Federal Social Court (BSG), Judgment of 22 March 2010 – B 14 AS 81/08 R
Growth and wear-and-tear-related needs in children are not considered special needs within the meaning of Section 23 Paragraph 3 of the German Social Code, Book II (SGB II)
A comparison with Section 20 Paragraph 1 of the German Social Code, Book II (SGB II) already shows that Section 23 Paragraph 3 SGB II is to be understood as needs-based (see already BSGE 101, 268 = SozR 4-4200 § 23 No. 2, paragraph 19 in each case, and judgment of August 20, 2009 – B 14 AS 45/08 R-, paragraph 14). With regard to initial clothing provision, the decisive factor is whether a need for clothing arises for the first time due to a special circumstance. In contrast, the costs for the ongoing purchase and maintenance of clothing are expressly covered by the standard benefit. While it is true that with each growth spurt, a need for a specific item of clothing in a specific size arises for the first time in children, the necessity of replacing clothing items frequently, both due to growth and increased wear and tear, is nevertheless part of the regular needs of children. A child's clothing needs to be replenished regularly, albeit more frequently than for adults, depending on which item of clothing they can no longer wear. The additional expenses incurred due to growth and wear and tear, unlike those for adults, are considered a child-specific, regular need and are covered by the standard benefit rate (Bender in Gagel, SGB III with SGB II, as of June 2009)
2. Decision of the Federal Social Court of 23 March 2010 on social assistance (SGB XII)
If elderly people live in an apartment that is somewhat too expensive and paid for by the social welfare office, they cannot generally be asked to move.
Because the activity radius of older people is known to decrease, housing and living environment become increasingly important for the physical and mental well-being of the elderly (Second Report on the Situation of the Older Generation in the Federal Republic of Germany: Housing in Old Age, 1998, BT-Drucks 13/9750, p. 17)<Bundesaltenbericht 1998> Since the aging process is accompanied by a decrease in adaptability and an increase in susceptibility to disease, older people are typically less mobile than the average population (Federal Report on the Elderly 1998, pp. 93 and 198).
These sociological findings must (in principle) also be taken into account when assessing the (subjective) reasonableness of moving to another apartment; however, this does not apply without restrictions and without considering all the circumstances of the individual case.
3. Decisions on basic income support for job seekers (SGB II)
The comparison of operating expenses and income according to Section 3 of the German Social Code, Book II (SGB II) no longer complies with the principles of tax law, as is readily apparent from the wording of Section 3 Paragraph 2 of the SGB II in the version applicable since January 1, 2008 (see Higher Social Court of Saxony-Anhalt, decision of June 26, 2009 – L 5 AS 143/09 B ER, para. 77; Brühl in LPK-SGB II, Section 11, para. 102).
There are no constitutional concerns in this respect (see Saxon State Social Court, decision of December 18, 2009 – L 3 B 297/08 AS-ER; p. 8 of the transcript). This provision also stipulates that only the (projected) necessary expenses actually incurred may be deducted from the (expected) business income, meaning that each expense must at least be examined for plausibility as to whether it is business-related within the meaning of Section 3 Paragraph 2 of the Second Book of the Social Code (SGB II). This examination is independent of whether the expense is later claimed and recognized for tax purposes (see Saxony-Anhalt State Social Court, decision of June 26, 2009, loc. cit., para. 78).
++ Note: Proceeds from the sale of commercially used motor vehicles received after application is considered income within the meaning of Section 11 Paragraph 1 Sentence 1 of the German Social Code, Book II (LSG NRW L 19 AS 582/10 B, decision of July 7, 2010, case law ticker from Tacheles 30/2010).
3.2 – Saxon State Social Court L 7 AS 175/10 B ER , decision of 14 July 2010
The guarantee of cost coverage after relocation up to the age of 25 generally only applies to benefit recipients
Sentences 1 to 3 of Section 22 Paragraph 2a do not apply to persons who, at the time of their (first) move out of their parents' household, were not members of a benefit unit within the meaning of Section 7 Paragraph 3 of the German Social Code, Book II (SGB II) and were receiving benefits. This is already evident from the provision in Section 22 Paragraph 2a Sentence 4 of the SGB II, which would be superfluous if the legislator had intended to subject all employable persons who have not yet reached the age of 25 to the consent requirement of Section 22 Paragraph 2a of the SGB II. In any case, such an intention of the legislator cannot be inferred from the recommendation for a resolution and the report of the Committee on Labour and Social Affairs of 15 February 2006 (BT-Drucks. 16/688) (cf. in detail and with merit LSG Niedersachsen-Bremen, decision of 6 November 2007 – L 7 AS 626/07 ER; similarly Berlit in Münder, Sozialgesetzbuch, Lehr- und Praxiskommentar, § 22 RdNr. 90).
++ Note: Compare LSG Lower Saxony-Bremen, decision of 06.11.2007 – L 7 AS 626/07 ER- , (Case Law Ticker of Tacheles 50/2009).
++ Note: Saxon State Social Court L 3 AS 128/08, judgment of 02.07.2009, appeal pending under – B 14 AS 62/10 R-(Case Law Ticker from Tacheles 29/2010)
Are the provisions of Sections 22(2a) and 20(2a) of the German Social Code, Book II (SGB II), regarding the requirement of prior approval for the relocation of persons under the age of 25, applicable to all persons under 25, regardless of whether they were in need of assistance when moving into their own apartment or not, and regardless of whether they were receiving benefits under the SGB II at that time or not? (B 14 AS 62/10 R).
The requirement of prior approval for the relocation of persons under 25 years of age only applies to persons who have applied for or are receiving benefits under the German Social Code, Book II (SGB II) at the time of the relocation (Saxony State Social Court L 3 AS 128/08, judgment of 02.07.2009, (Case Law Ticker of Tacheles 46/2009)).
3.3 – North Rhine-Westphalia State Social Court L 12 AS 807/10 B ER and L 12 AS 808/10 B , decisions of 16.06.2010
The state environmental bonus is a designated income within the meaning of Section 11 Paragraph 3 No. 1a of the German Social Code, Book II (SGB II), which is not to be taken into account as income within the meaning of Section 11 Paragraph 1 of the German Social Code, Book II (SGB II) in the context of benefit receipt under the German Social Code, Book II (SGB II).
According to Section 11 Paragraph 3 Number 1a of the German Social Code, Book II (SGB II), receipts are not to be considered income insofar as they are earmarked for a purpose other than the benefits under SGB II and do not improve the recipient's situation to such an extent that benefits under SGB II would no longer be justified. Section 11 Paragraph 3 Numbers 1a and 1b of SGB II consolidate the previous provisions of Section 77 Paragraph 1 Sentence 1 of the Federal Social Assistance Act (BSHG) and Section 78 of the BSHG. These correspond to Sections 83 Paragraph 1 and 84 Paragraph 1 of the German Social Code, Book XII (SGB XII). The purpose of Section 11 Paragraph 3 No. 1a of the German Social Code, Book II (SGB II) is to prevent the specific purpose of a benefit from being undermined by consideration within the framework of the SGB II, and to prevent duplicate benefits from being provided for an identical purpose (Federal Social Court, Judgment of December 6, 2007 – B 14/7b AS 62/06 R – Rn. 24).
A benefit is considered earmarked if it has a specific purpose – based on public or private law. Section 11 Paragraph 3 No. 1a of the German Social Code, Book II (SGB II) therefore covers income that serves a purpose other than maintenance or integration (cf. Section 1 Paragraph 2 SGB II) and whose purpose would be thwarted if it were offset against other benefits (Hessian State Social Court, decision of January 15, 2010 – L 6 AS 515/09 B ER -).
3.4 – North Rhine-Westphalia State Social Court L 7 AS 84/10 B, decision of 22 July 2010
Owning real estate in Turkey does not automatically preclude eligibility for assistance under Section 9 of the German Social Code, Book II (SGB II)
According to Section 9 Paragraph 4 of the German Social Code, Book II (SGB II), anyone who is unable to immediately realize assets that must be taken into account is also considered to be in need of assistance.
This is not ruled out from the outset with regard to the property in Turkey. In the appeal proceedings, the respondent, pursuant to Section 23 Paragraph 5 Sentence 1 of the German Social Code, Book II (SGB II), also granted the applicant benefits to secure her livelihood in the form of a loan under the SGB II by decision dated May 27, 2010.
The substitute custodial sentence under Section 43 of the German Criminal Code (StGB) is also a judicially ordered deprivation of liberty under Section 7 Paragraph 4 Sentence 2 of the German Social Code, Book II (SGB II)
No exclusion from benefits under the German Social Code, Book II (SGB II), when serving a substitute custodial sentence under Section 43 of the German Criminal Code.
++ Note: Compare the BA's notes on Section 7 of the German Social Code, Book II (see page 34, marginal note 7.37b) - exclusion from benefits also applies in the case of a substitute custodial sentence under Section 43 of the German Criminal Code
3.6 – Baden-Württemberg State Social Court L 3 AS 3552/09, Judgment of 14 July 2010, Appeal allowed
Section 7 paragraph 4a of the German Social Code, Book II (SGB II) does not apply to recipients of social assistance who are not capable of working
While Section 7 Paragraph 4a of the German Social Code, Book II (SGB II) stipulates that benefits under this book are not granted to anyone who, without the consent of their personal contact person, is outside the area defined in the accessibility order of October 23, 1997 (ANBA 1997, 1685), as amended by the order of November 16, 2001 (ANBA 2001, 1476), and the other provisions of this order apply accordingly, this provision applies only to those entitled under Section 7 Paragraph 1 Sentence 1 of the SGB II and not to recipients of social assistance.
According to its wording alone, the provision also applies to recipients of social assistance, since it refers to all benefits under the German Social Code, Book II (SGB II) (see also Spellbrink in Eicher/Spellbrink, SGB II, § 7 Rn. 87).
The legislative history of this provision also argues against its applicability to recipients of social assistance. Paragraph 4a was inserted into the German Social Code, Book II (SGB II) by the Act on the Further Development of Basic Income Support for Job Seekers (FortentwicklungsG) of July 20, 2003, effective August 1, 2006. The explanatory memorandum to the Act (Bundestag printed matter 16/1696, p. 24) states that violations by an employable person in need of assistance of the regulations concerning a stay away from home, as previously stipulated in the integration agreement, could only be sanctioned by a reduction in benefits pursuant to Section 31 of the SGB II. Particularly in the case of a longer stay abroad, this was deemed insufficient to motivate the person in need of assistance to return to Germany and actively participate in their integration into the labor market. Therefore, this regulation was intended solely for employable persons in need of assistance with regard to their integration into the labor market. The legislative intent does not support extending the scope of the regulation to recipients of social assistance.
Furthermore, the purpose and intent of the regulation argue against applying the standard to recipients of social assistance, since, unlike recipients of unemployment benefit II, the existence of employability is not (and cannot be) a prerequisite for the granting of benefits for these recipients. The provision, which declares the availability requirement applicable to recipients of unemployment benefit III (SGB III) to recipients of unemployment benefit II (SGB II), is intended to ensure effective job placement services. It aims to guarantee availability for the purpose of reintegration into the workforce (Brühl/Schoch in LPK-SGB II, § 7 Rn. 110). However, these labor market policy objectives do not apply to recipients of social assistance.
Finally, the systematic position of the standard in Section 7 of the German Social Code, Book II (SGB II), which defines the requirements for benefits and, in paragraph 1, lists among other things the completion of the 15th year of age and the existence of employability as requirements for benefits, argues against its application.
Accordingly, the Federal Employment Agency's service instructions on the SGB II state that granting approval for absences from the place of residence of persons who have not yet reached the age of 15 is unnecessary (DA 7.57).
For recipients of social assistance, the only requirement is that they have their habitual residence within the jurisdiction of the benefit provider (§ 36 SGB II). According to § 30 para. 3 sentence 2 of the First Book of the Social Code (SGB I), habitual residence is established where someone resides under circumstances that indicate they are not merely staying there temporarily. Plaintiffs 3 to 6 therefore had their habitual residence in Karlsruhe. Holiday trips abroad do not constitute abandonment of habitual residence (Schoch in LPK-SGB II, § 36 Rn. 12).
++ Note: Compare to the decisions of the North Rhine-Westphalia State Social Court L 7 B 50/09 AS and L 7 B 51/09 AS, dated 24 August 2009 (Case Law Ticker from Tacheles 36/2009)
On the applicability of the availability order in the German Social Code, Book II (SGB II).
According to Section 7 Paragraph 4a of the German Social Code, Book II (SGB II), no benefits under the SGB II will be granted to anyone who, without the consent of their personal contact person, is outside the area defined in the accessibility order (EAO, version of 16.11.2001) in terms of time and location. Whether this exclusion from benefits applies only to employable persons in need of assistance (Löns in Löns/Herold-Tews, SGB II, 2nd ed. 2009, § 7 para. 47; Brühl/Schoch in LPK-SGB II, 2nd ed. 2007, § 7 para. 91) or also to incapacitated members of a household receiving benefits or all persons for whom taking up employment is unreasonable (e.g., pupils) (Spellbrink in Eicher/Spellbrink, Commentary on SGB II, 2nd ed. 2008, § 7 para. 87; see also Loose, in GK-SGB II, as of January 2009, § 7 paras. 103, 104; for a case-by-case decision see BA, Implementation Guidelines on § 7, paras. 7.57 and 7.58) has not yet been definitively settled by the highest court. Legal aid must also be granted in cases involving a legal question requiring clarification (Leitherer in Meyer-Ladewig/Keller/Leitherer, Commentary on the SGG, 9th edition 2008, § 73a Rn. 7b)
Although the person receiving assistance had been staying outside the local area and without the approval of the job center, the North Rhine-Westphalia State Social Court emphasized that her absence fell within a period in which she could invoke the unreasonableness of taking up employment due to an employment prohibition under Section 3 Paragraph 2 (six weeks before childbirth) and Section 6 Paragraph 1 of the Maternity Protection Act (until the end of eight weeks), as well as the need to care for her child pursuant to Section 10 Paragraph 1 Number 3 of the German Social Code, Book II (SGB II).
3.7 – North Rhine-Westphalia State Social Court L 7 B 142/09 AS , decision of 13 July 2010
Granting of legal aid for the unresolved legal question before the highest court as to whether a seminar on Muslim theologians at the Association of Islamic Cultural Centers qualifies as an educational measure within the meaning of Section 15 of the German Social Code, Book Two (SGB II).
The granting of legal aid is therefore warranted in this case, as there are already decisions from social courts and the Düsseldorf Finance Court that affirm the (vocational) training character of the seminar attended by the plaintiff (SG Duisburg, judgment of 31.01.2001 – S 4 KN 122/00; SG Dortmund, judgment of 15.08.2008 – S 10 (28) AS 487/07; Finance Court Düsseldorf, judgment of 07.04.2005 – 14 K 5073/03 Kg).
3.8 – Hamburg State Social Court L 5 AS 67/07 , Judgment of 24 June 2010
The SGB II agency does not have the authority to question the decision of the immigration authority if there is an explicit residence-related prohibition on gainful employment, but must comply with it (cf. Valgolio, in: Hauck/Noftz, SGB II, § 7 Rn. 31a, as of April 2008; A. Loose, in: Hohm, SGB II, § 7 Rn. 32.18, as of Aug. 2008).
3.9 – Augsburg Social Court S 15 AS 1541/09 , Judgment of 25 March 2010 , Bavarian State Social Court L 16 AS 250/10 NZB of 21 May 2010
In the case of a delayed payment of wages, the basic allowance pursuant to Section 11 Paragraph 2 Sentence 2 of the German Social Code, Book II (SGB II) may only be deducted once
The inclusion of this income in the month of receipt is based on Section 2 Paragraph 2 of the Ordinance on the Calculation of Income and the Disregard of Income and Assets for Unemployment Benefit II/Social Assistance (Alg II – V). The retroactively paid income also constitutes recurring income. Recurring income is defined as income based on the same legal grounds and received regularly; in the case of one-off payments, the transaction is limited to a single payment. The classification as recurring income is not affected by whether the payment is the last or first of a typically recurring payment (Federal Social Court – BSG – judgment of July 30, 2008 – B 14 AS 43/07 R). In this ruling, the BSG also clarified that the income is taken into account in the month of receipt regardless of the period for which this income is retroactively paid.
3.10 – SG Duisburg S 3 AS 2022/10 ER , decision of 22.07.2010
For a single person, up to 50 square meters are permitted in Essen from 01.1.2010 (cf. SG Aachen S 6 AS 205/10 ER, decision of 25.02.2010)
Source: Lawyer Jan Häußler – Article published in the Unemployed Forum Germany by Willy V
++ Note: Compare SG Duisburg, S 35 AS 1592/10, decision of 27.04.2010 (case law ticker from Tacheles 18/2010); Social Court Duisburg S 5 AS 1118/10 ER , decision of 06.04.2010 and SG Aachen S 6 AS 205/10 ER, decision of 25.02.2010 (case law ticker from Tacheles 16/2010).
3.11 – Social Court Neuruppin S 26 AS1032/10 ER, Decision of 29.07.2010
The fact that the permanent use of a motorhome or caravan is inadmissible under building law or public order law is not relevant for the entitlement to reimbursement of accommodation costs.
The standard system of the German Social Code, Book II (SGB II), focuses on the actual housing need, which in individual cases can also be met by using a mobile home. This applies at least as long as the use is not actually prohibited by the building authority or the public order authority (cf. Federal Social Court, judgment of June 17, 2010, – B 14 AS 79/09 R-).
4. Decisions on social assistance (SGB XII)
State Social Court of Saxony-Anhalt L 8 SO 10/09 B , decision of 10.03.2010
No assumption of rent arrears under Section 34 of the German Social Code, Book XII (SGB XII) after commencement of imprisonment if the tenancy agreement had already been terminated – No entitlement to assistance in overcoming social difficulties under Sections 67 and 68 of the German Social Code, Book XII (SGB XII)
A claim for the assumption of rent and energy debts cannot be derived from Section 34 Paragraph 1 of the German Social Code, Book XII (SGB XII). According to this provision, debts can only be assumed if this is justified to secure accommodation or to alleviate a comparable emergency. They should be assumed if this is justified and necessary, and if homelessness would otherwise be imminent.
This is not about securing the apartment for a period that is not merely temporary. The scope of application of the regulation is not met. The person in need of assistance did not use the apartment as accommodation during the period in question; the tenancy had been terminated. The purpose of assuming rent arrears is not to relieve the person seeking assistance of claims by third parties (State Social Court (LSG) for the State of North Rhine-Westphalia, decision of June 30, 2005, L 20 B 2/05 SO ER).
While short-term absences such as holidays or hospital stays are permissible, if – as in this case – the need for accommodation is not only temporarily covered by other means, for example through serving a prison sentence or longer-term inpatient care, there is no entitlement to benefits under Section 29 of the German Social Code, Book XII (see Berlit in: LPK-SGB XII, 8th ed. 2007, Section 29, marginal note 16).
The claimed reimbursement of rent and energy debts, as well as the removal costs, does not arise from an entitlement to assistance in overcoming social difficulties pursuant to Sections 67 and 68 of the German Social Code, Book XII (SGB XII). According to these provisions, benefits are to be provided to individuals whose particular life circumstances are associated with social difficulties if they are unable to overcome these difficulties on their own. These benefits include all measures necessary to avert, eliminate, or mitigate the difficulties, or to prevent their worsening, in particular counseling and personal support for the beneficiaries, as well as measures to maintain and obtain housing.
In this case, with regard to the disputed rent and energy debts as well as clearing costs, there are no special living conditions associated with social difficulties within the meaning of Section 67 Sentence 1 SGB XII.
The principle of immediacy, enshrined in Sections 5(1) and 18 of the German Social Code, Book XII (SGB XII), dictates that social assistance should only be provided when it is necessary to avert an immediate emergency. The granting of social assistance is fundamentally dependent on a current need for assistance (see Federal Social Court [BSG], Judgment of September 29, 2009, B 8 SO 16/08 R, para. 13). Therefore, for a claim to assistance to be valid, social difficulties must already exist or be imminent. Accordingly, an entitlement to benefits under Section 67 of the SGB XII requires a need for assistance at the time of application. A concrete need for assistance must arise from the interplay of the applicant's social circumstances and individual difficulties
While case law allows for the exceptional granting of assistance under Section 67 of the German Social Code, Book XII (SGB XII), not only after imprisonment but also preventively if it becomes necessary during the period of incarceration, this applies to cases of short-term imprisonment where the assumption of rent is necessary to maintain the previously occupied accommodation (see Higher Social Court for the State of North Rhine-Westphalia, decision of May 19, 2005, L 9 B 9/05 SO ER; decision of June 30, 2005, L 20 B 2/05 SO ER). However, the present case is different, as the person in need of assistance terminated her lease in due time.
++ Note: Compare to the decision of the Berlin-Brandenburg State Social Court, L 23 SO 46/10 B ER, dated May 4, 2010 (Case Law Ticker of Tacheles 22/2010), according to which
Ongoing and future rental costs during incarceration can be covered by the social security provider in accordance with Sections 67 and 68 of the German Social Code, Book XII (see decision of the Senate of 5 October 2009 – L 23 SO 109/09 B PKH – ).
++ Note: See Bavarian State Social Court L 18 SO 111/09 B ER, decision of 17.09.2009 (Case Law Ticker from Tacheles 22/2010).
5. Note on: Federal Social Court (BSG), Judgment of 17 December 2009, – B 4 AS 20/09 R-
Author: Cornelia Gebhardt, Attorney at Law and Specialist in Social Law
Source: jurisPR-SozR 15/2010 Note 1
Publication date: July 29, 2010
Reduction of unemployment benefit II if an offered training measure is not attended
Guiding principle
If the behavior required of the person in need of assistance is already regulated in Section 31 Paragraph 1 of the German Social Code, Book II (SGB II), and there is no relationship between the person in need of assistance and the legal framework of the German Social Code, Book III (SGB III), then the basic income support provider is not entitled to reduce unemployment benefit II due to the existence of the conditions for the commencement of a sanction period (Section 31 Paragraph 4 No. 3 Letter b SGB II).
