There is no legal basis for entitlement to student transportation services within the system of subsistence benefits under the German Social Code, Book II (SGB II).
1. Travel expenses to school are neither provided for as additional needs under Section 21 of the German Social Code, Book II (SGB II), nor as special needs under Section 23 Paragraph 3 of the SGB II. The Second Book of the German Social Code (SGB II) does not provide for a deviation from the standard flat-rate benefits under Section 20 of the SGB II due to atypical needs, as is possible for assistance with living expenses or basic income support for the elderly and those with reduced earning capacity under Chapters Three and Four of the Twelfth Book of the German Social Code (SGB XII) by the provision of Section 28 Paragraph 1 Sentence 2 of the SGB XII (see BSGE 97, 242 = SozR 4-4200 § 20 No. 1, paragraph 19 in each case). The legislator clarified this with the insertion of Section 3 Paragraph 3 Sentence 1, second half-sentence, and Sentence 2 of the SGB II by the Act on the Further Development of Basic Income Support for Job Seekers of July 20, 2006 (Federal Law Gazette I 1706). The benefits provided under the German Social Code, Book II (SGB II), cover the needs of employable individuals receiving assistance and those living with them in a household unit. Determining needs differently is not permitted. The legislator deliberately refrained from creating a provision corresponding to Section 28 Paragraph 1 Sentence 2 of the German Social Code, Book XII (SGB XII) (see Bundestag Printed Matter 16/1696, p. 27: "The possibility provided for under social assistance law to determine needs differently if, in an individual case, a need unavoidably deviates significantly in amount from an average need (Section 28 Paragraph 1 Sentence 2 SGB II) is not provided for in the system of basic income support for job seekers.").
2. A claim to the requested benefit is also not possible because benefits for securing subsistence under Sections 19 et seq. of the German Social Code, Book II (SGB II) are not intended to finance the actual costs of training. According to the legislator's intent, the SGB II is not meant to enable the pursuit of training that is, in principle, eligible for other forms of support. Rather, the right to basic income support is to be kept separate from benefits for educational assistance insofar as the need for assistance with regard to subsistence arises from the training itself (BSGE 99, 67 = SozR 4-4200 § 7 No. 6, paragraphs 23 and 34, respectively). Even where Section 7 Paragraph 6 of the German Social Code, Book II (SGB II) provides for exceptions to the general exclusion of benefits, a specific training-related need is not covered (see the Senate's judgments of March 17, 2009 – B 14 AS 61/07 R, B 14 AS 62/07 R and B 14 AS 63/07 R). Rather, the transfer of training-related needs, which are not considered under training assistance law, into the realm of subsistence benefits is generally excluded (regarding the predecessor regulation of Section 26 of the Federal Social Assistance Act (BSHG), see BVerwGE 94, 224, 228; see also Bundestag Printed Papers 15/1514, p. 57 and 15/1749, p. 31), unless the legislator expressly permits exceptions, as is the case, for example, in Section 24a of the SGB II. The claimed travel expenses, however, constitute such a training-related need. The expenses for purchasing a student monthly pass are solely related to vocational training. They do not arise from using public transportation for general living purposes, but—regardless of the practical possibility of using the student monthly pass for other purposes—only in connection with attending vocational school. Accordingly, such travel expenses fall under the privileged portion of educational assistance pursuant to Section 11 Paragraph 3 Number 1 Letter a of the German Social Code, Book II (SGB II) (see the Senate's judgments of March 17, 2009 – B 14 AS 61/07 R, B 14 AS 62/07 R and B 14 AS 63/07 R).
3. Reimbursement of travel expenses cannot be claimed as a benefit for integration into employment under Section 16 of the German Social Code, Book II (SGB II). The specific integration benefits under basic income support law in Section 16 SGB II, in the versions applicable here (Civil Service Law Amendment Act of July 19, 2007 (Federal Law Gazette I 1457); Second Act Amending Book Two of the German Social Code of October 10, 2007 (Federal Law Gazette I 2326); and Act Amending Book Four of the German Social Code and Other Acts of December 19, 2007 (Federal Law Gazette I 3024)), do not grant such an entitlement, nor do the benefits of Book Three of the German Social Code (SGB III) incorporated into the catalog of benefits for basic income support for jobseekers via Section 16 Paragraph 1 SGB II. While the authorized municipal agency may, among other things, provide the benefits regulated in Section Six of Chapter Four of the SGB III pursuant to Section 16 Paragraph 1 Sentence 2 SGB II, this does not constitute a benefit for integration into employment. However, the reimbursement of travel expenses for attending a school that only leads to a school-leaving qualification is not among the objectives of the vocational training support regulated therein and is therefore not eligible for funding under Sections 77 et seq. of the German Social Code, Book III (SGB III). This is also clarified by Section 77 Paragraph 3 of the SGB III in the version applicable since January 1, 2009, as amended by the Act on the Reorientation of Labor Market Policy Instruments of December 21, 2008 (Federal Law Gazette I 2917), which exceptionally allows for the funding of employees by covering the costs of further training, which, according to Sections 79 Paragraph 1 No. 2 and 81 of the SGB III, also includes travel expenses, for the subsequent acquisition of a school-leaving qualification, but limits this to the lower secondary school leaving certificate or an equivalent qualification. The promotion of vocational training pursuant to Sections 59 et seq. of the German Social Code, Book III (SGB III) (Fifth Section of Chapter Four), which in any case does not include the promotion of school-based education (cf. Section 60 Paragraph 1 SGB III), is not among the benefits of the Third Book incorporated into the benefits catalog of the Second Book pursuant to Section 16 Paragraph 1 SGB II. According to the regulatory concept of Section 16 SGB II, promotion pursuant to Section 16 Paragraph 2 Sentence 1 SGB II is also not applicable here (cf. Eicher in Eicher/Spellbrink, SGB II, 2nd edition 2008, Section 16, marginal note 177).
4. Reimbursement of travel expenses cannot be claimed under Section 73 of the German Social Code, Book XII (SGB XII). According to this section, benefits (of social assistance) can also be provided in other life situations if they justify the use of public funds (sentence 1), whereby the benefits can be provided as a grant or as a loan (sentence 2). Apart from the fact that, according to the legislative concept, the special statutory provision on educational assistance would likely preclude any recourse to the social welfare provider (see BSGE 99, 67 = SozR 4-4200 § 7 No. 6, paragraphs 18 et seq. and BSG SozR, ibid., No. 8, paragraphs 25 et seq.), there is no special, atypical life situation that has a close connection to the other situations of need regulated in Chapters Five to Nine of Book Twelve, the so-called "assistance in special life situations" under the BSHG (BSGE 97, 242 = SozR 4-4200 § 20 No. 1, paragraphs 21 et seq.; see also BSG SozR 4-3500 § 21 No. 1, paragraph 24).
Neither school attendance nor the resulting travel expenses constitute an atypical life situation. Unlike the costs of visitation rights, where the fundamental rights under Article 6 Paragraph 2 of the Basic Law (GG) argue for a broader interpretation of Section 73 of the German Social Code, Book XII (SGB XII) (see Federal Constitutional Court (BVerfG), decision of October 25, 1994 – NJW 1995, 1342 = FamRZ 1995, 86; BSGE 97, 242 = SozR 4-4200 § 20 No. 1, each paragraphs 21 et seq.), the provision of benefits is not constitutionally mandated here. While the fundamental right to freely choose one's profession and place of education, enshrined in Article 12 Paragraph 1 Sentence 1 of the Basic Law, establishes not only a right of defense against state intervention but also a right to participate in state educational institutions, this does not apply in this case. However, this focuses primarily on equal access and not on guaranteeing the financial framework (BVerfGE 33, 303, 330 ff). In contrast, the Federal Constitutional Court has thus far left open the question of whether the Basic Law, in particular Article 12 Paragraph 1 (and subsidiarily, if applicable, Article 2 Paragraph 1) in conjunction with the social state principle (Article 20 Paragraph 1, Article 28 Paragraph 1 Sentence 1), can impose an obligation on the legislature to provide state benefits for individual educational support (BVerfGE 96, 330, 339).
5. Travel expenses cannot be reimbursed in the form of a loan pursuant to Section 23 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II). According to this provision, if, in an individual case, an unavoidable need for subsistence, which is covered by standard benefits, cannot be met either by assets pursuant to Section 12 Paragraph 2 Number 4 SGB II or in any other way, the Employment Agency, upon presentation of appropriate evidence, provides the necessary support in kind or in cash and grants the applicant a corresponding loan. These conditions are not met here. The claimed need is not even covered by standard benefits (cf. regarding travel expenses as school supplies pursuant to Section 21 Paragraph 1a Number 3 of the German Federal Social Assistance Act (BSHG), Federal Administrative Court Decision 105, 281). According to Section 20 Paragraph 1 Sentence 1 SGB II, standard benefits include, in particular, food, clothing, personal hygiene, household goods, household energy, and daily living expenses, as well as, to a reasonable extent, social interaction and participation in cultural life.
In determining the standard benefit rate, the legislator based its decision on the statistical model of social assistance law (see Bundestag printed matter 15/1516, p. 56). The basis for calculating the standard rates in social assistance is the standard rate derived from the Income and Expenditure Survey (EVS) (§ 2 para. 1 Standard Rate Ordinance (RSV) of June 3, 2004 (Federal Law Gazette I 2004, p. 1067)). The standard rate, in turn, is composed of the sum of consumer expenditures in specific categories defined in the relevant EVS. The proportion of each individual item relevant to the standard rate is determined by normative evaluation. As a separate item in section 07, transportation expenses, which also include the costs of passenger transport and transport services, are taken into account at a rate of 26% (§ 2 para. 2 RSV; cf. BSG SozR 4-4200 § 59 No. 1 para. 22: €19.18), while the education expenses listed in section 10 have been completely excluded from the calculation of the standard benefit rate as "not relevant to the standard benefit rate overall" (BR-Drucks 206/04 p. 6). Since the expenses for the student monthly pass are specifically education-related costs (see 2a above), they are not included in the standard benefit rate.
Even assuming that the costs for the student monthly pass are covered by the standard benefit (as also held by the Lower Saxony-Bremen State Social Court, decision of December 3, 2007 – L 7 AS 666/07 ER – info also 2008, 227), a loan would not be possible because these are recurring needs, not a one-off need. A loan for ongoing needs would, due to the offsetting stipulated in Section 23 Paragraph 1 Sentence 3 of the German Social Code, Book II (SGB II), constitute a burdensome mortgage for the future (BSGE 97, 242 = SozR 4-4200 § 20 No. 1, paragraph 20 in each case). The defendant rightly points out that, given the disputed monthly amounts and the extent of the offsetting provided for in Section 23 Paragraph 1 Sentence 3 of the SGB II, a loan would be rendered absurd.
2. Saxon State Social Court L 2 AS 451/09, Judgment of 25.02.2010
The Higher Social Court of Saxony, in its judgment of February 25, 2010 – Case No. L 2 AS 451/09 – dismissed the appeal of the Federal Employment Agency against the judgment of the Social Court of Leipzig of May 26, 2009 – Case No. S 23 AS 457/08. This judgment upheld the Federal Employment Agency's claim, based on fundamental considerations of social administrative law, against a late payment fee assessment for a claim for repayment of unemployment benefit II. Since the Higher Social Court of Saxony also recognized the illegality of the practice applied nationwide, the Federal Social Court granted leave to appeal to the Federal Social Court due to the fundamental importance of the case. The Federal Employment Agency has announced its intention to file an appeal.
Since only those with their own cases will benefit from a confirmation of the decision by the Federal Social Court, it is advisable to file an objection against all previous and all future late payment fee assessments, or
to submit a review application pursuant to Section 44 of the German Social Code, Book X (SGB X) regarding all late payment fee assessments that became known more than a year ago. If a review application is submitted in 2010, late payment fee refunds for the period up to and including January 1, 2006, may be considered.
3. LSG Berlin – Brandenburg L 10 AS 1801/09, judgment of 11 November 2009, pending before the BSG under B 14 AS 23/10 R
The fundamental question of whether a Union citizen who is legally residing in the Federal Republic for the purpose of seeking employment can be excluded from the exclusion from benefits under Section 7 Paragraph 1 Sentence 2 No. 2 of the German Social Code, Book II (SGB II), in accordance with European law, can remain open.
Because the plaintiff, as a French national, is entitled to benefits under the German Social Code, Book II (SGB II) and Book XII (SGB XII) according to the European Convention on Social Security (ECS). The ECS, as a more specific regulation for job-seeking foreigners from the signatory states, takes precedence over the provision of Section 7 Paragraph 1 Sentence 1 No. 1 of the SGB II.
Significant weight loss in a short period can lead to an entitlement to a grant for initial furnishings pursuant to Section 23 Paragraph 3 Sentence 1 No. 2 of the German Social Code, Book II (SGB II). This is because the provision of benefits under Section 23 Paragraph 3 Sentence 1 No. 2, like the initial furnishings for an apartment (Section 23 Paragraph 3 Sentence 1 No. 1 SGB II), is to be understood as a starter kit in the event of a fundamentally new life situation (see Hengelhaupt in Hauck/Noftz, SGB II, Section 23, marginal notes 343, 363). This is supported not only by the term "initial furnishings" but also by the simultaneous inclusion of initial furnishings for pregnancy and childbirth in the same provision. The term "initial furnishings" therefore presupposes that virtually no furnishings are available to meet the current needs. This can be the case, for example, after a prolonged period of imprisonment or homelessness, or as a result of significant weight changes.
Note: Section 23 Paragraph 3 of the German Social Code, Book II (SGB II), according to which, according to the legislative materials, initial clothing allowances are to be considered in addition to the events mentioned in the law, such as pregnancy and childbirth, particularly in exceptional circumstances (Bundestag printed matter 15/1749, p. 33 with reference to Bundestag printed matter 15/1514, p. 60).
Such circumstances requiring initial clothing provision can arise after imprisonment, in cases of homelessness, as well as in cases of significant weight fluctuations or exceptional growth in height (cf. BT-Drucksache 15/1514, 60, Münder, in: Münder [Hrsg.], SGB II, 2nd ed. 2007, § 23 Rdnr. 33).
The term "initial equipment" includes all items of clothing that the person seeking assistance did not previously possess due to social benefits (Lang/Blüggel [in: Eicher/Spellbrink, SGB II, 2nd edition, § 23 para. 105]). For needs under § 23 para. 3 SGB II, the loan provision of § 23 para. 1 SGB II does not apply (cf. Lang/Blüggel in Eicher/Spellbrink, SGB II, 2nd edition, § 23 para. 93).
An unavoidable need exists only if it could be met without delay and if failing to meet it would significantly impair the individual's ability to live a life essential for survival. It must be a need that is necessary and indispensable for leading a life of human dignity (see Eicher/Spellbrink, SGB II, 2nd edition, § 23, paragraphs 27, 29, 31 et seq.).
A need that unavoidably deviates in amount from an average need exists, for example, if the beneficiary has to wear more expensive undersized or oversized clothing (according to the official justification of the draft law, BT-Drucks. 15/1514).
3.2 – Berlin-Brandenburg State Social Court L 34 AS 883/09, Judgment of 25 February 2010
4. LSG NRW L 12 SO 14/10 B ER, decision of 12.03.2010
Outstanding energy consumption costs are not to be covered if the applicants have not attempted to arrange an installment payment agreement with the utility company. Furthermore, the apartment is not considered uninhabitable in the event of a future interruption of the electricity and gas supply by the energy provider, as it is reasonable to expect the apartment to be heated with propane, for example, and to cook and heat water on a gas stove, and to use candles and kerosene lamps for lighting.
4.1 – LSG NRW L 7 B 467/09 AS, decision of 09.03.2010
Legal aid is to be granted for the legal question requiring clarification as to whether the case law of the Federal Social Court on social assistance, according to which basic income support for the elderly and those with reduced earning capacity does not require a follow-up application after the expiry of an approval period (BSG, judgment of 29.09.2009, B 8 SO 13/08 R), can also be applied analogously to the granting of benefits under the German Social Code, Book II (SGB II).
It is doubtful whether the Federal Social Court's jurisprudence on social assistance, according to which basic income support for the elderly and those with reduced earning capacity does not require a follow-up application after the expiry of an approval period (Federal Social Court, judgment of September 29, 2009, B 8 SO 13/08 R), can also be applied analogously to the granting of benefits under Book II of the German Social Code (SGB II) (cf. Dr. Jens Blüggel, in Social Security 5/2009, page 193 et seq., No benefits without an application; on the requirement of a follow-up application after the expiry of the approval period, see link in Eicher/Spellbrink, Commentary on SGB II, 2nd edition 2008, § 37 para. 19; Hessian State Social Court, judgment of December 18, 2009, L 7 AS 413/09; North Rhine-Westphalia State Social Court, judgment of April 17, 2008, L 9 AS 69/07). A final ruling from the highest court is still required regarding the issue of basic income support for job seekers. Legal aid must also be granted in cases involving a legal question requiring clarification (Leitherer in Meyer-Ladewig/Keller/Leitherer, Commentary on the Social Court Act, 9th edition 2008, § 73a para. 7b).
4.2 – LSG NRW L 12 B 105/09 SO, decision of 17.03.2010
Legal aid should be granted for the legal question requiring clarification as to whether wheelchair users with the disability marker G are entitled to a higher level of housing allowance.
The recent considerations of the Federal Social Court (see, among others, judgment of 22.09.2009 – B 4 AS 18/09 R -) regarding the determination of the relevant amount based on a "conclusive concept" are to be applied to the determination of the appropriate amount for the costs of accommodation within the framework of Section 29 SGB XII.
Note: Federal Social Court (BSG), judgment of September 22, 2009, B 4 AS 18/09 R
The assumption of costs for accommodation under the German Social Code, Book II (SGB II), may not be refused due to an inconclusive determination of the reasonable limit if the refusal is not based on a conclusive concept for determining a reasonable level of housing costs.
To specify the limit of appropriateness, according to the case law of the Federal Social Court (BSG), the abstractly appropriate size and standard of accommodation are determined in a first step, and in a second step, the spatial comparison standard to be used for the further examination steps is determined.
According to the Federal Social Court's (BSG) jurisprudence, the appropriateness of apartment size is determined by referring to the values established by the federal states pursuant to Section 10 of the Law on Social Housing Promotion (WoFG) (see BSG, judgment of November 7, 2006 – B 7b AS 18/06 R, BSGE 97, 254 = SozR 4-4200 § 22 No. 3 para. 19; judgment of June 18, 2008 – B 14/7b AS 44/06 R: Osnabrück). Pursuant to Section 10 WoFG, the federal states may set limits for apartment sizes in subsidized housing construction, up to which subsidies are considered. The present panel considers this point of reference problematic (see, for details of its criticism, the panel's judgment of February 19, 2009 – B 4 AS 30/08 R, paras. 16 et seq., concerning the city of Munich). For reasons of legal certainty and practicality, he currently considers it justifiable to proceed in the same manner as the other senates of the Federal Social Court (BSG) until the legislator has itself enacted a nationwide regulation defining appropriate apartment sizes, which is possible under Section 27 of the German Social Code, Book II (SGB II) and urgently desirable with regard to the uniform application of the law. The determination of the comparison area involves ascertaining a (reasonable) reference rent at the place of residence or in the wider residential environment of the person in need of assistance. Therefore, starting from the place of residence of the recipient of assistance, the benchmark is those sufficiently large areas (not merely districts or neighborhoods) of residential development that, due to their spatial proximity to one another, their infrastructure, and especially their transport connections, constitute a homogeneous living and residential area overall (for details, see the Senate's judgment of February 19, 2009 – B 4 AS 30/08 R, paragraphs 20-23, Munich).
Once the abstractly appropriate apartment size and the relevant comparison area have been established, the Federal Social Court (BSG) has ruled that, in a third step, the cost of a basic apartment on this housing market must be determined according to the product theory. This means that the basic income support provider aims to determine a price per square meter for apartments of basic standard, which is then multiplied by the square footage allocated to the recipient of assistance, thus determining the appropriate rent.
A flat, nationwide limit (price per square meter) is not feasible here, since, on the one hand, the specific circumstances must be considered, and on the other hand, housing costs can vary considerably between different comparison areas. To nevertheless ensure consistent administrative action even within a comparison area, the determination of the regional reasonableness limit (Judgment of June 18, 2008 – B 14/7b AS 44/06 R) must be based on a verifiable and "coherent concept". The coherent concept should provide sufficient assurance that the current conditions of the local rental housing market are reflected (see BSG, judgment of 18 June 2008 – B 14/7b AS 44/06 R = FEVS 60, 145, 149; see also BSG, judgment of 19 March 2008 – B 11b AS 41/06 R = SozR 4-4200 § 22 No. 7 para. 23). The basic income support provider is not necessarily required to rely on a simple or qualified rent index as defined in Sections 558c and 558d of the German Civil Code (BGB) (see judgment of the 7b Senate of November 7, 2006 – B 7b AS 18/06 R, BSGE 97, 254 = SozR 4-4200 § 22 No. 3; BSG, judgment of June 18, 2008 – B 14/7b AS 44/06 R = juris para. 7). Rather, what is decisive is that the basic income support provider's findings are based on a concept, that this concept is coherent in the interest of the verifiability of the result, and that the limitation of the actual accommodation costs to a "reasonable level" is thus sufficiently comprehensible.
A concept is a planned approach by the basic income support provider in the sense of systematically determining and evaluating general, albeit location- and time-dependent, facts for all applications in the relevant comparison area and not just a case-by-case approach.
The concept is sound if it meets at least the following requirements:
= Data collection must take place exclusively within the precisely defined area and must cover the entire comparison area (no ghettoization)
= a comprehensible definition of the object of observation is required, e.g., what type of apartments – differentiation according to apartment standard, gross and net rent (comparability), differentiation according to apartment size,
= Information about the observation period,
= Determining the method of data collection (sources of information, e.g. rent index),
= Representativeness of the scope of the collected data,
= Validity of the data collection,
= Compliance with recognized mathematical-statistical principles of data analysis and
= Information about the conclusions drawn (e.g., upper range or capping limit).
To date, legislators and regulatory authorities have refrained from issuing normative guidelines to the administration on how to determine the adequacy threshold. Therefore, the administration is not bound to a specific procedure for the time being. Based on its knowledge of local conditions, it is best positioned to assess which approach would be most suitable for collecting the data relevant to basic income support law. For example, depending on the circumstances, it may be sufficient to collect the necessary data from local housing cooperatives if the majority of the apartments available to benefit recipients are owned by these cooperatives. However, such information alone is insufficient if the cooperatives do not own a significant share of the housing stock in the relevant area and a rent survey cannot provide a valid data basis for determining the adequacy threshold.
A sound concept can be based on apartments from the entire housing stock (basic, average, and superior standards) as well as on apartments of basic standards only. If the social security provider bases its data collection solely on apartments of so-called basic standards, it must transparently disclose the criteria used for this selection. In this case, the upper limit of the rent range, i.e., the top value of the determined rent range, must be used as the limit of what is considered reasonable.
For data collection purposes, not only data from apartments actually offered on the market are considered, but also data from those already rented (Judgment of the Senate of February 19, 2009 – B 4 AS 30/08 R = para. 24). In contrast to the creation of rent indices or rent databases, whose primary objective is the continued functioning of the market for privately financed rental housing (Federal Ministry of Transport, Building and Urban Development, Guidelines for the Creation of Rent Indices, as of July 2002, p. 3), for the purposes of calculating housing costs, all living space that is actually rented for this purpose must generally be taken into account; this includes, for example, living space where the rent is fixed by law or in connection with a funding commitment. However, living space whose rent cannot provide reliable information about local conditions is not to be considered; this includes, for example, living space in dormitories or hostels and gratuitous tenancies (e.g., agreements on particularly low rents between relatives). Also excluded is living space that is generally not intended to be rented for longer than six months and is therefore, in the Senate's view, only temporary (e.g. holiday apartments, apartments for assembly workers).
The collected data must be comparable, meaning they must be based on the same definition of rent. Typically, this is either the net or gross rent. If the net rent is chosen as the basis, the operating costs (excluding utilities) must be deducted from the gross rent. If the gross rent is the basis for comparison, data on the operating costs payable separately by the tenant must also be collected. If, for example, living space is rented (partially) furnished and the fee payable for the use of the furniture can be determined, this amount must be deducted; otherwise, an amount that is customary for this purpose according to the local comparative standard must be deducted.
If the social security provider decides to create a rent index relevant to social security purposes, this will regularly only be possible on the basis of a sample for financial reasons. In this case, it is advisable to adhere to the standard applicable to rent indices with regard to sample size and evaluation, etc. (see Federal Ministry of Transport, Building and Urban Development, Guidelines for the Creation of Rent Indices, as of July 2002, pp. 38 ff.): The sample can be, but does not have to be, proportional. In this context, proportional means that such a sample also includes all essential subsets of the population in similar proportions (Börstinghaus/Clar, Rent Index, 1997, para. 650).
It is essentially the responsibility of the basic income support providers to develop a coherent concept for their area of jurisdiction, based on which the necessary data for determining the adequacy limit are collected and evaluated. The insights gained from such a concept are therefore, in principle, necessary for the basic income support provider to make a sound decision in administrative proceedings and must be presented by the basic income support provider in any legal dispute. If the basic income support provider decides without a sufficient data basis, it is obligated, within the scope of its procedural duty to cooperate pursuant to Section 103 Sentence 1, second half-sentence of the Social Court Act (SGG), to provide the court with the most reliable basis for its decision possible and, if necessary, to carry out any omitted data collection and processing. The municipal authority responsible for benefits under Section 22 of the German Social Code, Book II (SGB II), pursuant to Section 6 Paragraph 1 Sentence 1 Number 2 SGB II, can be expected to provide the data it holds as well as the personal and/or material prerequisites for collecting and evaluating the necessary data. This duty to investigate does not automatically transfer to the social court if the basic income support provider's concept proves to be unsustainable (unconvincing) or if, in the case of an otherwise coherent concept, the necessary data have not been collected or have not been collected properly.
If the determination of the basic income support provider's limit of reasonableness is not based on a coherent concept, the social court has the option of overturning the contested administrative act within six months of receiving the case file, pursuant to Section 131 Paragraph 2 of the Social Court Act (SGG). The defendant's interests can be protected by the court issuing a preliminary injunction (Section 131 Paragraph 5 Sentence 2 SGG) until a new administrative act is issued. This injunction may also include the obligation to continue paying the actual housing costs. If, after exhausting all avenues of investigation, the court is convinced that no further information is available—for example, due to the passage of time—the basic income support provider must cover the recipient's actual housing expenses. However, even in this case, these expenses are not unlimited, but are limited to the amount of the moderately increased table values in Section 8 of the Housing Benefit Act (WoGG).
Inaccurate information provided by the social security agency regarding the adequacy of housing can give rise to a claim for reimbursement of excessive housing costs under Section 22 Paragraph 1 Sentence 3 of the German Social Code, Book II (SGB II) (until July 31, 2006: Section 22 Paragraph 1 Sentence 2 SGB II), if this information renders cost-reduction measures impossible (see in detail the Senate's judgment of February 19, 2009 – B 4 AS 30/08 R: Munich = paragraphs 27 et seq.). However, the insufficient factual findings of the Higher Social Court (LSG) do not allow the Senate to make a final judgment as to whether the defendant provided false or misleading information that was the cause of the unsuccessful housing search. Therefore, the LSG may need to make further findings in this regard.
Even if the market value of a life insurance policy at the relevant time according to Section 12 Paragraph 4 Sentence 1 of the German Social Code, Book II (SGB II) has exceeded the exemption limit according to Section 12 Paragraph 2 Numbers 1 and 4 of the SGB II, the realization of the life insurance policy may be uneconomical within the meaning of Section 12 Paragraph 3 Sentence 1 Number 6 Alternative 1 of the SGB II (here for the case of more than 29%). As the Federal Social Court (BSG) has already stated in several decisions, obvious uneconomicalness exists when the consideration to be obtained is clearly disproportionate to the actual value of the asset to be realized (BSG, judgments of 15 April 2008 – B 14 AS 27/07 R, B 14/7b 53/06, B 14 AS 56/06 R; BSG, judgment of 6 September 2007 – B 14/7b AS 66/06 R; BSG, judgment of 17 October 1990 – 11 RAr 133/88, DBlR 3785a, § 137 AFG; BSG, judgment of 25 April 2002 – B 11 AL 69/01 R, DBlR 4750a, AFG/137).
However, the liquidation of the life insurance policy is clearly uneconomical for the applicant within the meaning of Section 12 Paragraph 3 Sentence 1 Number 6 Alternative 1 of the German Social Code, Book II (SGB II). As the Federal Social Court (BSG) has already stated in several decisions, clear uneconomicalness exists when the proceeds to be obtained are significantly disproportionate to the actual value of the asset to be liquidated (BSG, judgments of April 15, 2008 – B 14 AS 27/07 R, B 14/7b 53/06, B 14 AS 56/06 R; BSG, judgment of September 6, 2007 – B 14/7b AS 66/06 R; BSG, judgment of October 17, 1990 – 11 RAr 133/88, DBlR 3785a, Section 137 AFG; BSG, judgment of April 25, 2002 – B 11 AL 69/01 R, DBlR 4750a, AFG/137). Conversely, there is no obvious uneconomical nature of asset realization if the result of the realization deviates only slightly from the actual value (regarding unemployment benefits, see BSG SozR 3-4100 § 137 No. 7). With regard to the economic efficiency of the realization, the economic calculation of a rationally acting market participant must be considered (regarding unemployment benefits law, see Spellbrink, Kasseler Handbuch des Arbeitsförderungsrechts [Kassel Handbook of Employment Promotion Law], 2003, § 13 para. 208). It is therefore necessary to determine the current market value of the asset. This current selling price must be compared to the intrinsic value. In the case of a life insurance contract, this is derived from the premiums paid, and the market value from the surrender value of the policy. The Federal Social Court (BSG) has not yet uniformly assessed the specific loss threshold that leads to obvious uneconomicalness. The 11b. In its judgment of November 23, 2006 (B 11b AS 17/06 R, para. 24 juris), the Senate of the Federal Social Court (BSG) indicated that it would consider losses exceeding 10% to still be within the bounds of economic viability. The 14th Senate, however, did not consider the threshold of manifest uneconomicalness within the meaning of Section 12 Paragraph 3 Sentence 1 No. 6 of the German Social Code, Book II (SGB II), to be reached at a loss of 12.9% (BSG, judgments of April 15, 2008, ibid.). At the same time, the BSG pointed out that the intrinsic value of a life insurance policy does not consist solely of the premiums paid, but also includes the opportunity or entitlement to a significantly higher total sum in the event of payout or pension payments. In light of this, it has been considered doubtful whether a loss of 18.5% (when considering only the ratio of amounts paid in and the repurchase value in isolation) is still within the realm of economic viability.
The liquidation of the life insurance policy is manifestly uneconomical according to these principles. The proceeds to be obtained are clearly disproportionate to the actual value of the asset being liquidated. The Senate can leave open the question of what loss threshold, based on the aforementioned case law of the Federal Social Court (BSG), leads to manifest uneconomicalness. This is because the surrender value of €10,706.85 was €4,459.74 less than the premiums paid, amounting to €15,165.59. The resulting loss, calculated solely from the ratio of premiums paid to surrender value, which exceeds 29%, is clearly no longer within the bounds of economic efficiency as defined in Section 12 Paragraph 3 Sentence 1 Number 6 Alternative 1 of the German Social Code, Book II (SGB II).
The respondent was not authorized, when examining the obvious uneconomical nature of liquidating the life insurance policy, to "fictitiously" add the profit participation of €2,959.30 paid to the applicant on April 18, 2005, and credited to his checking account, to the surrender value in addition to the surrender value communicated by Allianz Life Insurance AG. This calculation ultimately led to the denial of eligibility for assistance, as the resulting "fictitious" surrender value of €13,666.15 was then €17.12 higher than the relevant value of 90% of the premiums paid. Firstly, this calculation by the respondent contradicts the jurisprudence of the Federal Social Court (BSG). The Federal Social Court (BSG) stated that the surrender value reflects the current market value (BSG, Judgment of April 15, 2008 – B 14 AS 27/07 R, para. 42). If amounts are added as accounting items, the market value of the asset is no longer realistically represented. Furthermore, the applicant no longer has access to the profit participation as readily available funds to cover his living expenses. This is because he used the amount received in April 2005 to regain his driver's license and to repay a loan.
5. Social Court Berlin S 160 AS 27361/09 ER, decision of 25.09.2009
Unemployment benefit II – Reimbursement notice after final determination of provisionally granted benefits – Determination of the suspensive effect
1. It is not apparent why, in the area of basic income support for jobseekers under Book II of the German Social Code (SGB II), the interest of the benefit provider in the immediate reimbursement of benefits already paid should outweigh the interest of the (needy) benefit recipient in the (provisional) retention of the payments made to secure their livelihood. These considerations apply equally to a reimbursement order under Section 50 of Book Ten of the German Social Code (SGB X) and to one under Section 328 Paragraph 3 Sentence 2 of Book Three of the German Social Code (SGB III).
2. The wording of Section 39 No. 1 of the German Social Code, Book II (SGB II nF), the explanatory memorandum to the law, and the purpose of the principle of the suspensive effect of objections all indicate that an objection against reimbursement notices has suspensive effect. This applies regardless of the legal basis on which the reimbursement notice is based
6. Social Court Landshut S 7 AS 586/09 ER, decision of 27.10.2009
Benefits under the German Social Code, Book II (SGB II), could not be denied due to a lack of cooperation, provided that the obligations under Section 60 Paragraph 1 Sentence 1 of the German Social Code, Book I (SGB I) were not violated, as the limit of cooperation arising from Section 65 Paragraph 1 Number 2 of the SGB I had been exceeded. According to this provision, obligations to cooperate under Sections 60 to 64 of the SGB I do not apply if fulfilling them cannot reasonably be expected of the person concerned for an important reason. This is the case here with regard to the documentation of the income and assets of the applicant's parents. The request for these documents concerns third parties who are not involved in the social welfare relationship. Obligations to provide information concerning third parties extend only to facts known to the benefit recipient (cf. Federal Social Court (BSG), Judgment of March 10, 1993 – Case No.: 14b/4 REg 1/91). In principle, the benefit recipient has no obligation to investigate third parties. They are not required to obtain any information. It follows that there is also no obligation to obtain and submit evidence, such as documents, from a private third party. This must apply in particular if the third party in question or the parents of the child have refused to provide the relevant information.
7. Social Court Duisburg S 5 AS 19/09, Judgment of 11.03.2010
Child benefit for adult children not living in their parents' household is considered income for those children if it can be proven that the benefit is passed on to them. One form of such transfer is the diversion of the benefit by the family benefits office if the person entitled to the benefit fails to meet their legal maintenance obligation (see Brühl in: LPK, 3rd ed. 2009, § 11 para. 31).
A flat rate of EUR 30.00 per month is to be deducted from the income of adult recipients of assistance who do not live in a household with other adult recipients of assistance for contributions to private insurance policies that are deductible from income pursuant to Section 11 Paragraph 2 Sentence 1 Number 3 of the German Social Code, Book II (SGB II), provided that these contributions are reasonable in amount and purpose (for the deduction of child benefit for adult children under the old law, see in particular the Federal Social Court (BSG) judgment of June 18, 2008 – B 14 AS 55/07 R –).
If child benefit was paid twice in January 2008 for December 2007 and January 2008, the insurance allowance is not to be taken into account twice.
This follows directly from the wording of Section 6 Paragraph 1 Number 1 of the Regulation on Unemployment Benefit II (Alg II-V) in its relevant version, according to which the insurance allowance of EUR 30.00 per month is to be deducted from income. The allowance is therefore solely related to the month. It is, however, independent of the amount of income. By setting the amount at EUR 30.00 per month, the legislator has definitively defined the vague concept of "appropriateness" in Section 11 Paragraph 2 Number 3 of the German Social Code, Book II (SGB II) (see Federal Social Court (BSG), Judgment of June 18, 2008 – B 14 AS 55/07 R – ; Mecke in: Eicher/Spellbrink, 2nd edition 2008, Section 11 SGB II, marginal note 105).
The systematic consideration of income under Section 11 of the German Social Code, Book II (SGB II) in conjunction with Sections 2 et seq. of the Regulation on Unemployment Benefit II (Alg II-V) (see, for example, Section 11 Paragraph 2 Sentences 2 and 3 SGB II; Section 2 Paragraph 2 Sentences 1 and 3 Alg II-V) also generally follows the monthly principle (Mecke in: Eicher/Spellbrink, 2nd edition 2008, Section 11 SGB II, marginal notes 53 et seq.; Brühl in: LPK, 3rd edition 2009, Section 11 marginal note 46). None of the regulated exceptions, particularly regarding income from self-employment, are applicable; rather, the rule of Section 6 Paragraph 1 No. 1 Alg II-V applies.
The purpose of recognizing a flat-rate insurance allowance does not lead to a different conclusion. The flat rate is intended to cover those monthly premiums for private insurance policies that are reasonable and customary for citizens living in modest economic circumstances in Germany (in particular, household contents, liability, and partial comprehensive car insurance), regardless of whether they were actually paid (see Federal Social Court [BSG], judgment of May 13, 2009 – B 4 AS 39/08 R). It is intended to avoid having to individually verify the amount of monthly insurance premiums when calculating basic income support benefits (see Federal Social Court [BSG], judgment of June 18, 2008, ibid.; Mecke in: Eicher/Spellbrink, 2nd edition 2008, § 11 SGB II, para. 105). However, receiving regular income and an additional back payment of income in a given month does not result in a doubling of the unchanged monthly insurance premiums or the flat rate that replaces them.
If the information provided regarding the legal consequences is insufficient, the job center may not impose a sanction (Federal Social Court judgment of 19.02.2010, B 14 AS 53/08 R).
9. SG Chemnitz S 3 AS 462/10 ER, Decision of 09.03.2010
Private health insurance contributions of Hartz IV recipients are to be recognized as an atypical need (Judgment of the Federal Constitutional Court of 09.02.2010, Case No.: 1 BvL 1/09).
10. SG Magdeburg, decision of 20.02.2010, S 11 AS 3600/09 ER
Assumption of all rental costs upon signature of the rental agreement by the parents
Quote:
The Social Court of Magdeburg has ruled that a recipient of Hartz IV benefits can demand that the landlord cover the entire rent if they live alone in a suitable apartment.
The indebted benefit recipient lives alone in a 37-square-meter apartment. For creditworthiness reasons, the landlord had insisted that both parents, who have their own apartments, co-sign the lease. The job center (ARGE) only approved one-third of the rent; according to the lease, the parents were to pay the remainder to the landlord. An initial court case was decided in favor of the benefit recipient. However, the job center subsequently reverted to paying only one-third of the rent.
The Social Court of Magdeburg has now ordered the job center to cover the entire rent.
According to the court, the parents only signed the lease for creditworthiness reasons and did not become tenants.
