Federal Social Court (BSG), Judgment of 22 March 2010, – B 4 AS 68/09 R –
Section 31 Paragraph 1 Number 1 Letter c of the German Social Code, Book II (SGB II) does not serve as a legal basis for reducing unemployment benefit II if there is no instruction regarding the legal consequences. The termination of an employment relationship by an employer does not fall under the concept of continued employment by the employable person in need of assistance within the meaning of this sanction provision. However, an employer termination can, according to Section 31 Paragraph 4 Number 3 Letter b of the SGB II, constitute grounds for a reduction in benefits.
A refusal to continue working exists only if the employable person in need of assistance resigns, concludes a termination agreement, or simply abandons their dependent or self-employed activity. The fact that the legislator distinguishes between an (active) termination of the employment relationship by the person in need of assistance and its termination by the employer due to the employee's conduct is also evident from the further reduction provision of Section 31 Paragraph 1 Sentence 1 Number 2 of the German Social Code, Book II (SGB II), which expressly provides for a reduction of unemployment benefit II (Alg II) when participating in an integration measure, even if the employable person in need of assistance has given cause for the termination. Similarly, in the waiting period provisions of the German Social Code, Book III (SGB III) (Section 144 Paragraph 1 Sentence 2 Number 1), the legislator has specifically included the situation where the unemployed person "gave cause for the termination of the employment relationship through conduct contrary to the employment contract.".
However, an employer's termination of employment can, according to Section 31 Paragraph 4 Number 3 Letter b of the German Social Code, Book II (SGB II), constitute grounds for a reduction in benefits, because this regulation is applicable to the present situation. According to Section 31 Paragraph 4 Number 3 Letter b of the SGB II, Paragraphs 1 to 3 apply accordingly to an employable person in need of assistance who fulfills the requirements specified in the Third Book of the German Social Code (SGB III) for the commencement of a sanction period, which results in the suspension or expiry of an entitlement to unemployment benefits. This refers, among other things, to Section 144 Paragraph 1 Sentence 2 Number 1 of the SGB III, according to which a sanction period is imposed upon termination of employment if the unemployed person has intentionally or through gross negligence caused their unemployment. Unlike Section 31 Paragraph 1 Sentence 1 Number 1 Letter c of the SGB II, Section 31 Paragraph 4 Number 3 Letter b of the SGB II does not require prior notification of the legal consequences for the commencement of the sanction period.
The application of Section 31 Paragraph 4 Number 3 Letter b of the German Social Code, Book II (SGB II) requires, in the sense of restrictive application conditions, that the conduct demanded of the person in need of assistance is not already covered by Section 31 Paragraph 1 of the SGB II and that the event relevant to the waiting period occurs at a time when the person in need of assistance has a relationship to the legal sphere of the German Social Code, Book III (SGB III) (Federal Social Court, Judgment of December 17, 2009 – B 4 AS 20/09 R – Paragraph 24).
Against this background, Section 31 Paragraph 4 Number 3 Letter a of the German Social Code, Book II (SGB II) – like Section 25 Paragraph 2 Number 3 Letter a of the former Federal Social Assistance Act (BSHG) – aims to ensure that the suspension or expiry of benefits due to a disqualification period imposed under the German Social Code, Book III (SGB III) does not remain without consequence if an entitlement to unemployment benefit II (Alg II) has arisen in the meantime (Valgolio in Hauck/Noftz, SGB II, Section 31, marginal note 128, as of July 2007). In addition, Section 31 Paragraph 4 Number 3 Letter b of the SGB II stipulates the corresponding application of Section 144 of the SGB III to persons who have not yet acquired an entitlement to unemployment benefit II but meet the requirements for the commencement of a disqualification period. The consistent justification for including both groups of people lies in the fact that, due to their accumulated periods of insurance in the unemployment insurance scheme, they are in a social insurance relationship with the Federal Employment Agency (BA) as the responsible body under Book III of the German Social Code (SGB III). The BA, in turn, typically protects against the risk of unemployment, the occurrence of which is the insured person's own fault or in whose resolution they fail to cooperate adequately (see in detail Federal Social Court [BSG], judgment of December 17, 2009 – B 4 AS 20/09 R – paragraphs 24 et seq. with further references). Therefore, those employees are included who are in a compulsory insurance relationship for the qualifying period for entitlement to unemployment benefits under Section 123 of Book III of the German Social Code (SGB III) as employees receiving remuneration under Section 25 Paragraph 1 of Book III of the German Social Code (SGB III) and who are not exempt from insurance as persons in marginal employment (Section 27 Paragraph 2 of Book III of the German Social Code (SGB III) in conjunction with Section 8 Paragraph 1 of Book IV of the German Social Code (SGB IV)). If only employment exempt from social security contributions exists, there is no social security relationship with the Federal Employment Agency (BA) established through contributions or the accumulation of an entitlement to unemployment benefits, and thus no connection between the person in need of assistance and the legal framework of Book III of the German Social Code (SGB III) (see also regarding the teleological reduction of the waiting period provision of Section 144 Paragraph 1 Sentence 2 No. 1 SGB III to employment relationships subject to social security contributions: Henke/Eicher in Eicher/Schlegel, SGB III, Section 144, marginal note 108a, as of November 2009; Curkovic in NK-SGB III, 3rd edition 2008, Section 144, marginal note 16; Valgolio in Hauck/Noftz, SGB III, Section 144, marginal note 31, as of March 2007).
juris.bundessozialgericht.de
2. Decisions on basic income support for job seekers (SGB II)
LSG Bayern L 8 AS 136/10 B ER , decision of 12.04.2010
A household unit pursuant to Section 7 Paragraph 3 Number 3a of the German Social Code, Book II (SGB II) can also exist in the case of a physical separation (see Spellbrink in Eicher/Spellbrink Commentary on the SGB II, 2nd edition 2007, marginal note 41 to Section 7; see also Federal Social Court (BSG), judgment of February 18, 2010, B 4 AS 49/09 R).
www.sozialgerichtsbarkeit.de
Note: Federal Social Court (BSG), judgment of 18 February 2010, B 4 AS 49/09 R
When a benefit recipient and their spouse live separately after marriage, a household community exists, because the German Social Code, Book II (SGB II), generally follows the principles developed for the family law concept of separation, according to which separation is to be denied in situations like the present one, unless an intention to separate is documented. The structure of the SGB II does not imply that it is based on a different concept of separation that would allow for the dispensation of establishing an intention to separate as defined by family law jurisprudence ( Tacheles case law ticker 18/2010).
LSG Berlin L 5 AS 457/10 B ER , decision of 06.05.2010
In cases where the facts are unclear and cannot be clarified in preliminary legal proceedings, it is regularly appropriate and sufficient, when issuing a preliminary order for benefits to secure subsistence under the German Social Code, Book II (SGB II), to consider only 80% of the standard benefit after weighing the consequences.
The 20% reduction of the standard benefit corresponds approximately to the amount of the savings allowance for one-off needs included in the standard benefit (see the detailed account of the legislative history in the Federal Constitutional Court, judgment of February 9, 2010 – 1 BvL 1/09, 1 BvL 3/09, 1 BvL 4/09, para. 53 et seq.). Accordingly, 80% of the standard benefit is sufficient to meet current needs and avert hardship (for a reduction of up to 30%: Berlin-Brandenburg Higher Social Court, decision of February 2, 2006 – L 14 B 1157/05 AS ER; for a reduction of 20%: Baden-Württemberg Higher Social Court, decision of January 29, 2007 – L 7 SO 5672/06 ER-B-).
Note: LSG Berlin L 5 AS 797/10 B ER , decision of 19.05.2010
If additional benefits under the German Social Code, Book II (SGB II) amounting to 14% of the standard benefit are claimed by way of an interim injunction, there is generally no ground for an injunction.
LSG Berlin L 5 AS 797/10 B ER , decision of 19.05.2010
In the case of claims for benefits, Section 12 Paragraph 2 No. 3 of the German Social Code, Book II (SGB II), as amended by the Social Insurance Stabilisation Act of April 14, 2010, also applies to periods prior to the entry into force of the Social Insurance Stabilisation Act.
LSG Berlin L 5 AS 557/10 B ER , decision of 02.06.2010
According to Section 22 Paragraph 5 of the German Social Code, Book II (SGB II), debts can be assumed if this is justified to secure accommodation or to alleviate a comparable emergency, and provided that benefits for accommodation and heating are being provided. According to Sentence 2, the debts should be assumed if this is justified and necessary, and if homelessness would otherwise be imminent. As the Berlin Social Court already concluded, the Senate also assumes that the assumption of the debts is not justified in this case. The term "justified" is a legal element that, as an indeterminate legal term, is subject to full judicial review (see Schmidt in: Oestreicher, SGB XII/SGB II, as of March 2009, Section 22 SGB II, marginal note 146).
Whether the applicant can even claim the assumption of rent arrears under Section 22 Paragraph 5 of the German Social Code, Book II (SGB II), although he only receives a subsidy for the uncovered costs of accommodation and heating under Section 22 Paragraph 7 of the SGB II (affirming this, for example, in the decision of the Berlin-Brandenburg State Social Court of June 5, 2009 – L 14 AS 748/09 B ER), can remain undecided, because in the present case the assumption of the rent arrears is in any event not justified, as it is not suitable for permanently preserving the apartment for the applicant.
In the case of a preliminary injunction seeking an assurance pursuant to Section 22 Paragraph 2 Sentence 1 of the German Social Code, Book II (SGB II), there is generally no ground for an injunction within the meaning of Section 86b Paragraph 2 Sentence 2 of the German Social Courts Act (SGG) if the costs of the new accommodation are lower than those of the old apartment.
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LSG Berlin L 5 AS 425/10 B ER, decision of 05.05.2010
Costs for roof repairs are to be covered in accordance with Section 22 Paragraph 1 of the German Social Code, Book II (SGB II), for a self-occupied, reasonable house.
Such costs are to be allocated by an assessment of 11% annually in accordance with Section 559 of the German Civil Code (BGB) or can be demonstrated by the duration of the previous benefit receipt.
LSG NRW L 6 AS 432/10 B ER and L 6 AS 433/10 B , decisions of 14.06.2010 , legally binding
Back payments of separation maintenance are considered income during the receipt of ALG II (unemployment benefit II), debt repayment does not preclude it from being considered income.
Debt repayment does not preclude its being counted as income, because, firstly, Section 11 Paragraph 2 of the German Social Code, Book II (SGB II) definitively regulates which items must be deducted from income before it is subject to distribution, and secondly, income must primarily be used to secure subsistence. This applies even if the benefit recipient is thereby unable to fulfill existing contractual obligations (Federal Social Court, Judgment of September 30, 2008, B 4 AS 29/07).
If the person in need of assistance spends income received prematurely, the income must nevertheless be taken into account in the respective partial amounts until the end of the period deemed appropriate under Section 2 Paragraph 4 of the Regulation on Unemployment Benefit II (see also Higher Social Court of North Rhine-Westphalia, Judgment of April 2, 2009, L 9 AS 58/07; Federal Social Court, Judgment of September 30, 2008, B 4 AS 29/07 R; Bavarian Higher Social Court, Judgment of April 13, 2007, L 7 AS 309/06; Mecke in Eicher/Spellbrink, SGB II, 2nd edition 2008, Section 11, marginal note 66).
Brühl (LPK-SGB II, 3rd ed. 2009, § 11 para. 16) seems to hold a different view; SG Bremen, judgment of 15 May 2008, S 3 V 1349/08 (incorrectly listed as VG in juris and LPK-SGB II); apparently also LSG Berlin-Brandenburg, decision of 27 November 2008, L 14 B 1818/08 AS ER; Geiger, info also 2009, 20, 23). This follows both from the wording and systematic structure of the statutory provisions as well as from the purpose of the law.
According to Section 11 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), all receipts in cash or in kind (except for the expressly stipulated exceptions) must be taken into account as income. According to the established case law of the Federal Social Court, income is generally anything of value that someone receives after submitting an application, whereby the actual receipt is decisive (Federal Social Court, Judgment of July 30, 2008, B 14 AS 26/07 R; Judgment of September 30, 2008, B 4 AS 29/07 R). The items that can be deducted from income are conclusively regulated by Section 11 Paragraph 2 of the German Social Code, Book II (SGB II) and Section 13 Paragraph 1 of the SGB II in conjunction with the Regulation on Unemployment Benefit II (Alg II-V) (Federal Social Court (BSG), Judgment of September 30, 2008, B 4 AS 29/07 R, para. 19 = BSGE 101, 291-301; Bavarian State Social Court (Bay. LSG), Judgment of April 13, 2007, L 7 AS 309/06, para. 20). The aforementioned provisions do not provide for a deduction for debts or loan repayments, so their consideration when assessing eligibility for unemployment benefit II under Section 19 of the SGB II is not possible. Income must therefore be used primarily to secure the livelihood of the person in need of assistance or the members of a household receiving benefits, even if this prevents the person in need of assistance from fulfilling existing contractual obligations (Federal Social Court, judgment of 30 September 2008, B 4 AS 29/07 R para. 19; Higher Social Court Berlin-Brandenburg, decision of 21 June 2006 – L 29 B 314/06; Higher Social Court North Rhine-Westphalia, judgment of 14 February 2007, L 12 AS 12/06; already also Federal Administrative Court, judgment of 27 January 1965, VC 32.64 para. 15 regarding the then social assistance under the Federal Social Assistance Act). The German Social Code, Book II (SGB II), does not permit the offsetting of assets and liabilities when assessing need (Federal Social Court, judgment of April 15, 2008, B 14 AS 27/07 R Rn 44), nor does it allow for consideration of the premature consumption of available funds, e.g., through debt repayment.
The fact that existing debts (and their repayment) must generally be disregarded when assessing eligibility for assistance corresponds to the principle underlying the German Social Code, Book II (SGB II), that state welfare is merely subsidiary and should only intervene once the person in need has exhausted the resources available to them (for covering their living expenses). This also applies if the recipient of benefits uses income received to pay off debts – as in this case – contrary to the requirement to first secure their own livelihood before satisfying their creditors (Federal Social Court [BSG], judgment of September 30, 2008, B 4 AS 29/07 R, para. 19; judgment of April 15, 2008, B 14 AS 27/07 R, para. 44). It is irrelevant whether there are special reasons that make the repayment of private debts appear urgent.
If an applicant cannot be considered in need of assistance within the meaning of Section 9 of the German Social Code, Book II (SGB II), according to the legal provisions of Section 19 SGB II in conjunction with Sections 11 and 13 SGB II in conjunction with the Regulation on Unemployment Benefit II (Alg II-V), but nevertheless lacks the necessary means of subsistence, the person who is in fact in need of assistance is not left without protection under the concept of the SGB II. Rather, there is the possibility of receiving a supplementary loan pursuant to Section 23 Paragraph 1 SGB II (see Higher Social Court of North Rhine-Westphalia, decision of February 3, 2010, L 12 AS 91/10 B).
The provisions of Sections 31(4) and 34 of the German Social Code, Book II (SGB II) do not lead to a different conclusion. In particular, they do not establish a right to receive full basic income support benefits, subject only to a reimbursement claim under Section 34 SGB II, in the event of premature depletion of a one-off income. As stated above, the sole legal basis for granting basic income support benefits as a subsidy is Section 19 SGB II, and for granting these benefits as a loan, Section 23 SGB II. Section 31(4) SGB II does not provide for an entitlement on the part of the recipient of assistance, but rather the possibility of sanctioning a recipient of assistance through benefit reductions. Section 34 SGB II, on the other hand, only establishes a reimbursement claim by the benefit provider against the recipient of assistance, but not conversely, an entitlement by the recipient of assistance to the provision of benefits.
Note: North Rhine-Westphalia State Social Court L 19 B 327/09 AS, 23.03.2010 legally binding, decision
When allocating a one-off payment for consideration over a longer period, it is disputed whether and under what conditions it should be taken into account that the income is no longer actually available to cover needs, for example, because debts have been repaid. One view rejects this consideration, arguing that otherwise the person in need would be able to retroactively change the income assessment in their favor and refer the authorities to a claim under Section 34 Paragraph 1 of the German Social Code, Book II (SGB II), which is not necessarily enforceable (see Higher Social Court of North Rhine-Westphalia, judgment of April 2, 2009 – L 9 AS 58/07; Mecke in Eicher/Spellbrink, SGB II, 2nd edition, Section 11, marginal note 66). On the other hand, the view is held that an offset ends when the corresponding funds, on whose consumption the person in need depends, are no longer actually available (see LSG Berlin-Brandenburg, decision of 19.11.2007 – L 10 B 1845/07 AS ER – , case law ticker of Tacheles 13/2010).
State Social Court of North Rhine-Westphalia L 6 B 129/09 AS ER 30.03.2010 legally binding, decision
Income used to offset an overdrawn account must be taken into account as reducing the need for assistance (BSG , judgment of 30.09.2008,- B 4 AS 29/07 R – , case law ticker from Tacheles 14/2010).
State Social Court of North Rhine-Westphalia L 12 AS 91/10 B 03.02.2010 legally binding, decision
Even if the claim is assigned to the tax office, income tax refunds are considered income upon receipt. The fact that the recipient uses the income received, contrary to the requirement to secure their own livelihood before satisfying their creditors, does not change the fact that it is considered income and therefore does not affect the legality of the income crediting (Federal Social Court, Judgment of 30 September 2008 – B 4 AS 29/07 R – para. 19; Higher Social Court of North Rhine-Westphalia, Judgment of 2 April 2009 – L 9 AS 58/07 – , Case Law Ticker from Tacheles 07 KW / 2010).
LSG Baden-Württemberg, Judgment of 22.06.2010 – L 13 AS 678/10
Hartz IV recipients are not entitled to reimbursement of costs for student exchanges with the USA
Students receiving unemployment benefit II (Hartz IV) are not entitled to reimbursement of the costs of a student exchange program if only a small number of specially selected students participate. This was the ruling of the Baden-Württemberg State Social Court in the case of a high school student who had attended a high school in Arizona, USA, as part of an exchange program. According to the court, recipients of unemployment benefit II are indeed entitled to reimbursement of the costs of school trips. However, this particular trip did not qualify as such, the court ruled (Judgment of June 22, 2010, Case No.: L 13 AS 678/10).
A leased vehicle is not to be considered an eligible asset
Because it is to be classified as business assets, and it is also not usable in the sense that a monetary benefit would arise upon termination of the lease agreement, which would eliminate the applicants' need for assistance.
3. Decisions on social assistance (SGB XII)
LSG NRW L 20 SO 19/10 , decision of 18.06.2010
Costs incurred by the children themselves in connection with exercising visitation rights cannot be claimed by the father from the social welfare agency.
In accordance with the jurisprudence of the Federal Social Court (judgment of November 7, 2006 – B 7b AS 14/06 R), a distinction must be made between the father's own claims and those of his children. The father should be advised to reach an agreement with the children's mother, if necessary, that she transfer a portion of the income intended for the children to him. The travel and living expenses incurred by the father's two children during their visits with him constitute a need arising solely from their individual circumstances. In this respect, the only conceivable benefit is an independent entitlement to social assistance for the children under Section 73 of the German Social Code, Book XII (SGB XII) for their travel expenses and under Sections 27 and 28 of the SGB XII for their living expenses during their stay with their father.
Note: Federal Social Court (BSG), judgment of 2 July 2009, – B 14 AS 54/08 R-
In cases where separated parents share custody, the parent with visitation rights does not have sole representation in social court proceedings. If the parents cannot reach an agreement, an application must be filed with the family court to transfer the decision-making authority.
If a child becomes legally competent during the social court proceedings, they can approve the proceedings conducted so far. Any limitations on the child's legal capacity can only be declared jointly by their legal guardians.
4. Relevant topics from the German Social Code, Book II (SGB II) and Book XII (SGB XII) – appeals pending before the Federal Social Court (BSG)
State Social Court of North Rhine-Westphalia L 20 SO 18/09 , Judgment of 19 April 2010 , Appeal against this pending under – B 8 SO 18/10 R –
The claim for additional heating and operating costs is to be covered as a benefit under Section 29 of the German Social Code, Book XII (SGB XII), even if it has already been paid by the person in need and was applied for late.
The law does not provide for a limitation period for asserting claims for additional benefits. In particular, no such period is contained in Section 44 Paragraph 1 Sentence 2 of the German Social Code, Book XII (Case Law Report from Tacheles 23/2010).
