If the job center unlawfully grants benefits under the German Social Code, Book II (SGB II) without knowledge of the lack of employability, this does not entitle the person in need to further benefits such as the additional needs allowance under Section 21 Paragraph 5 of the SGB II, because this requires the receipt of benefits under the SGB II, as long as there is no case under Section 44a Paragraph 1 Sentence 3 of the SGB II.
Author's note: No additional allowance for expensive nutrition will be granted by SGB II benefit providers without current receipt of standard benefits under SGB II (LSG Lower Saxony-Bremen, decision of 09.07.2009, file no. L 7 AS 566/09 B ER).
1.1 – Berlin-Brandenburg State Social Court L 18 AS 576/06 20.01.2010, Judgment
Contributions to life insurance policies are not fully deductible from the company pension to be taken into account as income pursuant to Section 9 Paragraph 2 Sentence 1 of the German Social Code, Book II (SGB II), in accordance with Section 11 Paragraph 2 No. 3 SGB II.
Contributions to life insurance policies are not fully deductible from company pensions considered income under Section 9 Paragraph 2 Sentence 1 of the German Social Code, Book II (SGB II), as stipulated in Section 11 Paragraph 2 Number 3 SGB II. This is because, according to Section 11 Paragraph 2 Number 3 SGB II, only a flat rate of €30 can be deducted for existing private insurance policies. There are no objections to either the amount of the flat rate of €30 or the legality of the authorization to issue regulations in Section 13 SGB II (Federal Social Court [BSG], Judgment of February 27, 2008 – B 14/7 b AS 32/06 R = SozR 4-4200 § 20 No. 6; BSG SozR 4-4200 § 20 No. 3). The amount of 30 EUR according to § 3 para. 1 no. 1 Alg II-V thus covers in a permissible manner the contributions to private insurances that are generally customary for citizens living in simple circumstances (BSG SozR 4-4200 § 22 no. 3).
1.2 – Berlin-Brandenburg State Social Court L 29 AS 2052/09 B ER 18.01.2010 legally binding, decision
The assumption of debts pursuant to Section 22 Paragraph 5 Sentence 2 of the German Social Code, Book II (SGB II) is not justified if the loss of the apartment cannot be prevented by the assumption of the debts; there is no legal principle that debts pursuant to Section 22 Paragraph 5 Sentence 1 of the German Social Code, Book II (SGB II) must always be assumed if there are minor children.
1.3 – Berlin-Brandenburg State Social Court L 20 AS 1822/09 B ER 25.02.2010 legally binding, decision
Eligible expenses for accommodation costs do not arise if accommodation can be used free of charge.
According to Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), benefits for accommodation and heating are provided in the amount of the actual expenses, insofar as these are reasonable. As is clear from the wording of the law, the basic income support provider is only required under Section 22 Paragraph 1 Sentence 1 SGB II to cover costs that the person in need has actually incurred and for which there is a legitimate need. The purpose of the regulation regarding the reimbursement of accommodation costs is to prevent homelessness. This threatens – in the case of a rented apartment – if rent is not paid (see Federal Social Court – BSG, judgment of March 3, 2009 – B 4 AS 37/08 R – paragraph 24). Accordingly, rent costs are regularly eligible for reimbursement, whereby it is generally sufficient that the person in need is subject to a valid and not permanently deferred rent claim during the respective benefit period. The same principle applies to the reasonable costs of owner-occupied residential property (see, among others, Federal Social Court [BSG], judgment of September 22, 2009 – B 4 AS 70/08 R –, judgment of April 15, 2008 – B 14/7b AS 34/06 R –, SozR 4-4200 § 12 No. 10). However, no eligible expenses arise if accommodation can be used free of charge (Berlit, in: LPK-SGB II, § 22 para. 18).
2. State Social Court of Baden-Württemberg L 7 AS 304/10 ER-B 08.04.2010, Decision
3. State Social Court of Mecklenburg-Vorpommern, 8th Senate, Decision of 11 January 2010, L 8 B 211/08
If a move occurs during an interruption of benefits for at least one month under the German Social Code, Book II (SGB II), no assurance from the benefit provider is required under Section 22 Paragraph 2 of the SGB II, as such an assurance is only required during the period of benefit receipt. However, if benefit receipt ends for at least one month, this constitutes such a significant break that the requirement for approval becomes irrelevant in such a case.
Source: Juris
Author's note: A previous request to reduce costs cannot justify a reduction in benefits when benefits are received again after a longer period of employment (LSG Lower Saxony-Bremen, decision of 18.05.2009, file no. L 9 AS 529/09 B ER, LSG Lower Saxony-Bremen, decision of 18 April 2007 file no.: L 9 AS 141/07 ER).
If a recipient of social assistance has not been receiving basic income support under the German Social Code, Book II (SGB II) for more than one year and was able to cover their housing costs, which are deemed unreasonable under basic income support law, from their available income during this period, they cannot be immediately confronted with a past request to reduce their housing costs after reapplying for benefits. Instead, pursuant to Section 22 Paragraph 1 Sentence 3 of the SGB II, they must be granted a transitional period to reduce their housing costs. During this period, their actual housing costs must be taken into account as a need when calculating benefits, pursuant to Section 22 Paragraph 1 Sentence 1 of the SGB II (Dr. Christiane Padé, jurisPR-SozR 25/2009 Note 1).
In any case, in instances where the period of non-need for assistance does not significantly exceed the standard benefit period of six months stipulated in Section 41 Paragraph 1 Sentence 4 of the German Social Code, Book II (SGB II), Section 22 Paragraph 1 Sentence 2 of the SGB II also applies to a new application for benefits after a renewed need for assistance has arisen. The reasons why the employment relationship lasted only a short time are irrelevant in this context. This is because if the employable person was still in need of assistance at the time of the move, and thus Section 22 Paragraph 1 Sentence 2 of the SGB II could have been applied, their potential expectation of being able to cover the higher accommodation and heating costs from their own income in the future was not yet worthy of protection (Saxony State Social Court L 3 B 530/08 AS-ER 20.10.2008, Decision).
4. Bavarian State Social Court L 7 AS 124/09 of 04.12.2009
Tuition fees paid directly by the father to his daughter's private school are not considered income. While they represent a benefit in kind, they do not constitute readily available funds that can be used for specific needs. The portion of the tuition fees designated as a meal allowance is not considered income in any case; the remainder is, at most, a designated payment that is not taken into account.
www.sozialgerichtsbarkeit.de
Author's note: Monthly financial contributions from the mother (here €200 per month) to pay school fees are not considered income under the German Social Code, Book II (Social Court Berlin S 104 AS 11370/06 ER 21.02.2007, decision).
Tuition paid by a father for his children to attend a private school is not to be considered as income when receiving Hartz IV benefits (SG Speyer S 14 AS 179/08, legally binding judgment of 15.08.2008).
5. State Social Court of North Rhine-Westphalia L 19 (20) AS 50/09 15.03.2010, Judgment
While the recommendations for additional needs may indicate a different level of need in cases of food intolerances, the general assertion by the person in need of assistance that they have special nutritional needs due to a food allergy requiring a specific diet, the costs of which are not covered by standard benefits, is insufficient to prove the prerequisites for additional needs under Section 21 Paragraph 5 of the German Social Code, Book II (SGB II) (here for the case of hyperlipidemia, hypertension, and diabetes mellitus).
In the preliminary injunction proceedings, the person in need of assistance must specify which foods they are allergic to and what special dietary needs they have that are not met by a standard diet. It will be to the detriment of the person in need of assistance if they have not provided a comprehensive release of confidentiality regarding their doctors treating them for food allergies during the court proceedings.
5.1 – North Rhine-Westphalia State Social Court L 7 B 451/09 AS ER 08.04.2010 legally binding, decision
The notification of legal consequences pursuant to Section 31 of the Second Book of the German Social Code (SGB II) must be specific, comprehensible, correct, and complete. For such notification to be effective, it must be specific, correct, and complete, provided promptly in connection with the respective job offer, and explain to the employable person receiving assistance, in an understandable way, the direct and concrete consequences of non-participation if there is no valid reason for doing so. The Federal Social Court's (BSG) jurisprudence does not impose requirements that are practically impossible to meet. It is already common practice for some basic income support providers to include a notification of legal consequences related to specific participation in a job placement offer, the assignment of a job opportunity, or similar measures.
Author's note: The information regarding the legal consequences must be specific, understandable, correct, and complete, in accordance with the principles developed for the various grounds for benefit suspension (Federal Social Court, judgment of December 16, 2008, B 4 AS 60/07 R). It is insufficient, however, to simply provide the employable person in need of assistance with an information sheet from which they must independently determine the relevant conditions and legal consequences for their specific case (Social Court Detmold, S 18 (22) AS 21/09, judgment of February 10, 2010; Social Court Dortmund, decision of January 5, 2010, S 22 AS 369/09 ER and judgment of March 3, 2009, S 31 AS 317/07).
6. Hessian State Social Court L 6 AS 516/09 B ER 12.03.2010 legally binding, decision
Repayment of loan installments for a self-occupied, reasonable property must be covered by the basic income support provider up to the amount of the reasonable costs of a rented apartment as accommodation costs if the person in need would otherwise have to give up their apartment.
The Bavarian State Social Court (LSG) ruled on the question of when it can be assumed that the owner-occupied residential property is largely financed/paid off, stating that the assumption of repayment obligations is only possible in exceptional cases (Bay. LSG v. 10.10.2008 – L 16 B 449/08 AS ER).
7. Social Court Duisburg S 5 AS 1118/10 ER 06.04.2010, Decision
The SGB II benefit providers in Duisburg feel bound by the directive of the State Ministry for Labour, Health and Social Affairs (MAGS) in North Rhine-Westphalia, according to which up to 47 square meters of living space is appropriate for a single person (see guide: Costs of accommodation and heating according to § 22 SGB II, 4th edition, as of 1 March 2010, p. 15).
www.harald-thome.de (pdf)
www.socialgerichtsbaren.de
Author's note: In North Rhine-Westphalia, up to 50 square meters of living space is considered appropriate for a single person within the meaning of Section 22 of the German Social Code, Book II (SG Aachen S 6 AS 205/10 ER, decision of 25.02.2010).
The living space requirement for a single person is up to 50 square meters from 01.01.2010, with an additional 15 square meters to be granted for wheelchair users (LSG NRW L 12 B 120/09 SO ER, decision of 24.03.2010).
See also: Accommodation costs in North Rhine-Westphalia: Ministry uses tricks at the expense of those affected.
8. SG Aachen S 6 AS 205/10 ER, decision of 25.02.2010
In North Rhine-Westphalia, up to 50 square meters of living space is considered appropriate for a single person within the meaning of Section 22 of the German Social Code, Book II (SGB II).
Quote: "What expenses are reasonable in a given case is calculated by multiplying the abstractly reasonable apartment size for the benefit recipient by the reasonable rent per square meter according to local conditions (so-called "product theory," cf. Federal Social Court [BSG], judgment of November 7, 2006, B 7b AS 18/06 R; Higher Social Court [LSG] of North Rhine-Westphalia, decision of August 1, 2005, L 19 B 21/05). To determine the reasonable living space, the living space recognized in the state regulations on living space size in social housing must be used as a guideline (cf. BSG, ibid.). In North Rhine-Westphalia, these regulations underwent a fundamental change on January 1, 2010." Until December 31, 2009, according to No. 5.71 of the circular issued by the Ministry for Urban Development and Housing, Culture and Sport on Section 27 Paragraph 4 of the Law on Social Housing Promotion of March 8, 2002 (VV-Wobind, SMBI.NRW. 238), an apartment size of 45 m2 was appropriate for a single person. This administrative regulation has now been superseded by the housing use regulations (WNB, decree of the Ministry of Construction and Transport of December 12, 2009, MBI. NRW 2010, pp. 6 ff.) issued on the basis of the new Law on the Promotion and Use of Housing for the State of North Rhine-Westphalia (WFNG NRW) of December 8, 2009 (GV. NRW p. 772) (see No. 19 para. 2 of these administrative regulations). According to No. 8.2 lit. a) of these administrative regulations, 50 m² of living space is considered appropriate for a single person within the meaning of Section 18 para. 2 WFNG NRW.
On the other hand, Annex 1, No. 1.4.1 of the Housing Promotion Regulations (WFB, Decree of the Ministry of Construction and Transport of 26.01.2006, last amended by Decree of 28.01.2010) provides for a maximum living area of 47 m2 for rental apartments consisting of one room, kitchen and ancillary rooms.
However, systematic considerations support the application of Section 8.2 of the Housing Eligibility Regulations (WNB) over Section 1.4.1 of Annex 1 of the Housing Eligibility Regulations (WFB). Apart from the fact that the WNB have replaced the previously undisputed Administrative Regulations on Housing Allocation (VV-WoBindG) (see Section 19 Paragraph 2 WNB), Section 5.71 of the VV-WoBindG was a specification of Section 27 Paragraph 4 of the Housing Promotion Act (WoFG), which regulated the relevant apartment size to be stated on the housing entitlement certificate for the applicant. Following the enactment of the Housing Promotion Act of North Rhine-Westphalia (WFNG NRW), this function has now been assumed by Section 18 Paragraph 2 WFNG NRW, which also refers to the relevant apartment size to be stated on the housing entitlement certificate for the applicant. Consequently, in accordance with the administrative regulations pertaining to this provision (Section 8.2 WNB), a suitable living space of up to 50 m² is assumed for a single person. Furthermore, Annex 1 No. 1.4.1 of the WFB contains no statement on the number of people seeking housing, but only makes a classification based on the number of rooms
Author's note: With the entry into force of the new North Rhine-Westphalia Housing Promotion and Utilization Act (WFNG), the state of North Rhine-Westphalia has repealed the federal Housing Promotion Act (WoFG). New administrative regulations were also issued for the new state law. The administrative regulations governing housing costs and the issuance of a housing entitlement certificate were amended, as were the previous standard living space allowances. Accordingly, 50 m² is now considered an appropriate living space for one person, with an additional 15 m² for each additional person.
In the meantime, the Ministry of Labor, Health and Social Affairs (MAGS) in North Rhine-Westphalia has issued a new edition of its guidance document on housing costs. MAGS maintains that the applicable size limits are now 47 m² plus 15 m² for each additional person (see guidance document: Housing and Heating Costs pursuant to Section 22 of the German Social Code, Book II, 4th edition, dated March 1, 2010, p. 15).
The SGB II benefit providers feel bound by this directive (Social Court Duisburg S 5 AS 1118/10 ER 06.04.2010, decision).
9. SG Karlsruhe Judgment of 26.3.2010, S 17 AS 1435/09
Generally, landlords cannot be required to reclaim costs for accommodation and heating that were wrongly paid, even if the payment was made directly to the landlord. Section 53 Paragraph 6 of the German Social Code, Book I (SGB I) only provides a suitable legal basis for holding the landlord jointly and severally liable if an assignment agreement or a pledge has been concluded between the landlord and the person receiving assistance. A declaration of consent by the person receiving assistance to the benefits agency authorizing payment to the landlord is insufficient for this purpose.
10. Cologne Social Court S 29 AS 16/08 02.03.2010, Judgment
Whether the repayment installments for owner-occupied homes of Hartz IV recipients should be taken into account is unclear according to the wording of the law. The legislative materials for Section 22 of the German Social Code, Book II (SGB II) also make no statement on this matter (see Bundestag printed matter 15/1516, p. 57).
The assumption of loan repayment installments under Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II) is only possible under the following three conditions:
First, it is necessary that the costs in the form of loan repayments for maintaining home ownership are unavoidable. This is only the case if the person in need of assistance does everything possible to keep their repayment obligations as low as possible while receiving basic income support before claiming state benefits.
Secondly, the owner-occupied residential property must already be largely financed and paid off, and therefore the assumption of the repayment installment by the basic income support provider must primarily serve not the accumulation, but the maintenance of existing assets (cf. Bavarian State Social Court, decision of 10 October 2008, file no.: L 16b 449/08 AS ER; cf. also Groth, in: JurisPR – SozR 4/2009 note 1).
Thirdly, financing costs, including repayments, can only be covered by the basic income support provider up to the amount that it would also have to bear as accommodation costs for a suitable rented apartment (see BSG, judgment of 18.06.2008, file no.: B 14/11b AS 67/06 R).
Author's note: Firstly, it is necessary that the costs in the form of loan repayments for maintaining home ownership are unavoidable. Therefore, before claiming state benefits, the person in need must do everything possible to keep their repayment obligations as low as possible while receiving basic income support. Secondly, financing costs, including loan repayments, can only be covered by the basic income support provider up to the amount they would also have to pay for suitable rental housing (cf. regarding interest on debt, Federal Social Court, judgment of April 15, 2008 – B 14/7b AS 34/06 R –). Since these are actual housing costs, there is no scope for granting a loan under the German Social Code, Book II (SGB II). If the unavoidable repayment exceeds the reasonable costs of a rental apartment, a loan could also be considered (Berlin-Brandenburg State Social Court L 32 AS 412/08, judgment of 25.09.2009).
11. Social Court Detmold S 18 (22) AS 21/09 10.02.2010, Judgment
The information regarding the legal consequences must be specific, understandable, correct, and complete, in accordance with the principles developed for the various grounds for benefit suspension (Federal Social Court [BSG], Judgment of December 16, 2008, B 4 AS 60/07 R). Only such information can fulfill its purpose—namely, its warning and regulatory function. Against this background, it is particularly necessary that the information be applied specifically to each individual case. It is not sufficient, on the other hand, to simply provide the employable person in need of assistance with an information sheet from which they must independently determine the relevant conditions and legal consequences for their case (BSG, ibid.; similarly, Social Court [SG] Dortmund, Decision of January 5, 2010, S 22 AS 369/09 ER and Judgment of March 3, 2009, S 31 AS 317/07).
The application of the rounding rule is likely inadmissible in this context, since Section 41 Paragraph 2 of the German Social Code, Book II (SGB II) only provides for rounding of the final amounts (LSG NRW, decision of October 30, 2009, L 20 B 135/09 AS; contra LSG Sachsen-Anhalt, judgment of June 18, 2009, L 5 AS 79/08).
Due to the incorrect legal consequences information, it was particularly unclear whether, within the framework of the German Social Code, Book II (SGB II), the job placement offers always require that information on the expected wage be provided (cf. Niesel SGB III, § 144 Rdnr. 63).
12. Social Court Berlin S 128 AS 8464/10 ER 25.03.2010, Decision
Cooperative shares constitute housing procurement costs within the meaning of Section 22 Paragraph 3 Sentence 1 of the German Social Code, Book II (SGB II), whereby, within the framework of Section 22 Paragraph 3 Sentence 1 SGB II, prior assurance is a prerequisite for the assumption of housing procurement costs, so that even in expedited proceedings, in the absence of this assurance, only an obligation to issue the assurance pursuant to Section 22 Paragraph 3 Sentence 2 SGB II, but not an obligation to assume the housing procurement costs, is conceivable.
For the assessment of the appropriateness of the accommodation costs of the new apartment, heating costs are not relevant within the framework of Section 22 Paragraph 2 Sentence 2 SGB 2.
12. 1 – Social Court Berlin S 128 AS 9212/09 25.03.2010, Judgment
According to the case law of the Federal Social Court, the standard allowance includes the costs for hot water preparation. However, it does not include other costs associated with the hot water supply, namely the rental service fees for hot and cold water meters, the rental service fee for heat cost allocators, pump maintenance, customer service fees, and the costs for cold water and wastewater (see also the ruling of the Higher Social Court of Saxony, judgment of January 15, 2009 – L 3 AS 29/08 – appeal pending under B 14 AS 86/09 R). The reasonably detailed heating and operating cost statement does not definitively reveal the specific costs incurred for hot water preparation, i.e., the household energy costs for heating the water (cf. SG Dresden, judgment of September 2, 2009 – S 34 AS 634/08 -), therefore the eligibility for reimbursement of the costs incurred for hot water cannot be categorically rejected on the grounds that they are not heating or operating costs.
If a social security provider under Book II of the German Social Code (SGB II) covers the actual monthly – possibly unreasonable – accommodation and heating costs, it must, in principle, also cover the costs resulting from a subsequent demand for heating and operating costs for this period, even if these costs only became due at a time when the unreasonableness of the apartment may have become apparent (following the ruling of the Berlin-Brandenburg Higher Social Court, judgment of December 28, 2009 – L 32 AS 1592/09 – appeal pending under B 14 AS 12/10 R).
However, this does not mean that no reimbursement of operating costs can be claimed for the period during which only the supposedly reasonable accommodation and heating costs were covered. In this respect, the social security provider (SGB II) must proportionally cover the claim from the heating and operating cost statement to the extent that it provided the accommodation and heating costs.
www.sozialgerichtsbarkeit.de
Author's note: If utility bills include significant hot water costs, these costs are not considered costs for accommodation and heating within the meaning of Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), but rather household energy costs within the meaning of Section 20 Paragraph 1 SGB II, which are to be covered by the standard benefit payment, which cannot be increased (see Section 3 Paragraph 3 Sentence 2 SGB II) (see Federal Social Court (BSG), judgment of February 27, 2008 – B 14/11b AS 15/07 R – SozR 4-4200 § 22 No. 5). However, it does not follow that a higher amount than that granted above the standard rate should be deducted for hot water (Social Court Berlin S 128 AS 9212/09 25.03.2010, judgment, but see LSG North Rhine-Westphalia, judgment of 22 January 2009 – L 7 AS 44/08- (B 4 AS 28/09 B).
Hot water preparation costs are not considered housing costs under Section 22 Paragraph 1 of the German Social Code, Book II (SGB II), only to the extent that they are already included as a lump sum in the standard benefit rate, even if they are itemized separately and payable to the landlord, but are not calculated based on actual consumption but rather as a fraction of the total consumption according to the living space share (Berlin-Brandenburg State Social Court, L 32 AS 1639/09, December 29, 2009, judgment, appeal pending under B 14 AS 16/10 R).
To date, there is no definitive ruling from the highest court on whether a hot water cost statement prepared in accordance with the German Heating Costs Ordinance (HeizkostenV) constitutes a specific accounting that supersedes the lump sum calculated as part of the standard benefit rate, and what standard then applies to calculating the advance payment during the current billing period. Hot water costs deductible from ALG II benefits cannot be calculated according to the Heating Costs Ordinance (LSG Berlin-Brandenburg, judgment of 26.05.2009, file no. L 14 AS 1830/08, appeal pending under B 14 AS 52/09 R).
For recipients of basic income support under the German Social Code, Book II (SGB II), flat-rate basic costs for hot water calculated based on individual consumption are not to be deducted from housing costs. The Federal Social Court (BSG) ruled in its judgment of February 27, 2008 – B 14/11b AS 15/07 R – that if it is technically possible to specifically record the costs for hot water preparation through the installation of separate meters or other devices, these specific costs must also be deducted from the claimed housing costs pursuant to Section 22 Paragraph 1 Sentence 1 of the SGB II (paragraph 27). However, it does not necessarily follow that, in addition to the individually recorded consumption, the basic costs, which according to the aforementioned heating and hot water cost statement amount to 30% of the total hot water costs and are not individually recorded via separate meters or other devices, may be deducted as concrete hot water preparation costs within the meaning of the aforementioned case law (LSG Berlin-Brandenburg, decision of 30.03.2009, file no. L 25 B 2135/08 AS PKH).
An operating cost statement cannot be rejected outright (SG Dresden S 34 AS 634/08, judgment of 02.09.2009). Regarding the basic costs for hot water, it must be verified whether these do not include costs for hot water meters, rental service fees, heat cost allocators, pump maintenance, customer service fees, and, above all, the costs for the water (cold water) itself; the job center may only deduct a so-called hot water flat rate.
The legal question of under what specific conditions, when calculating claims for benefits to secure subsistence under the German Social Code, Book II (SGB II), specific costs are to be deducted from the actual expenses for accommodation and heating, which include the expenses for hot water preparation, instead of a flat rate for the costs of hot water preparation, and whether the deduction of a portion of the advance payments for operating costs attributable to hot water preparation is permissible in this respect, requires clarification and has not yet been sufficiently clarified in case law (Social Court Berlin S 26 AS 19501/08 27.03.2009, judgment).
Whether advance payments demanded by the landlord for the expected hot water preparation costs can be deducted from the benefits for accommodation and heating within the meaning of Section 22 Paragraph 1 Sentence 1 of the Second Book of the Social Code (SGB II), and whether in this case such costs are also deductible which are not only based on individual consumption recording but also on a partial allocation of the total expected hot water preparation costs, is fundamentally a matter requiring clarification (Berlin-Brandenburg State Social Court L 25 B 2322/08 AS NZB 29.04.2009 legally binding, decision).
The extent to which costs for hot water must be borne by a person in need of assistance from their standard benefit under Section 20 of the German Social Code, Book II (SGB II), when on the one hand their consumption is recorded by meters installed in the apartment, but on the other hand the specific costs for hot water are not solely based on consumption, but – as in this case – also on the size of the apartment, has not been conclusively clarified by the highest court (LSG Rheinland-Pfalz L 3 B 480/08 AS, decision of 05.05.2009).
13. Note on: Federal Social Court (BSG), 8th Senate, Judgment of 29 September 2009 – B 8 SO 23/08 R –, author Marko Oldenburger, jurisPR-FamR 8/2010 Note 1
Quote:
2. The need under social welfare law is not the funeral itself, but rather relief from the costs required for it.
3. Doubts about the enforceability of civil law claims for reimbursement against third parties do not justify the refusal to cover costs; such a procedure is generally not reasonable within the meaning of Section 74 of the German Social Code, Book XII (SGB XII).
14. Neue Justiz Issue 4 / 2010
www.neue-justiz.de (pdf)
Note: Notable judgments from 2009 are announced and explained here.
15. Relevant topics from the German Social Code, Book II (SGB II) – appeals pending before the Federal Social Court (BSG)
Tax-free night shift allowances are earmarked income within the meaning of Section 11 Paragraph 3 No. 1a SGB II.
State Social Court of North Rhine-Westphalia L 7 AS 81/09 27.01.2010, Judgment, Appeal against this pending under B 14 AS 45/10 R.
LSG Saxony, judgment of 29.10.2009, file no. L 2 AS 99/08, appeal against this judgment pending under B 4 AS 90/09 R.
LSG Saxony, judgment of 29.10.2009, file no. L 2 AS 100/08, appeal against this judgment pending under B 4 AS 89/09 R.
LSG Saxony, judgment of 29.10.2009, file no. L 2 AS 101/08, appeal against this judgment pending under B 4 AS 91/09 R.
Hartz IV benefits are not granted for periods prior to application – this applies after the expiry of an approval period – even if there is a need.
Hessian State Social Court L 7 AS 413/09 18.12.2009, Judgment, Appeal against this pending under B 4 AS 29/10 R.
The relocation within the meaning of Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II) is generally effected upon conclusion of the lease agreement. This exposes recipients of benefits under the SGB II to serious rent demands (see Federal Social Court (BSG), judgment of September 22, 2009, B 4 AS 8/09 R, with further references). Section 22 Paragraph 1 Sentence 2 of the SGB II is not applicable because the need for assistance ceases due to temporary employment.
State Social Court of Mecklenburg-Vorpommern, 8th Senate, judgment of 03.12.2009, L 8 AS 29/09, appeal against this judgment pending under B 4 AS 10/10 R.
The granting of a commitment to cover the costs of new accommodation pursuant to Section 22 Paragraph 1 Sentence 12 of the German Social Code, Book II (SGB II), requires the submission of a concrete rental agreement offer for a specific apartment with a specified rent. The basic income support provider is not obligated to determine the necessity of moving out in the abstract.
LSG Baden-Württemberg judgment of 16.6.2009, L 13 AS 3036/07, appeal against this is pending under B 14 AS 5/10 R.
Additional payments for operating costs relating to a period in which the benefit provider also had to cover unreasonable costs within the meaning of Section 22 Paragraph 1 of the German Social Code, Book II (SGB II), are considered costs of accommodation under Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), even if the ongoing costs can no longer be fully borne.
Berlin-Brandenburg State Social Court L 32 AS 1592/09 28.12.2009, Decision, Appeal against this pending under B 14 AS 12/10 R.
Loan repayments for a rental deposit may not be deducted from Hartz IV benefits. The withholding of monthly loan repayments for a rental deposit cannot be based on Sections 23 and 43 of the German Social Code, Book II (SGB II). Sections 51 and 54 of the German Social Code, Book I (SGB I) only permit offsetting to the extent that the benefit recipient's claims are subject to garnishment.
Schleswig-Holstein State Social Court L 6 AS 24/09 25.11.2009, Judgment, Appeal against this pending under B 14 AS 26/10 R.
16. Notable commentaries from the German Social Code, Book II (SGB II), with references
earmarked income
The purpose of Section 11 Paragraph 3 Number 1 Letter a of the German Social Code, Book II (SGB II) is, on the one hand, to prevent the specific purpose of a benefit from being undermined by its consideration within the framework of the SGB II, and on the other hand, to avoid duplicate benefits for an identical purpose (Federal Social Court [BSG], Judgment of December 6, 2007 – B 14/7b AS 62/06 R – Paragraph 24). The specific purpose can arise from a public law provision (cf. BSG, Judgment of December 6, 2007 – B 14/7b AS 16/06 R – BSGE 99, 240 = SozR 4-4200 § 11 No. 8, each paragraph 16), but also from a private law basis (BSG, Judgment of March 3, 2009 – B 4 AS 47/08 R – Paragraph 20). The latter follows from the broad wording of Section 11 Paragraph 3 No. 1 Letter a of the German Social Code, Book II (SGB II), which differs in this respect from the similar provision in social assistance law, which, according to Section 83 Paragraph 1 of the German Social Code, Book XII (SGB XII), requires a purpose expressly stated in public law regulations (see Federal Social Court (BSG), judgment of December 6, 2007 – B 14/7b AS 16/06 R – BSGE 99, 240 = SozR 4-4200 § 11 No. 8, each paragraph 16).
A benefit provided on a private-law basis is considered earmarked within the meaning of Section 11 Paragraph 3 Number 1 Letter a of the German Social Code, Book II (SGB II), if, beyond the repayment designation, a specific purpose is recognizably assigned to it. The deciding panel understands this, in accordance with the 4th Senate of the Federal Social Court (BSG), as an agreement from which it is objectively evident that the benefit is to be used for a specific purpose (private-law purpose of use; see BSG, Judgment of October 28, 2009, B 14 AS 64/08 R).
Income adjustment – Sick pay –
This income was to be adjusted in accordance with Section 6 Paragraph 1 No. 1 of the Ordinance on the Calculation of Income and the Disregard of Income and Assets for Unemployment Benefit II / Social Assistance (hereinafter: Alg-II VO) by a flat-rate amount for insurance in the amount of EUR 30,- and by the proven contributions to motor vehicle insurance (cf. Brühl, in: Münder, ibid., Social Code Book II, 3rd edition 2009, Section 11 Rn. 40).
Regarding the non-consideration of the 30 euro flat rate for earned income if the basic tax allowance of 100 euros has already been granted.
Because of the basic allowance already taken into account (§ 11 para. 2 sentence 2 SGB II), there is no room for the additional application of the insurance allowance of § 6 para. 1 no. 1 Alg II-V (cf. Hengelhaupt in Hauck/Noftz, SGB II, K § 30 marginal note 50).
Pension due to total incapacity for work is considered income under the German Social Code, Book II (SGB II), for the purpose of adjusting the pension by the 30 euro flat rate and for deducting motor vehicle liability insurance.
According to Section 11 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), income includes receipts in cash or in kind, with the exception of benefits under this book, the basic pension under the Federal War Victims' Relief Act (Bundesversorgungsgesetz) and under laws that provide for the corresponding application of the Federal War Victims' Relief Act, and pensions or allowances paid under the Federal Compensation Act for damage to life, body, or health, up to the amount of the comparable basic pension under the Federal War Victims' Relief Act. This also includes pension payments, without any preferential treatment under Section 11 Paragraph 3 of the SGB II or under Section 1 Paragraph 1 of the Unemployment Benefit II/Social Assistance Ordinance (Alg II-V) (see Federal Social Court (BSG), Judgment of May 16, 2007 – B 11b AS 27/06 R).
The insurance allowance and the motor vehicle insurance must be deducted from the pension income (see also LSG Berlin-Brandenburg, judgment of 25 September 2009 – L 32 AS 412/08).
Regarding the forwarding of child benefit for adult children.
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).
