According to the judgment of the Federal Constitutional Court of February 9, 2010 (1 BvL 1/09; 1 BvL 3/09; 1 BvL 4/09), it follows from Article 1 Paragraph 1 GG in conjunction with Article 20 Paragraph 1 GG - until the creation of a corresponding regulation by the legislature - that there is a direct entitlement to benefits to ensure a humane minimum subsistence level in the event of unavoidable, ongoing, not just one-off, special needs.
The claim does not exist for the past, but only for the period from the announcement of the judgment on February 9, 2010, as the BVerfG once again expressly made clear in another decision (resolution of March 24, 2010 - 1 BvR 395/09-).
First decisions based on the hardship regulation of the Federal Constitutional Court's ruling of February 9, 2010 (1 BvL 1/09; 1 BvL 3/09; 1 BvL 4/09)
SG Chemnitz, resolution of March 9, 2010, S 3 AS 462/10 ER –
Amounts for private health and nursing care insurance for privately insured people that are not covered by the SGB II provider must be covered in full due to the BVerfG ruling of February 9, 2010 (ref.: 1 BvL 1/09).
SG Berlin -S 174 AS 7801/10 ER- Decision of March 15, 2010
A recipient of unemployment benefit II is not entitled to a subsidy for the purchase of a new refrigerator due to the hardship regulation derived from the BVerfG (BVerfG, judgment of February 9, 2010, 1 BvL 1/09), because a defective refrigerator is not one ongoing, but only a one-off need. The applicant would have had to save for the replacement from the standard benefit.
SG Berlin – S 147 AS 6183/10 ER – Resolution of March 4, 2010
There is no hardship entitlement to cover repayments for an owner-occupied condominium purchased on credit. The humane minimum subsistence level is not affected. The constitution does not provide any right to build up wealth at the expense of the general public. The assumption of the repayment installments for his owner-occupied residential property can only be assigned to the costs of accommodation and heating, so that no claim can arise directly from Article 1 Paragraph 1 GG in conjunction with Article 20 Paragraph 1 GG, if after that The hardship regulation only applies to an ongoing, unavoidable need that is intended exclusively to supplement the benefits to secure a living within the meaning of Sections 20 and 28 SGB II.
SG Berlin - S 39 AS 9775/10 ER - dated - decision of April 14, 2010
Hartz IV recipients have to pay for their daycare trip themselves. There is no legal basis for a subsidy from the job center - unlike for school trips lasting several days within the framework of the school law provisions in Section 23 Paragraph 3 No. 3 SGB II. Kindergarten trips are not covered by the law. There is also no entitlement based on the BVerfG's case law on hardship cases, because it is not an ongoing special need, but a one-off one. A loan is not an option because the amount can be raised by reallocating the benefits already provided. The trip could have been saved for, especially since it had been planned for a year.
SG Berlin – S 110 AS 7262/10 ER –
Due to the hardship regulation derived from the BVerfG (BVerfG, judgment of February 9, 2010, 1 BvL 1/09), Hartz IV recipients are entitled to reimbursement of costs for exercising access rights with separated children.
The job center has recognized a hardship claim to reimbursement of costs for exercising access rights to a separated daughter during the course of the court proceedings. This is an ongoing, special need that is protected by fundamental rights (Art. 6 GG – Family). The applicant, who lives in Berlin, requested 4 x 94 euros for train travel costs in order to be able to pick up and bring back his 13-year-old daughter, who lives with her mother in Schleswig-Holstein, during the Easter holidays.
2. L 13 AS 224 / 09 NZB, decision of April 12, 2010
The complaint against non-admission is allowed because the highest court has not yet decided on the question of whether the costs of school materials for the 2007/2008 school year were to be covered as atypical needs in accordance with Section 73 SGB XII.
The complaint against non-admission is allowed because the question of whether the need for the procurement of school materials for children to the usual extent arises can be qualified as an atypical need within the meaning of Section 73 SGB - L 13 AS 26/07 NZB and Fahlbusch, Juris PR - SozR 8/2009, note 2, a supreme court clarification has not yet been made (which relates to the judgment of the LSG Rhineland-Palatinate of November 25, 2008, Ref. - L 3 AS 76/07 – pending revision – B 14 AS 47/09 R- has not yet been decided, so this question is fundamentally important.
Source: Lawyer A. Kroll from Oldenburg
3. Hessian State Social Court L 7 AS 90/10 B ER April 6, 2010, decision
Compensation for gains received during the ongoing receipt of benefits according to SGB II is creditable income, because income within the meaning of Section 11 Paragraph 1 SGB II is basically everything that someone receives in terms of value after submitting the application, and assets are what they already had before submitting the application ( BSG, judgment of July 30, 2008 - B 14 AS 26/07 R - SozR 4-4200 § 11 No. 17).
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Note: Berlin Social Court S 128 AS 25352/07 January 28, 2010, judgment
The payments from compensation for gains amounting to EUR 500 per month are not income within the meaning of Section 11 SGB II but rather assets (see already for the unemployment benefit BSG, judgment of June 8, 1989 - 7 RAr 34/88 - SozR 4100 § 138 No. 25), even if they were received after the application for ALG II (a. A. BSG, judgment of September 30, 2008 (B 4 AS 29/07 R - SozR 4-4200 § 11 No. 15).
Not only in the judgment of June 8, 1989 already quoted, but also in other respects, it was always recognized in the case law of the Federal Social Court that if assets are realized through sale - i.e. redeployed - when (or after) the application is submitted, not by one "Inflow of income" can be assumed and therefore what is received is not to be taken into account as income (cf. BSG, judgment of June 20, 1978 - 7 RAr 47/77 - SozR 4100 § 138 No. 3; cf. also decision of the chamber of June 14 December 2009 - S 128 AS 38212/09 ER -).
If installment payments made on several due dates do not increase the assets, but rather redeploy them (cf. Hengelhaupt in Hauck/Noftz, K § 12, Rn. 96; Brühl in LPK-SGB II, § 11, Rn. 15 ff.), it is not Eligible income within the meaning of Section 11 SGB II.
The additional maintenance payment of EUR 900 in three installments does not represent income, but rather reallocates the assets, because your claim is converted into money (a. A. SG Speyer, decision of June 1, 2006 - S 1 ER 161/ 06 AS -).
SG Karlsruhe decision of February 25, 2010, S 16 AS 2693/09
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4th State Social Court of North Rhine-Westphalia L 7 AS 519/10 B April 15, 2010 legally binding; decision
Legal aid is to be granted for the question of whether a single person from January 1, 2010 according to Sections 18, 44 Paragraph 1, 45 WFNG NW Number 8.2. of the living space usage regulations (WNB) NW are now entitled to 50 instead of 45 sqm of living space or whether the regulations of the housing subsidy regulations issued on January 28, 2010 are relevant, which stipulate an upper living space limit of 47 sqm for one person (see working aid: Costs of accommodation, published by the ministry for work, health and social affairs of the state of North Rhine-Westphalia, 4th edition 2010, p. 16 fmwN)
4.1 – State Social Court of North Rhine-Westphalia L 7 AS 340/10 B ER, L 7 AS 341/10 B, decisions of April 15, 2010, legally binding
Storage costs can be accommodation costs within the meaning of Section 22 Paragraph 1 SGB II (BSG, dated December 16, 2008, Ref. B 4 AS 1/08 R).
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Note: According to the case law of the Federal Social Court (judgment of April 16, 2008 - B 4 AS 1/08 R -), there may in principle be a claim to accommodation-related benefits in accordance with Section 22 SGB II for renting additional storage space if the living space is so small, that it is necessary to adequately accommodate the personal belongings of the person in need of assistance. However, the granting of basic security benefits for the rental of storage space requires that the accommodation costs, including the costs for renting this storage space, are appropriate.
Regarding the non-coverage of storage costs in the event of unreasonable accommodation costs (see State Social Court of North Rhine-Westphalia L 19 B 275/09 AS ER, decision of October 8, 2009, legally binding).
For the storage of items and furniture required for work, Section 16 Paragraph 2 Sentence 1 SGB II comes into consideration.
According to this, additional services can be provided in addition to those mentioned in Section 16 Paragraph 1 SGB II that are necessary for the integration of the employable person in need of help into working life. This includes not only the services listed in Section 16 Paragraph 2 Sentence 1 SGB II. Rather, Section 16 Paragraph 2 Sentence 1 SGB II contains a general clause for additional integration services of all kinds (judgment of the BSG of November 23, 2006 - B 11 b AS 3/05 R - mwN). The provision of services according to this is fundamentally at the discretion of the administration, which can already be deduced from the wording of the regulation and, as far as can be seen, corresponds to a uniform opinion (cf. Eicher/Spellbrink, SGB II, 2nd edition § 16 Rn. 61) .
5. Saxon LSG – L 2 AS 248/09 – judgment of April 8, 2010, appeal admitted to the BSG
Cash gifts for Christmas and birthdays are income under SGB II.
Cash gifts to recipients of unemployment benefit II are only exempt from deductions up to an amount of €50 per year, because Section 1 Paragraph 1 No. 1 ALG II-V does not contain any tax-free allowance regulations (cf. LSG Baden-Württemberg (judgment of October 26, 2007 - L 8 AS 1219/07 - Paragraph 33; hereinafter BSG, judgment of September 30, 2008 - B 4 AS 57/07 R -; see also LSG Baden-Württemberg, decision of February 21, 2007 - L 7 AS 690/07 ER-B as well LSG Rhineland-Palatinate, judgment of April 25, 2008 - L 3 AS 6/07 -).
This is clear from the wording of the standard, which excludes amounts if they do not exceed EUR 50.00 per year. If the legislature had wanted to set an exemption limit, instead of the term if, the term if would have been expected, as the legislature formulated in the version of Section 1 Paragraph 1 No. 12 ALG II-V that has been in force since January 1, 2009.
The regulation of § 1 Para. 1 No. 12 ALG II-V, which was included in the ALG II-V with effect from January 1, 2009, by ordinance of December 18, 2008 (BGBl. I p. 2780) with effect from January 1, 2009, also offers an interpretation aid. According to this, financial gifts to minors on the occasion of confirmation, communion, confirmation or comparable religious celebrations as well as on the occasion of the youth consecration, as long as they do not exceed the amount specified in Section 12 Paragraph 2 Sentence 1 Number 1a of the SGB II, are not to be taken into account as income. This exception is limited to donations on the occasion of confirmation, communion and confirmation or comparable religious celebrations, ie celebrations on the occasion of which someone is accepted into the community of believers or adults. Birthdays and Christmas are not such celebrations.
An appeal was allowed because the Federal Social Court had already indirectly decided in its judgment of September 30, 2008 - B 4 AS 57/07 R - that Section 1 Paragraph 1 No. 1 ALG II-V does not contain any tax-free allowance regulation. As far as can be seen, there is - as far as can be seen - neither a decision by the Federal Social Court nor a state social court on the other, crucial question here, whether cash gifts for birthdays or Christmas represent earmarked income. This question goes far beyond the individual case and concerns a frequently recurring issue. It is therefore of a fundamental nature. The SG Reutlingen - unlike the SG Leipzig in the contested judgment - viewed gifts at Christmas as income to be taken into account within the meaning of Section 11 Paragraph 1 Sentence 1 SGB II (judgment of April 24, 2007 - S 2 AS 4151/06 – paragraph 22).
5.1 – Saxon State Social Court L 2 AS 711/09 B ER December 22, 2009, decision
With the imminent birth of another child, a combination of poor living conditions such as the apartment that can only be heated with stoves, the bathroom that cannot be heated, dampness resulting in mold growth and the high noise level make a move necessary and necessary.
6. Berlin-Brandenburg State Social Court L 28 AS 2089/09 B ER February 12, 2010 legally binding, decision
The sanction mechanism of Section 31 SGB II presupposes that the employable person in need of assistance is offered a sufficiently specific job opportunity.
Adverse conclusions can only be drawn from the behavior of the service recipient if the service provider has precisely described the offer in question. This requires that the type of work, its time scope and distribution as well as the amount of appropriate compensation for additional expenses must be determined in detail (BSG, judgment of December 16, 2008 - B 4 AS 60/07 R - Rn. 31 /32).
If a benefit recipient is under 25 years of age, individual instructions are required regarding the complete loss of standard benefits. In this respect, it is clarified that a concrete implementation of the legal consequences instruction is necessary for each individual case and it is not enough to provide the employable person in need of assistance with an information sheet from which they must independently determine the requirements and legal consequences relevant to their case (BSG, ibid 36).
A sanction notice is entirely unlawful if the service provider did not provide the recipient with benefits in kind or in kind during the sanction period (LSG Berlin, decision of December 16, 2008 - L 10 B 2154/08 AS ER -).
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Note: In any case, in cases in which one or more sanctions result in a predominant part of the standard benefit being lost for the benefit period, the discretion granted to the service provider in accordance with Section 31 Paragraph 3 Sentence 6 SGB II is reduced to the extent that he also has to decide on the supplementary benefits at the same time as the sanction decision (Kassel Social Court -S 6 AS 373/09 ER - from January 21st, 2010, decision, different opinion from Duisburg Social Court - S 31 AS 317/09 ER- from September 22nd, 2009, according to which the lack of a decision on the granting of additional benefits in the event of sanctioning breaches of duty up to and including the discontinuation of benefits does not lead to the sanction decision being illegal.
6.1 – Berlin-Brandenburg State Social Court L 19 AS 129/10 B ER February 23, 2010 legally binding, decision
The service provider can only provide assurances about the expenses for new accommodation if moving is necessary and the expenses for the new accommodation are reasonable.
The provisional regulation on the assurance regarding the expenses is also not to be provided as a result of a consideration of the consequences (see BVerfG, decision of May 12, 2005, 1 BvR 569/05). In particular, the applicants' fundamental rights protected positions are not violated. The applicant did, of her own free will, terminate her previous apartment on January 31, 2010. However, the applicants are currently neither at risk of homelessness nor are they at risk of being evicted from their previous apartment (see on this criterion LSG Berlin-Brandenburg, decision of April 26, 2007, L 18 B 608/07 AS ER-, LSG Nordrhein-Westfalen, decision of September 14, 2007, L 7 B 119/07 AS ER). The applicants are also free to rent the unsuitable apartment on Estrasse and to cover the non-covered personal contribution to the KdU from the standard rate or, if applicable, other income (here in the case of blind benefit) or (protective) assets.
6.2 – Berlin-Brandenburg State Social Court L 19 AS 151/10 B ER February 25, 2010 legally binding, decision
The concept of housing acquisition and moving costs within the meaning of Section 22 Paragraph 3 Sentence 1 SGB II is to be interpreted broadly, although the fees of a broker - where appropriate - are also to be understood as being included (cf. Bayerisches LSG, judgment of July 16, 2009 , L 11 AS 144/08, with reference to Lang/Link in Eicher/Spellbrink, SGB II, 2nd edition, § 22 Rn. 83).
There is no need for legal protection for an abstract examination of an assurance that the expenses or accommodation costs for any desired apartment will be covered in the interim legal protection proceedings, because the examination of whether there is a claim to an assurance in accordance with Section 22 Paragraph 2 Sentence 1 SGB II can only ever be carried out for a specific apartment can be made on the basis of a current housing offer (cf. LSG Berlin-Brandenburg, decision of August 26, 2009, L 5 AS 1273/09 B ER, mwN). Nothing else can apply to an assurance in accordance with Section 22 Paragraph 3 Sentence 1 SGB II. When examining whether an assurance can be given in accordance with Section 22 Paragraph 3 Sentence 1 SGB II, the unwritten prerequisite must also be that the costs incurred are appropriate (cf. Lang/Link in Eicher/Spellbrink, SGB II, 2. Edition, § 22 Rn. 82). However, the appropriateness of the costs of accommodation and heating should not be assessed in the abstract, but rather on a case-by-case basis (cf. BSG, judgment of November 7, 2006, B 7b AS 18/06 R = SozR 4-4200 § 22 No. 1).
Note: State Social Court of North Rhine-Westphalia L 19 B 100/08 AS July 21, 2008 legally binding, decision
The prerequisite for a claim to the assumption of housing procurement costs according to Section 22 Paragraph 3 Sentence 1 SGB II is, among other things, that before the time at which the housing procurement costs are justified in a legally relevant manner, the service provider guarantees that the costs will be covered (BSG, Judgment of November 7, 2006, B 7b AS 10/06 R, para. 27; Lang/Link in Eicher/Spellbrink, SGB II, 2nd edition, § 22 para. 85). The assurance according to Section 22 Paragraph 3 Sentence 1 SGB II must be in writing in order to be effective according to Section 34 Paragraph 1 Sentence 1 of the Social Code Book Ten (SGB X) (see Lang/Link in Eicher/Spellbrink, SGB II, 2nd ed ., § 22 para. 85).
7. Rhineland-Palatinate State Social Court - L 1 SO 84/09 B ER - from February 12, 2010 legally binding, decision
On the legal ability of a foreign student to work
8th Würzburg Social Court - S 16 AS 450/09 - dated March 29, 2010, judgment
The compensation for work as a city councilor is not completely exempt from consideration within the meaning of Section 11 Paragraph 3 No. 1a SGB II, as it is not entirely earmarked income and it also has such a favorable influence on income that complete exclusion would not be justified .
In the commentary literature on SGB II, the compensation payments for members of municipal representations and committees are generally viewed as earmarked income within the meaning of Section 11 Paragraph 3 No. 1a SGB II (see Eicher/Spellbrink, SGB II, Rn. 39/§ 11; Oesterreicher, SGB II, Rn. 125/§ 11; LPK-SGB II, 3. A, Rn. 66/§ 11). However, according to the commentary in Mergler/Zink (Handbook of Basic Security and Social Assistance Part I: SGB II, Rn. 89/§ 11), this should only apply to non-taxable expense allowances. Furthermore, the restriction is made that these should only be intended for a specific purpose within the meaning of Section 11 Paragraph 3 No. 1a SGB II to the extent that they are granted for the actual expenses of public offices.
9. Landshut Social Court S 7 AS 127/10 ER March 17, 2010, decision
Benefits under ALG II may not be denied to a person in need of assistance due to a lack of cooperation if it is unreasonable for the benefit recipient to present the landlord with appropriate proof of income and assets; the request for these documents concerns a third person who is not involved in the social benefit relationship.
10. Potsdam Social Court - S 39 AS 3620/08 - from February 4th, 2010
The additional meal expenses granted by the employer for a long-distance driver in need of assistance does not increase his creditable income according to SGB II, because expenses fall under the regulation of Section 11 Paragraph 3 No. 1 a SGB II (LSG Mecklenburg-Western Pomerania ; resolution of June 29, 2007, no .: L 8 B 229/06).
Note: Resolution of the SG Chemnitz dated January 15, 2010 Ref.: S 26 AS 7050/09 ER
The additional benefits provided by employers in the construction industry, such as bonuses, are earmarked income.
SG Chemnitz- S 6 AS 2054/09 – from February 10, 2010, judgment
Expenses for long-distance drivers cannot be credited towards Hartz IV.
11. Social Court Detmold - S 18 (24) AS 88/08 - Judgment of December 16, 2009, pending at the LSG NRW under the case number L 1 AS 211/10
Loan installments for rental deposits or cooperative shares may not be deducted from Hartz IV benefits.
Loan installments for rental deposits or cooperative shares may not be deducted from Hartz IV benefits. The retention of monthly loan repayment installments for cooperative shares cannot be based on Section 23 Paragraph 1 Sentence 3 SGB II, because the loan in question here according to Section 22 Paragraph 3 SGB II does not relate to any requirement covered by the standard benefit within the meaning of Section 20 SGB II, but is one of the services for accommodation and heating regulated in Section 22 SGB II. Due to the express regulation in Section 22 Paragraph 3 Sentence 1 SGB II that a rental deposit can be taken with prior assurance and should be provided as a loan in accordance with Section 22 Paragraph 3 Sentence 3 SGB II, there is no doubt at all that the need arising from a rental deposit for a recipient of assistance is not covered by the standard benefit, but is a need for the costs of accommodation (LSG Hessen, decision of January 29, 2008, L 9 AS 421/07 ER; Frank in: Hohm, GK- SGB II, § 22 Rn. 67).
According to Section 46 Paragraph 1 of SGB I, claims to social benefits can be waived by making a written declaration to the service provider; the waiver can be revoked at any time with future effect. A waiver is not only possible as a whole, but can also take place partially, because a partial waiver is necessarily included in a complete waiver. All that is required is the ability to define the partial waiver (Gutzler in: BeckOK, SGB I, § 46 Rn. 8). A waiver is a unilateral declaration of intent by the benefit recipient; the defendant therefore has no possibility of bindingly regulating a waiver itself through an administrative act (Seewald in: Kassler Commentary, SGB I, § 46 Rn. 12).
12. Note on: LSG Munich 16th Senate, resolution of January 29, 2010 - L 16 AS 27/10 B ER
Subsidy for insurance contributions for private health insurance for recipients of unemployment benefit II
Quote:
Schleswig-Holstein State Social Court - L 9 SO 5/09 - Judgment of December 9, 2009, appeal against this pending under B 8 SO 3/10 R.
14. Noteworthy comments from SGB II with references
1. Dedicated revenue
According to Section 11 Paragraph 3 No. 1 a) SGB II and Section 1 Paragraph 1 No. 2 ALG II Ordinance, earmarked income is not to be taken into account as income. According to this, donations from third parties are not to be taken into account as income if, as earmarked income, they serve a purpose other than benefits under SGB II and do not influence the recipient's situation so favorably that benefits under SGB II would not be justified. A purpose in this sense exists if a service has a specific purpose that is clearly approved by the legislature, which does not consist of making a living, so that it would be missed if the recipient used the service for this purpose via income recognition and would therefore be prevented from using it for its actual purpose (cf. Hengelhaupt, in: HAUCK/NOFTZ, SGB II, 28th supplement 2009, § 11 para. 213 with further references).
The provision of Section 1 Paragraph 1 No. 2 ALG II-V is identical to Section 11 Paragraph 3 No. 1 SGB II and therefore superfluous (Brühl in LPK-SGB II, 3rd edition, Section 11 Rn 77).
2. Sanction notices
According to Section 86a Paragraph 2 No. 4 SGG in conjunction with V. m. § 39 No. 1 SGB II does not have a suspensive effect because such administrative acts reduce basic security benefits for job seekers (Conradis in: Münder (ed.), LPK-SGB II, 3rd A. 2009, § 39 Rn. 5 )
3. Regarding the exclusion of benefits in accordance with Section 7 Paragraph 1 Sentence 2 2nd half sentence SGB II
The exclusion of benefits according to Section 7 Paragraph 1 Sentence 2 Second Half Sentence SGB II applies not only to those who are able to work and need help, but also to (unable to work) relatives of those who are able to work and need help (also Brühl/Schoch in Münder, LPK-SGB II, 3rd edition 2009 , § 7 RdNr 38; A. Loose in Hohm, GK-SGB II, as of November 2009, § 7 RdNr 32.18; Adolph in Linhart/Adolph, SGB II/SGB XII/AsylbLG, as of September 2009, § 7 SGB II RdNr 45 f; Notes from the German Association on dealing with technical questions of SGB II and SGB .
