Receipt of a labor market pension does not exclude the ability to work.
The mere fact that a recipient of assistance receives a pension due to incapacity to work should not mean that he or she meets the requirements for entitlement to social benefits because of this temporary incapacity to work. The concept of incapacity for work under pension insurance law is not the same as the concept of inability to work under basic security law. In contrast to pension insurance law, in basic security for job seekers, the closure of the part-time job market is fundamentally irrelevant for assessing the earning capacity of the person seeking help, so that receiving a so-called labor market pension does not generally lead to the loss of earning capacity.
Recipients of social benefits can claim additional needs analogous to Section 30 Paragraph 1 Sentence 2 SGB .
The different treatment of those in need of help who are unable to work and those who are able to work does not violate Article 3 Paragraph 1 of the Basic Law.
www.socialcourtsability.de
2. BVerwG 5 C 7.09 – judgment of May 27, 2010
In principle, saved basic pensions under the Victim Compensation Act are not usable assets.
{1}Section 88 Paragraph 3 Sentence 1 BSHG = Section 90 Paragraph 3 Sentence 1 SGB has to use assets and would cause hardship for his dependent relatives.
3. Berlin-Brandenburg State Social Court L 23 SO 46/10 B ER, decision of May 4, 2010 legally binding
Current and future rental costs can be covered by the service provider in the event of imprisonment in accordance with Sections 67 and 68 SGB
According to Section 67, Paragraph 1, Sentence 1 of the SGB This results in a legal claim and not just a claim to a decision free of discretionary errors (cf. Grube/Wahrendorf, SGB XII, 2nd ed., § 67 Rz 4). The vague legal concept of special living conditions is specified in Section 1 Paragraph 2 of the Ordinance on Section 69 SGB According to this, special living conditions exist for people who are released from a closed facility. This also applies to release from prison. The detainee may be at risk of homelessness if they are unable to return to their home. In this respect, help to maintain the apartment (§ 4 VO) is also preventive because it is necessary in view of an imminent, concretely foreseeable dismissal (see Bavarian State Social Court, decision of September 17, 2009 - L 18 SO 111/09 B ER -.
According to Section 1 Paragraph 3 of the Regulation, social difficulties exist when life in the community is significantly restricted by the exclusionary behavior of the person seeking help or a third party, including in connection with delinquency. Social difficulties alone and thus general life difficulties are not enough. Rather, the social difficulties must be of such an intensity that the person concerned is not only temporarily unable to participate in community life or is only able to do so to a considerably limited extent (Schoenfeld in Grube/Wahrendorf, SGB XII, Comm., 2nd ed. § 67 Rn. 10 mwN).
Note: Bavarian State Social Court L 18 SO 111/09 B ER, decision of September 17, 2009
According to Section 34 Paragraph 1 Sentence 1 SGB XII, debts can only 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 (sentence 2). The regulation of Section 34 Paragraph 1 SGB should. Although the justification for the draft law on Section 34 of the SGB Debts are liabilities that arose in the past that the beneficiary must fulfill. In this respect, the scope of application of Section 34 SGB It follows from this that according to the regulation of § 34 SGB XII, K § 34 Rz 7, LSG North Rhine-Westphalia resolution of June 30, 2005 - L 20 B 2/05 SO ER). (Case law ticker from Tacheles 50/2009 )
3.1 – Berlin-Brandenburg State Social Court L 32 AS 1771/09, judgment of March 26, 2010, appeal permitted
Sunday, public holiday and night surcharges must be taken into account as income.
The surcharges for night, Sunday and public holiday work are not a (flat-rate) compensation for additional expenses (a different opinion (BSG, judgment of March 21, 1990 -7 RAr 86/87-SozR 3-4100 § 138 No. 2 with reference). on judgment of August 21, 1962 -11 RV 1056/60- SozR No. 18 on § 33 BVG).
Tax-free supplements must generally be taken into account as income and only be deducted if expenses actually increase in accordance with Section 11 Paragraph 2 Sentence 1 No. 5 SGB II.
Note: State Social Court of North Rhine-Westphalia L 7 AS 81/09, judgment of January 27, 2010, appeal pending at the BSG – B 14 AS 45/10 R –
LSG Sachsen, judgment of October 29, 2009, file number L 2 AS 99/08, appeal against this pending under B 4 AS 90/09 R.
LSG Saxony, judgment of October 29, 2009, file number L 2 AS 100/08, appeal against this pending under B 4 AS 89/09 R.
LSG Sachsen, judgment of October 29, 2009, file number L 2 AS 101/08, appeal against this pending under B 4 AS 91/09 R
Tax-free night supplements are earmarked income within the meaning of Section 11 Paragraph 3 No. 1a SGB II (case law ticker from Tacheles 11/2010 )
3.2 – Berlin-Brandenburg State Social Court L 20 AS 2047/09 B ER, decision of March 10, 2010, legally binding
The exclusion of benefits in Section 7 Paragraph 5 SGB II does not include those people who take advantage of a pre-vocational training measure as a benefit to participate in working life.
This is because these people do not complete any training within the meaning of Section 7 Paragraph 5 SGB II, but rather take part in LTA, so that any eligibility for funding in accordance with Sections 60 to 62 SGB III is not relevant (cf. Senate resolution of March 10th 2009, L 20 AS 47/09 B ER, para. 28 ff.).
www.socialcourtsability.de
4. State Social Court of North Rhine-Westphalia L 7 AS 533/10 B, decision of May 17, 2010, legally binding
Granting of legal aid for the unresolved legal question of whether the case law of the Federal Social Court on social assistance, according to which basic security benefits in old age and in the event of reduced earning capacity do not require a follow-up application after the end of an approval period (BSG, judgment of September 29, 2009, B 8 SO 13/08 R), can also be used for the granting of benefits in accordance with SGB II.
No benefits without an application; on the requirement of a follow-up application after the end of the approval period, see link in Eicher/Spellbrink, Commentary on SGB II, 2nd edition 2008, § 37 Rn. 19; Hessisches LSG, judgment of December 18, 2009, L 7 AS 413/09; LSG NRW, judgment of April 17, 2008, L 9 AS 69/07). A supreme court decision is still required in the area of basic security for job seekers, as the BSG decision of October 28, 2009 (B 14 AS 56/08 R) only dealt with an initial application.
Note: State Social Court of North Rhine-Westphalia L 7 B 467/09 AS, decision of March 9, 2010 legally binding
Whether the case law of the Federal Social Court on social assistance, according to which basic security benefits in old age and in the event of reduced earning capacity do not require a follow-up application after the end of an approval period (BSG, judgment of September 29, 2009, B 8 SO 13/08 R), also applies to the granting of benefits according to the SGB II can be used accordingly is doubtful (cf. Dr. Jens Blüggel, in Social Security 5/2009, page 193 ff., No benefits without an application; on the need for a follow-up application after the approval period has expired, see link in Eicher/Spellbrink, comment to SGB II, 2nd edition 2008, § 37 Rn. 19; Hessisches LSG, judgment of December 18, 2009, L 7 AS 413/09; LSG NRW, judgment of April 17, 2008, L 9 AS 69/07). A supreme court decision is still required in the area of basic security for job seekers. (Case law ticker from Tacheles 12/2010 )
Hessian State Social Court L 7 AS 413/09 December 18, 2009, judgment, appeal against this pending under B 4 AS 29/10 R.
Hartz IV benefits are not granted for periods before the application is submitted - this also applies after the approval period has expired - even if need is present. (Case law ticker from Tacheles 16/2010 )
4.1 State Social Court of North Rhine-Westphalia L 7 AS 107/09, judgment of April 22, 2010
Bridging money paid upon release from prison in accordance with Section 51 StVollzG must be taken into account as income within the meaning of Section 11 SGB II. However, in accordance with the legal purpose of Section 51 StVollzG, the one-off income is only to be taken into account as income for the first four weeks after dismissal.
Note: Düsseldorf Social Court S 10 AS 37/09, judgment of February 22, 2010,
Bridging money paid upon release from prison in accordance with Section 51 StVollzG must be taken into account as income within the meaning of Section 11 SGB II. However, in accordance with the legal purpose of Section 51 StVollzG, the one-off income is only to be taken into account as income for the first four weeks after dismissal and is not to be divided over a longer period of time in accordance with Section 2 Paragraph 4 Sentence 3 Alg II-V.
Benefits according to SGB II do not serve to settle liabilities. Debts outstanding at the time the income is paid are not deductible from income. Apart from the fact that § 6 ALG II-VO as amended on December 27, 2007 in conjunction with § 11 Para. 2 SGB II conclusively regulates which items are to be deducted from income before it is subject to division, income must be promoted to secure the livelihood of the people Using members of the community of need. This applies to a member of the community of needs even if it makes them unable to fulfill existing contractual obligations (BSG, judgment of September 30, 2008 - B 4 AS 29/07 R; LSG NRW, judgment of April 2, 2009 - L 9 AS 58/07). (Case law ticker from Tacheles 13/2010 )
The bridging allowance within the meaning of § 51 StVollzG is a cash payment which, after 4 weeks after the end of the prison period in accordance with § 11 Paragraph 3 No. 1a SGB II, is intended as income that does not apply to the benefits in accordance with SGB II by the Top performers can be credited. (see BVerwG of June 21, 1990, Ref. 5 C 64/86, Oldenburg Social Court S 47 AS 1732/08, judgment of February 20, 2009; Baden-Württemberg State Social Court L 12 AS 5623/08, judgment of April 24, 2009, on SGBX II Aachen Social Court S 20 SO 20/09, judgment of July 14, 2009; bridging allowance is to be offset against basic security benefits in old age. ( Tacheles case law ticker 42/2009 )
4.2 – State Social Court of North Rhine-Westphalia L 19 AS 504/10 B ER, decision of May 25, 2010, legally binding
According to Section 7 Paragraph 4 Sentence 2 SGB II, anyone who is in a facility for the execution of a court-ordered deprivation of liberty for longer than six months will not receive any benefits under SGB II.
Regarding the question, which is controversial in case law and literature, as to whether someone who is in such an institution can only receive benefits if, as stipulated in Section 7 Paragraph 4 Sentence 3 No. 2 SGB II, they do so under the usual conditions of the general labor market is (actually) employed for at least 15 hours a week (in this sense LSG Berlin-Brandenburg, decision of January 2, 2007 - L 14 B 948/06 AS ER; Valgolio in Hauck/Noftz, SGB II, § 7 Rn 71; op 65), the Federal Social Court (BSG) has already pointed out that the provisions of Section 7 Paragraph 4 SGB II must be interpreted functionally in the sense of the mere possibility of participation in the general labor market. The legislature made this clear by introducing the provision of Section 7 Paragraph 4 Sentence 2 SGB II, which only refers to normal enforcement (cf. BSG, judgment of September 6, 2007 - B 14/7 b AS 60/ 06 R - Rn 16; aA SG Leipzig, judgment of October 27, 2008 - S 17 AS 3040/07 - Rn 15).
Note: LSG Berlin-Brandenburg, decision of. 02.01.2007 – L 14 B 948/06 AS ER
Free walkers are entitled to basic social security benefits in accordance with SGB II.
SG Gießen, dated March 1, 2010, Ref. S 29 AS 1053/09, judgment, pending at the Hessian State Social Court L 9 AS 162/10
Hartz IV – benefits despite youth arrest
Anyone who is serving a juvenile arrest under the Youth Court Act (JGG) is also entitled to benefits under the Second Book of the Social Security Code (SGB II). The provision of Section 7 Paragraph 4 Sentence 2 SGB II, which fundamentally excludes such benefits in the event of a deprivation of liberty, does not apply here. (Case law ticker from Tacheles 14/2010 )
5. Cologne Social Court S 21 SO 199/09, judgment of March 31, 2010, appeal permitted
Social welfare provider must cover the costs of medically prescribed contraception (Implanon) for a 36-year-old mentally disabled person.
The costs for contraception using hormonal sticks are largely due to the mental disability and can be covered as part of the integration assistance as a disability-specific need, because as part of the integration assistance, the costs (if the amount is appropriate) are regularly covered, which are additionally covered by the Disability of those affected arise (see Thuringian LSG bombardment of December 22, 2008 -L 1 SO 619/08 ER-).
The basis for the claim for the assumption of this disability-specific need is Section 54 Paragraph 1 SGB the comprehensive support postulate of § 4 SGB IX regulates participation services with a focus on interactive and everyday practical/elementary basic needs (Luthe in jurisPK- SGB IX § 55 Rdn. 13). Services to satisfy basic social needs in the affected person's immediate living environment and to improve the quality of life are then considered if they are suitable for establishing, stabilizing or facilitating the disabled person's relationships with the community. This is the case here, because the safe contraceptive method is a means to an end, namely to enable or facilitate the mentally handicapped person's self-determined sexual life in their marital community (see Section 4 Paragraph 1 No. 4 SGB IX and Section 53 Paragraph 3 SGB XII).
Note: SG Duisburg, judgment of September 9, 2008 -S 7 SO 10/07-
42-year-old mentally disabled social welfare recipient is entitled to cover the costs of purchasing the contraceptive Noristerat. The claim arises from Section 49 SGB XII. (Case law ticker from Tacheles 44 KW/2008 )
6. Basic information about cancellation and reclaim notices
The approval of unemployment benefit II is - as the reference in Section 40 Paragraph 1 No. 1 SGB II shows - a permanent administrative act, the validity of which can only be broken by a contrary decision to revoke it (BSG, judgment of December 17, 2009 - B 4 AS 30/09 R – Rn. 14; BSG, judgment of December 17, 2009 – B 4 AS 30/09 R – Rn. 14).
According to Section 40 Paragraph 1 SGB II in conjunction with Section 48 Paragraph 1 Sentence 2 No. 3 SGB According to Section 40 Paragraph 1 Sentence 1 SGB II in conjunction with Section 330 Paragraph 3 SGB III, the administrative act is to be repealed with effect from the time of the change in circumstances if income has been generated after the application or issuance of the administrative act that leads to the loss or reduction of the claim (Section 48 Paragraph 1 Sentence 2 No. 3 SGB X). It is sufficient that it is not the person in need of help themselves who has earned income or assets, but rather another person whose economic circumstances are legally relevant for the entitlement to benefits (BSG, judgment of February 18, 2010 - B 4 AS 49/09 R -).
According to Section 45 Paragraph 1 SGB The word may grants the authority discretion to take back (BSG, judgment of March 23, 2010 - B 8 SO 12/08 R - ; BSGE 66, 204 ff = SozR 3-1300 § 45 No. 1 mwN; Schütze in von Wulffen, SGB X , 6th edition 2008, § 45 RdNr 88; Waschull in LPK-SGB X, 2nd edn 2007, § 45 RdNr 57).
Section 45 SGB X applies if the administrative act was unlawful at the time it was issued and should therefore be withdrawn; On the other hand, a repeal according to Section 48 SGB Both standards are therefore differentiated according to the time of the issuance of the administrative act that is to be repealed (see BSGE 96, 285 = SozR 4-4300 § 122 No. 4 RdNr 13; BSGE 59, 206 = SozR 1300 § 45 No. 20 S 68 and BSGE 65, 221 = SozR 1300 § 45 No. 45 S 141). According to the case law of the Federal Social Court, an administrative act is issued at the point in time at which it was announced to the addressee and thus became effective (BSG, judgment of December 16, 2008 - B 4 AS 48/07 R - Rn. 15 ; BSGE 59, 206 = SozR 1300 § 45 No. 20 S 68; BSGE 96, 285 = SozR 4-4300 § 122 No. 4 RdNo. 13).
According to Section 39 SGB When the notice is effective is regulated in more detail in Section 37 SGB X. The presumption of receipt according to Section 37 Paragraph 2 (three days after posting) can be refuted. A sender note does not prove that the notice was actually received. In case of doubt, the social service provider must prove the access and the time of access and bears the objective burden of proof if earlier or later access cannot be clarified (BSG, judgment of December 11, 2007 - B 8/9b SO 12/06 R -).
The announcement of a written administrative act occurs upon receipt. With those present, this is the handover of the administrative act to the addressee. For the announcement to those who are absent, it depends on when the administrative act has reached the recipient's area in such a way that, under normal circumstances, he has the opportunity to take note of the content of the declaration. Actual knowledge is not required.
If the administrative act is announced first and then the inflow into the account, Section 48 SGB X must be used. If the income has already been received before the notice is announced, Section 45 SGB X applies. If the announcement and the inflow took place at the same time, this is a constellation that also falls under Section 45 SGB X. Because then the (actual) conditions brought about by the inflow already exist at the time the administrative act is issued. However, Section 48 Paragraph 1 Sentence 1 SGB BSG SozR 3-2600 § 93 No. 3 S 17).
In the context of a legal dispute, the legality of an administrative act must be examined from every legal perspective. This also includes the application of a different legal norm, such as that of Section 45 SGB X instead of Section 48 SGB Judgment of January 20, 2010 - L 18 AS 1272/08 - ; Eicher in: Eicher/Spellbrink, SGB II, 2nd edition, 2008, § 40 Rn. 114 with further references).
The fact that the administrative act was based on § 45 SGB X or § 48 SGB the scope of regulation or its essence is changed or the legal defense of the person concerned is impaired or made more difficult in an impermissible manner (BSGE 29, 129, 132; 87, 8, 12; BSG, judgment of September 18, 1997 - 11 RAr 9/97 - RdNo. 22 ; BSG, judgment of April 25, 2002 – B 11 AL 69/01 R – RdNr 16 f). Because §§ 45, 48 SGB .
If a benefit recipient provides false information and declares in connection with the application for follow-up benefits that there have been no significant changes, this is also incorrect (cf. LSG Berlin-Brandenburg, judgment of March 12, 2010 - L 5 AS 2340/08 - ; LSG Saarland, judgment of February 18, 1999 - L 6 AL 6/98, NZS 2000, 102; Vogelgesang in Hauck/Noftz, SGB X, commentary, as of July 2008, § 45 para. 41).
Without the incorrect information, the corresponding decisions, which were illegal due to the lack of the requirements, would not have been issued, so they were causal or at least contributory (cf. Waschull in Diering/Timme/Waschull, SGB X, commentary, 2nd edition 2007, § 45 para . 36).
According to Section 330 Paragraph 2 SGB III, if the requirements of Section 45 Paragraph 2 Sentence 3 SGB X are met, the administrative act must also be withdrawn with effect for the past. The service provider does not have to exercise discretion, even in atypical cases, but rather has to make a bound decision (cf. BSG, judgment of June 5, 2003 - B 11 AL 70/02 - ; Niesel, SGB III, commentary, 4th edition 2007, § 330 paragraph 50).
The culpability of the overpayment of benefits must be examined individually, taking into account the level of understanding of the recipient of the notice. This also applies to the individual members of a community of need, whereby underage children must have their parents' fault attributed to them in accordance with Section 166 of the German Civil Code (SG Aachen of February 22, 2008 - S 8 AS 61/07; Geiger: Requirements for cancellation notices according to Sections 45, 48 SGB X in SGB III and SGB II; info also 2009 issue).
An adult Hartz IV recipient living in the community of need does not have to have his mother's fault attributed to him if she provided false information when applying for ALG II, because his mother's legal power of representation according to Section 1629 of the German Civil Code (BGB) and therefore an attribution according to Section 166, 278 BGB (for application see BSGE 28, 258ff.; 42, 184, 186; 57, 274, 279; Steinwedel in Kassel commentary SGB Once the representative has reached the age of majority, the fault of the representative can only be attributed in the context of arbitrary representation (cf. § 13 SGB Section 38 SGB II only allows a presumption of authorization when submitting applications and receiving services. However, the provision does not provide for any general presumption of authorization beyond this; the person represented does not have to accept any fault on the part of the representative (cf. Udsching/Link Revocation of benefit notices in SGB II" in "Social Justice 2007 p. 513, 517; Eicher / Spellenbrink , 2nd ed. § 38 Rn 19 (expressly abandoning the other view held in the previous edition), LPK Münder/Schoch 2nd ed. § 38 Rn 17).
Geiger takes a different view: Requirements for cancellation notices according to Sections 45, 48 SGB X in SGB III and SGB II; info also 2009 issue, - If an adult in the BG leaves the official affairs to the parent or partner, he has to answer for his fault according to § 278 BGB.
According to Section 39 No. 1 SGB II, objections and lawsuits against an administrative act that cancels, withdraws, revokes or reduces basic security benefits for job seekers do not have a suspensive effect.
A reimbursement notice neither cancels benefits nor does it take them back, revoke them or reduce them (Löns/Herold-Tews, SGB II, 2nd ed. 2009, § 39 Rn. 4). It is clear from the wording of the standard that reimbursement notices do not fall under the exception of Section 39 No. 1 SGB II. Since the cases regulated in § 39 SGB II are exceptions to the legally regulated principle of suspensive effect in § 86 a para. 1 sentence 1 SGG, an expanded interpretation of the facts mentioned is also prohibited (Berlit in: Münder, LPK -SGB II, 3rd edition 2009, § 39 Rn. 3).
The suspensive effect is only eliminated in all social law in rare, exceptional cases. In employment promotion law, for example, it only applies to the reduction and withdrawal of current benefits, i.e. only for future-oriented cancellation; in social assistance law it does not apply at all (Eicher/Spellbrink, SGB II, 2nd ed. 2008, § 39 Rn. 3). It is not clear why, in the area of basic security for job seekers, the interest of the service provider in an immediate reimbursement of services already provided should outweigh the interest of the (needy) benefit recipient in (provisionally) retaining the payments made to secure their existence. These considerations apply to the same extent to a reimbursement notice according to Section 50 Tenth Book of the Social Code (SGB X) as to one according to Section 328 Paragraph 3 Sentence 2 SGB III.
The explanatory memorandum to the law (BT-Drs. 16/10810, p. 50 to number 14) makes it clear that objections to reimbursement notices will have a suspensive effect in the future, as these administrative acts do not regulate basic security benefits for job seekers. From the wording of Section 39 No. 1 SGB II new version, the justification for the law and the meaning and purpose of the principle of the suspensive effect of contradictions, it follows that the objection to reimbursement notices has a suspensive effect (see Harald Thome: Supplementary sheet to the ALG II guide, as of May 2010, page 15). This applies regardless of the legal basis on which the reimbursement notice is based (expressly affirmative for reimbursement notices according to Section 328 Paragraph 3 Sentence 2 SGB III: Conradis in: Münder, SGB II, 3rd edition 2009, Section 40 Rn. 12).
Objections and lawsuits against refusal notices (§ 66 SGB I) have a suspensive effect (Baden-Württemberg State Social Court -L 7 AS 304/10 ER-B from April 8, 2010; SG Lüneburg -S 45 AS 4/10 ER - from January 14, 2010; LSG NSB of March 8, 2010 – L 13 AS 34/10 B ER – disagrees
According to Section 39 No. 1 SGB II, an objection to an administrative act that, among other things, cancels, withdraws, revokes or reduces basic security benefits for job seekers does not have a suspensive effect. With the choice of the relevant terms, the regulation makes it clear that what is meant is the repeal provisions of Sections 45 to 49 SGB SGB II, 3rd edition, § 39 RdNo. 5).
A withdrawal of benefits due to a lack of cooperation in accordance with Section 66 Paragraph 1 Sentence 1 SGB II is therefore not covered by the exclusion of the suspensive effect. The provision of Section 39 No. 1 SGB II cannot be interpreted in an expanded manner. On the one hand, according to the general rules, this follows from the fact that it is an exceptional provision, and on the other hand, from the fact that the provision represents a restriction on legal protection (LSG Hamburg, decision of May 29, 2006, Ref.: L 5 B 77/06 ER AS; G. Wagner in: jurisPK-SGB II, 2nd edition 2007, § 39 RdNo. 14; Conradis in LPK-SGB II, 3rd edition, § 39 RdNr. 4, 11).
According to the LSG NSB of March 8, 2010 - L 13 AS 34/10 B ER - objections and lawsuits against denial notices have no suspensive effect, because the denial or withdrawal of benefits due to failure to cooperate in accordance with Section 66 SGB I also constitutes a decision on basic security benefits for job seekers for whom no suspensory effect should apply under this provision (cf. Eicher in: Eicher/Spellbrink, SGB II, 2nd edition, Munich 2008, § 39 Rdn 12; LSG Niedersachsen-Bremen, Beschl. of June 29, 2006 – L 9 AS 239/06 ER -).
