 2 of the German Social Code, Book II, as amended by the Act of December 21, 2008, Federal Law Gazette I 2917) must involve additional work in the public interest (see also Section 261 of the German Social Code, Book III, and the Federal Social Court's judgment of December 16, 2008 – B 4 AS 60/07 R). However, the court does not share her criticism of the legality of the assignment in this form. This is because Radio XX, the plaintiff's place of employment, is the open channel operated by the Bremen State Media Authority for the cities of A-Stadt and EU. (cf. Section 1 Paragraph 1 of the statutes of the Open Channel in conjunction with Section 44 of the Bremen State Media Act of February 22, 2005, Bremen Law Gazette, p. 71) and not a privately owned and thus profit-oriented radio and television broadcaster. Whether the allocation of work opportunities actually resulted in the displacement of regular employment relationships, as the plaintiff claims, appears doubtful here. However, this question does not require further clarification by the court because the asserted claim already fails for other reasons.
The asserted claim for payment of a "salary difference" fails – apart from the fact that any social benefits already granted would have had to be deducted anyway – because the defendant, the social security provider, has not been unjustly enriched. The defendant cannot surrender anything because it has not received anything. It was not enriched by the assignment (and the work performed at the radio station).
It is insufficient that the implementing organization may have obtained a financial advantage (as argued by Thie in LPK-SGB II, 3rd ed. 2009, para. 35 on § 16d; left open by the Baden-Württemberg State Social Court, judgment of August 11, 2009 – L 13 AS 419/07). In any case, it would need to be clarified whether the implementing organization is actually GroneSchule GmbH and not Radio XX (see p. 17 of the annex to the benefits file). In any event, it is recognized within the framework of the public-law claim for reimbursement that a claim for reimbursement is generally only possible between the parties involved in the respective legal relationship (see Federal Social Court, judgment of October 28, 2008 – B 8 SO 23/07 R). This also means that the party from whom compensation for a financial advantage is demanded must have been enriched. This also corresponds to the previous case law of the Federal Administrative Court regarding work opportunities under Section 19 of the Federal Social Assistance Act (BSHG) (see Federal Administrative Court, Judgment of November 20, 1997 – 5 C 1/96 –). According to this case law, a claim for reimbursement against the social assistance provider existed only to the extent that it was enriched by the work performed in relation to the social assistance expenditures it had incurred (Federal Administrative Court, Judgment of December 16, 2004 – 5 C 71/03 –).
It should therefore only be noted in passing that the Chamber also has fundamental concerns regarding the plaintiff's approach. This is because primary legal protection against the assignment is not precluded. If the assignment is considered an administrative act, an order suspending its effect can be requested pursuant to Sections 86a Paragraph 2 No. 4, 86b Paragraph 1 Sentence 1 No. 2 of the Social Court Act (SGG) in conjunction with Section 39 No. 1 of the German Social Code, Book II (SGB II) (see Hamburg Social Court, Decision of June 28, 2005 – S 51 AS 525/05 ER –). If this view is not followed, legal protection via a declaratory judgment action is also not automatically excluded (Berlin Social Court, Decision of July 18, 2005 – S 37 AS 4801/05 ER –). In any case, a judicial review of the assignment takes place within the framework of a possible sanction decision following the termination of the measure, pursuant to Section 31 Paragraph 1 Sentence 1 No. 1 Letter d of the German Social Code, Book II (SGB II). However, failing to take action against state action recognized as unlawful in advance, in order to subsequently demand the surrender or compensation of a supposedly resulting financial advantage, fundamentally contradicts the legal order (see also, fundamentally, Federal Constitutional Court, Decision of July 15, 1981, BVerfGE 58, 300 et seq.; see also Federal Social Court, Judgment of December 15, 2009 – B 1 AS 1/08 KL –).
