BSG, judgment of May 6, 2010, – B 14 AS 3/09 R
6-year-old, disabled and chronically ill social benefit recipient has no legal right to have the additional requirement recognized for the mark G (Section 28 Paragraph 1 Sentence 3 No. 4 SGB II), because he is not a person who is not able to work within the meaning of this regulation.
BSG, judgment of May 6, 2010, – B 14 AS 2/09 R
A claim to a compulsory portion is not to be taken into account as an asset if, due to particular hardship, it can be assumed that the surviving parent could only fulfill the claim if the economic burden was unreasonable. In any case, this can be assumed if the economic limits set out in Section 9 Paragraph 5 SGB II in conjunction with Sections 1 Paragraph 2, 4 Paragraph 2 Alg II-V would be exceeded.
BSG, judgment of May 6, 2010, – B 14 AS 7/09 R
Obligation to cover the moving costs for recipients of basic social security only applies to self-organized moves, because when moving within the scope of SGB II, there is an obligation to keep the costs of a move as low as possible. As a rule, this must be carried out independently, if necessary with the help of assistants and rental cars. Only in exceptional cases (age, disability, presence of small children, etc.) is it possible to cover the costs of a professional moving company.
2. Decisions of the Federal Social Court on SGB II of March 22, 2010
BSG, judgment of March 22, 2010, – B 4 AS 69/09 R –
When calculating the amount of the subsidy in accordance with Section 22 Paragraph 7 SGB II, a deduction must be made from the appropriate heating costs for the costs of hot water preparation (see BSG, judgment of February 27, 2008 - B 14/11b AS 15/07 R - BSGE 100, 94 = SozR 4-4200 § 22 No. 5 and of September 22, 2009 - B 4 AS 8/09 R) (a. opinion of Hessisches LSG, decision of March 27, 2009 - L 6 AS 340/08 B ER-).
The amount of the subsidy according to Section 22 Paragraph 7 SGB II is not based solely on the difference between the accommodation costs according to SGB II and the underlying accommodation needs according to SGB III. Rather, the unmet need must be determined according to the provisions of SGB II, taking into account the benefit according to SGB III, including the accommodation needs included there and, if necessary, other income. The subsidy is then to be paid by the basic social security provider in the amount of the resulting unmet need according to SGB II - capped by the difference between the accommodation requirement according to SGB II and the accommodation share included in the training support benefit.
BAB is to be taken into account as income to reduce needs. In contrast to the BAföG benefit, it does not contain any earmarked training-related portion. However, if the vocational training allowance was used to provide training-related services in accordance with Section 67 ff of SGB III (e.g. travel costs), these would have to be excluded from consideration under SGB II as earmarked income.
BSG, judgment of March 22, 2010, – B 4 AS 39/09 R –
cf. parallel decision to the BSG judgment of March 22, 2010 - B 4 AS 69/09 R.-
BSG, judgment of March 22, 2010, – B 4 AS 59/09 R
Disabled people who are able to work and need assistance will only receive the additional allowance due to participation in a measure to obtain a place in working life if the measure is suitable.
The entitlement presupposes participation in a regular, special measure that is generally suitable for triggering additional needs on the part of the person concerned (as already expressly stated in BSGE 101, 79 = SozR 4-3500 § 54 No. 1, in each case No. 22).
This restrictive interpretation follows from the wording and the specific meaning and purpose of the additional requirement, which can be derived from the history of the standard's origins.
www.socialcourtsability.de
3. Berlin-Brandenburg State Social Court L 10 AS 216/10 B ER of March 24, 2010 legally binding, decision
No isolated determination of the necessity of the extract as part of a (temporary) assurance procedure according to Section 22 Paragraph 2 Sentence 2 SGB II.
According to Section 22 Paragraph 2 Sentence 1 of the Second Book of the Social Code (SGB II) in the version applicable here of the law for the further development of basic security for job seekers of July 20, 2006 (BGBl I 1706), the employable person in need of assistance should enter into a contract for new accommodation before concluding Obtain assurance from the local authority that was previously responsible for providing the service regarding the expenses for the new accommodation. The municipal provider is only obliged to provide assurances if the move is necessary and the expenses for the new accommodation are reasonable; The local authority responsible for the location of the new accommodation must be involved (Section 22 Paragraph 2 Sentence 2 SGB II).
For an isolated decision on the necessity of moving out of the previously occupied apartment without naming a target apartment, there is no specific basis for claim within the framework of Section 22 Paragraph 2 Sentence 2 SGB II. A claim to issue a decision bindingly determining the necessity of an extract would contradict the wording and the meaning and purpose of the provision of Section 22 Paragraph 2 Sentence 2 SGB II.
According to the wording, the granting of an assurance within the meaning of this standard requires the submission of a specific rental contract offer for a specific apartment with a quantified rent. According to Section 22 Paragraph 2 Sentence 2 SGB II, the submission of assurances regarding current future expenses expressly concerns “the” new accommodation and depends on the content of the move to this accommodation being necessary and the expenses for “the” new accommodation being appropriate are (LSG Baden-Württemberg, judgment of June 16, 2009 - L 13 AS 3036/07, RdNr 25; LSG Berlin-Brandenburg, decision of April 2, 2009 - L 28 B 2179/08 AS ER, ibid, S 2 and LSG Berlin-Brandenburg, decision of January 16, 2009 - L 5 B 2097/08 AS ER, RdNr 18)
The purpose of the regulation in Section 22 Paragraph 2 Sentence 2 SGB II is to create legal certainty. The aim is to avoid the emergence of a (renewed) emergency situation for the person in need of help as a result of only partially covering the accommodation costs. The municipal authority must also be interested in making a decision about the appropriateness of the accommodation costs before moving, in order to prevent further costs from being incurred as a result of a second move if the new apartment is unsuitable (Krauß in Hauck/Noftz, SGB II, Status: November 2009, RdNo. 102 on K § 22).
This also applies, and in particular, in view of the fact that the sought-after assurance can only ever claim validity depending on the situation.
If, after the submission of an assurance relating solely to moving out, but before moving into a new apartment, changes occur in the staffing level of the community of needs, for example due to the addition of another person, an abstract assurance given of the type requested by the applicants would not apply to them practical use more (cf. LSG Baden-Württemberg, ibid., RdNo. 27).
www.socialcourtsability.de
Note: Berlin-Brandenburg State Social Court L 19 AS 151/10 B ER February 25, 2010 legally binding, decision
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 procedure, 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 one specific apartment 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).
LSG Baden-Württemberg judgment of June 16, 2009, L 13 AS 3036/07
The granting of an assurance regarding the expenses for the new accommodation in accordance with Section 22 Paragraph 1 Sentence 12 SGB II requires that a specific rental contract offer for a specific apartment with a quantified rent is submitted. There is no obligation on the part of the basic security provider to determine in the abstract whether an extract is necessary.
3.1 – Berlin-Brandenburg State Social Court L 10 AS 393/10 B ER March 24, 2010 legally binding, decision
An impending cessation of the gas supply and thus the termination of the regular heating option can in principle represent an emergency situation comparable to the threat to the security of the accommodation, so that gas debts can be taken over as a loan in accordance with Section 22 Paragraph 5 SGB II.
If, in addition to paying off the debts, there are other options available to ensure the gas supply and thus the ability to heat the apartment, there is no threat of an emergency comparable to homelessness (according to sentence 2 of the regulation, they should be taken over if this is justified and necessary and otherwise homelessness threatens to occur ).
1. After the liberalization of the gas market, customers can generally change providers without the previous basic supplier having the opportunity to prevent the transmission due to outstanding debts (see Section 36 of the Electricity and Gas Supply Act in conjunction with Section 6 of the General Ordinance Conditions for the basic supply of household customers and the replacement supply with gas from the low-pressure network, see also Gotzen, assumption of energy cost arrears according to § 34 SGB XII, ZfF 2007, 248).
2. As part of priority self-help, those in need of help must be required to repay their debts, if necessary, by means of an installment payment agreement.
3. Allowances that are not counted towards the ALG II requirement are ready funds that the person in need of assistance must use to repay the gas debts.
Note: Bavarian State Social Court L 11 AS 177/07 September 13, 2007 legally binding (Federal Social Court B 14 AS 163/07 B January 14, 2008)
According to Section 22 Paragraph 5 SGB II, if services for accommodation and heating are provided, debts can also be assumed if this is justified to secure accommodation or to remedy a comparable emergency. They should be taken over if this is justified and necessary and otherwise there is a risk of homelessness. Assets in accordance with Section 12 Paragraph 2 No. 1 (SGB II) must be given priority. Cash benefits should be provided as loans.
In terms of its meaning and purpose, Section 22 Paragraph 5 SGB II only concerns debts that arise from the rental and ownership relationship. General indebtedness is not enough (cf. Schmidt in Oestreicher, SGB XII/SGB II, § 22 SGB II RdNr 141). In this respect, Section 22 Paragraph 5 SGB II represents a special regulation for rent and energy debts (Kalhorn in Hauck/Noftz SGB II § 22 RdNr 72, see also BT-Drs 16/688 S 14), but not a regulation for the assumption of general debts . Rent arrears only represent additional payments for operating costs.
Berlin-Brandenburg State Social Court L 14 AS 748/09 B ER dated June 5, 2009, legally binding, decision
Lüneburg Social Court S 81 AS 311/09 ER March 10, 2009, decision
According to Section 22 Paragraph 5 SGB II, if services for accommodation and heating are provided, debts can also be assumed if this is justified to secure accommodation or to remedy a comparable emergency. According to Section 22 Paragraph 5 Sentence 2 SGB II, they should be taken over regularly if this is justified and necessary and otherwise there is a risk of homelessness. This also includes the assumption of energy cost arrears (cf. Berlit in LPK - SGB II, paragraph 116 on § 22). The circumstances to be taken into account when making the discretionary decision within the framework of a comprehensive overall view of the circumstances of the individual case, such as the amount of residues, their causes, the composition of the group of people threatened by the possible energy cut-off and the possibilities and reasonableness of an alternative energy supply, the behavior shown in the past , in particular efforts to restrict or appropriately adapt consumption behavior and a desire for self-help (cf. Berlit LPK - SGB II para. 118 on § 22 SGB II) cannot yet be examined as comprehensively in interim legal protection proceedings as in proceedings on the merits need to be clarified because they cannot usually be found completely in the administrative files.
In any case, behavior that is socially unfriendly, uneconomical and ignores the possibilities of self-help, which could shape the respondent's discretion, is not evident here (cf. SG Hannover of December 19, 2005 - S 51 SO 741/05 ER), therefore except To remain under consideration - especially since any uneconomic behavior on the part of the applicant would have to be proven by the provider of the benefit (LSG Nds.-Bremen, decision of October 2, 2008 - L 7 AS 463/08 ER -).
Berlin-Brandenburg State Social Court L 34 AS 1090/09 B ER July 21, 2009 legally binding, decision
No assumption of electricity debts if the person in need of help had trusted that the basic security provider would take over the monthly installment payments to the electricity supplier.
When examining the question of whether the benefit is justified, it is important, among other things, how the emergency came about. Assuming the debt is usually only justified if, given the overall circumstances, the person in need of assistance has fallen behind on payments for accommodation-related costs (rent, gas and electricity costs, etc.) through no fault of their own, the emergency threatens the existence of the person entitled to the benefit and the Debts cannot be paid off on your own. Taking on debts is not justified if, for example: B. rent or energy cost discounts are not paid in the belief that the service provider will later take over the rent and/or energy debts (BT-Drs. 13/2440 p. 19 on the predecessor regulation of Section 15a of the Federal Social Assistance Act) or rent debts have arisen as a result, that the person seeking help remained in an unreasonably expensive apartment despite instructions from the provider and did not cover the difference between reasonable and actual costs (OVG Lüneburg, decision of March 24, 1999 - 4 M 756/99 - para. 23). Taking on the debt should not subsequently reward irresponsible behavior on the part of those entitled to benefits and thereby further strengthen a lack of personal responsibility.
4. State Social Court of North Rhine-Westphalia L 7 B 323/09 AS ER April 27, 2010 legally binding, decision
For those in need of help, the standard benefit in the EA procedure must be granted temporarily and provisionally, because the exclusion of benefits in Section 7 Paragraph 1 Sentence 2 No. 2 SGB II for a Dutch national as a former Union citizen, taking primary EU law into account, raises considerable concerns ( Case law of the European Court of Justice (ECJ) in particular in the Collins cases (judgment of March 23, 2004, C-138/02) and Vatsouras, Koupatantze (judgment of June 4, 2009, C-22/08 and C-23/08).
Note: State Social Court of North Rhine-Westphalia L 7 B 489/09 AS ER, decision of May 3, 2010, legally binding
For those in need of help, the standard benefit in the EA procedure must be granted temporarily and provisionally, because the exclusion of benefits in Section 7 Paragraph 1 Sentence 2 No. 2 SGB II for a Portuguese citizen as a former Union citizen, taking primary EU law into account, raises considerable concerns ( Case law of the European Court of Justice (ECJ) in particular in the Collins cases (judgment of March 23, 2004, C-138/02) and Vatsouras, Koupatantze (judgment of June 4, 2009, C-22/08 and C-23/08).
It is controversial in case law and literature whether the regulation of Section 7 Paragraph 1 Sentence 2 No. 2 SGB II, which norms an exclusion of benefits without a corresponding opening clause, especially for former Union citizens, is compatible with Community law. (see, among others, LSG Baden-Württemberg, decision of July 23, 2008, L 7 AS 3031/08 ER-B; LSG Berlin-Brandenburg, decision of June 8, 2009, B 34 AS 790/09 B ER; LSG NRW, decision of July 16, 2008, L 19 B 111/08 AS ER; Schreiber info also 2008, 3 ff. and 2009, 195 ff.; Kunkel/Frey, ZFSH 2008, 387 ff.; Husmann, NZS 2009, 547 ff., 652 ff .; Hailbronner, ZFSH 2009, 195 ff.; Piepenstock, jurisPR-SozR, 23/09 note 1; Daiber, VSSR 2009, 299, 311 ff.).
However, this legal question cannot be conclusively clarified in expedited proceedings. However, the German courts are obliged to submit a referral to the European Court of Justice, which is responsible for the interpretation of Articles 39 and 12 of the EC Treaty in question here, only for the main proceedings, but not for the interim legal protection proceedings, because this is due to their nature as interim and urgent would contravene legal protection procedures. Taking into account the summary review required in the interim legal protection procedure and the livelihood-securing nature of the benefits under SGB II, an assessment of the consequences must therefore be carried out according to the case law of the Federal Constitutional Court presented above.
4.1 – State Social Court of North Rhine-Westphalia L 19 AS 219/10 B ER April 28, 2010 legally binding, decision
ALG II - Recipients are required to provide the documents required by the service provider regarding their income from self-employment in accordance with Section 60 SGB I, because the obligations to cooperate in SGB I also apply within the framework of SGB II (cf. BSG ruling of February 19th. 2009 – B 4 AS 10/08 R; BSG judgment of September 19, 2008 – B 14 AS 45/07 R-).
5. Baden-Württemberg State Social Court L 7 AS 5458/09, judgment of April 22, 2010, appeal permitted
Payments made by a parent based on a maintenance title in favor of a minor child are also to be deducted from income in accordance with Section 11 Paragraph 2 Sentence 1 No. 7 SGB II if the parent becomes in need of help as a result of the payment because the amount paid based on this title is no longer available to him is available as a ready means within the meaning of social welfare law.
§ 11 Para. 2 Sentence 1 No. 7 SGB II on the deduction of expenses for the fulfillment of statutory maintenance obligations from income cannot be interpreted restrictively to the effect that only seized or likely to be seized maintenance titles are to be taken into account
In this case, a deduction of maintenance payments from income cannot be avoided solely from the perspective of failure to help oneself (Section 2 SGB II) on the grounds that the recipient of the benefit did not work towards changing his maintenance title. In this respect, § 2 SGB II does not contain any enforceable legal obligations, but rather obligations, the violation of which can only result in performance-related consequences, which are specifically and conclusively regulated in §§ 31, 32 SGB II.
The appeal is being carried out due to the fundamental importance of the case with regard to the question of the deduction of payments in accordance with Section 11 Paragraph 2 Sentence 1 No. 7 SGB II based on maintenance titles in favor of underage children if the person obliged to pay maintenance needs assistance in accordance with Section 160 Paragraph, which has not yet been clarified by the highest court. 2 No. 1 SGG approved.
www.socialcourtsability.de
Note: You are entitled to benefits under SGB II if there is no longer any income to be taken into account due to the payment of a maintenance allowance. This applies as long as the claim is entitled and the payment is within the specified framework (Saxon State Social Court L 7 AS 146/09 B ER, decision of May 12, 2009).
6. SG Karlsruhe judgment of April 27, 2010, S 4 SO 3120/08
In principle, usable assets within the meaning of Section 90 Paragraph 1 SGB XII also include small areas of agricultural and forestry land.
These are usable if a reasonable price can be achieved in the foreseeable future. A 10% realization discount must be deducted from the market value, for example for a new cadastral measurement as well as for notarial and land registry costs that inevitably arise in the event of a sale.
www.socialcourtsability.de
6.1 – Karlsruhe Social Court S 4 SO 1393/10 ER April 28, 2010, decision
Anyone who is entitled to housing benefit, the amount of which covers their social assistance needs for accommodation costs, will not receive any social assistance.
6.2 – Karlsruhe Social Court S 16 AS 1798/09 March 29, 2010, judgment
The concept of a basic security provider for determining the appropriate accommodation costs, which does not differentiate according to apartment size and is based on data that is not limited to the relevant comparison area in spatially non-contiguous partial housing markets, is not conclusive in the sense of case law. BSG.
In order to determine the nature of the local rental housing market and to determine an upper rent limit for apartments with a modest layout, the basic security provider does not necessarily have to rely on a qualified or simple rent index within the meaning of Sections 558c and 558d of the German Civil Code (BGB). However, the data basis chosen by the basic security provider must be based on a coherent concept that offers sufficient guarantee that it reflects the current conditions of the local rental housing market (Federal Social Court, judgment of June 18, 2008 - B 14/7b AS 44/06 R para. 16 with further references) . What is crucial in this respect is that the basic social security provider's findings are based on a concept that is coherent in the interests of verifiability of the result and that the limitation of the actual accommodation costs to an appropriate level is therefore sufficiently understandable. When creating such a concept, it should be noted that the person in need of help must be able to rent an appropriate apartment in the specific comparison area given the reference rent determined. This requires a planned approach by the basic security provider in the sense of the systematic determination and assessment of the necessary facts for all applications in the relevant comparison period. The concept chosen by the basic security provider is conclusive if it meets at least the following requirements (Federal Social Court, judgment of September 22, 2009 - B 4 AS 18/09 R, paragraph 19; judgment of December 17, 2009 - B 4 AS 50/09 R, Paragraph 23; judgment of December 17, 2009 - B 4 AS 27/09 R, paragraph 26):
– Data collection may only take place in the precisely defined area and must take place across the entire comparison area (no ghetto formation).
– A comprehensible definition of the object of observation is required, e.g. what type of apartments – differentiation according to the standard of the apartments, gross and net rent (comparability), differentiation according to apartment size.
– The concept must contain information about the observation period.
– The method of data collection needs to be determined (sources of knowledge, e.g. rent index).
– The scope of the data included must be representative.
– The validity of the data collection must be ensured.
– The recognized mathematical and statistical principles of data evaluation must be adhered to.
– The concept must contain information about the conclusions drawn (e.g. upper clamping value and capping limit).
7. Social Court Cottbus S 14 AS 178/09 December 9, 2009
There is no entitlement to recognition of additional needs in accordance with Section 21 Paragraph 3 SGB II in a community of needs.
8. Relevant topics from SGB II and SGB XII – revisions pending at the BSG
To not take into account electricity costs for the heating pump, outdoor lighting and garden maintenance as accommodation costs for a house property used for self-protection purposes.
LSG NSB L 7 AS 354/06, resolution of April 27, 2009, revision pending at the BSG – B 14 AS 51/10 R-
A missing hearing is effectively made up and remedied if, in the oral hearing of the final factual instance of the social court proceedings, those involved are expressly given the opportunity to express themselves and the person in need of help has otherwise commented on the relevant circumstances in the legal proceedings (this was also expressly done by the North Rhine State Social Court -Westphalia (judgment of August 20, 2007 - L 20 AS 99/06 -).
Schleswig-Holstein State Social Court L 11 AS 8/08 March 17, 2009, judgment, appeal pending at the BSG -B 4 AS 37/09 R –
9. Note on: BSG 4th Senate, judgment of September 22, 2009 - B 4 AS 13/09 R
Author: Imme Müller, senior government councilor in the Federal Ministry of Economics and Technology
Release date: May 6, 2010
Source: jurisPR-SozR 9/2010 Note 1
Quote:
1. An employable person in need of assistance has no legal right to conclude an integration agreement or to negotiate this with the basic social security provider.
2. According to Section 14 Sentence 2 SGB II, a person seeking help has no right to have an unbiased and qualified personal contact named.
The constitutional complaint against the judgment was not accepted for decision (BVerfG, 1st Senate 3rd Chamber dated April 26, 2010 - 1 BvR 1028/10).
www.juris.de
10. Initial recommendations for improving the employment integration of people with a migration background
Preliminary remark
Germany has been a country of immigration for many years and will continue to experience immigration in the future. The proportion of the population with a migrant background in Germany is currently just under 20%. This part of society is just as diverse as its employment conditions are heterogeneous. Nevertheless, people with a migrant background have been disproportionately affected by unemployment for decades and are found below average in management positions, the public service and professions with good career opportunities and/or high wages. This has complex causes, but above all, far-reaching consequences for those affected and for society as a whole.
11. Crediting assets towards Alg II and other important brochures
Asset protection and crediting of assets towards ALGII and social benefits, taking into account the new regulations as of April 16, 2010
Gisela Tripp, head of the ALZ and Jonny Bruhn-Tripp, employee in the adult and family education department at Evang.
Bildungswerk Dortmund have prepared this brochure based on the current legal status. People only receive unemployment benefit II and social benefit if they are in need of help. Assets are also taken into account when assessing need. The brochure provides answers to the questions:
– what is meant by assets
– whose assets are used
– what asset allowances are there
– which assets are privileged.
12. Six years of struggling for the subsistence level - and no end.
On the judgment of the Federal Constitutional Court of February 9, 2010
Author: Helga Spindler
Source: Nomos Info also – issue 2/2010
