1. Federal Constitutional Court, decision of 2 September 2010 – 1 BvR 1974/08 –
Unsuccessful constitutional complaint against the denial of legal aid due to sufficient self-help options, because the ALG II benefit recipient had previously also challenged her dispute against the reduction of the standard benefit during her hospital stay on her own.
However, the need for legal advice cannot always be denied simply by referring to a parallel proceeding, as this is constitutionally permissible. The very question of whether a parallel case exists can justify the need for legal advice, especially for those without legal expertise.
www.bundesverfassungsgericht.de
2. Decision of the Federal Social Court of 19 August 2010 on basic income support for job seekers (SGB II)
Federal Social Court (BSG), Judgment of 19 August 2010, – B 14 AS 47/09 R –
The German Social Code, Book II (SGB II) contains a self-contained and lump-sum benefit regime which, unlike, for example, the provisions for the costs of multi-day class trips in Section 23 Paragraph 3 No. 3 of the SGB II, does not provide a legal basis for the reimbursement of costs for school books.
Is there an entitlement to reimbursement of the costs for the purchase of school books for the period before February 9, 2010, under the German Social Code, Book II (SGB II) or Book XII (SGB XII)?
No grounds for an order if the move has already taken place and the rental deposit has been pre-financed by a third party.
The fact that a move has taken place in the meantime eliminates the grounds for an order in the EA procedure.
The fact that the move was financed by a loan from family members does not establish any particular urgency. The applicant can reasonably be expected to clarify, in the main proceedings, whether her move, in light of the landlord's termination of the lease for personal use, constitutes a necessary move within the meaning of Section 22 Paragraph 3 Sentence 2 of the German Social Code, Book II (SGB II), which obligates the respondent to bear the reasonable moving costs (Federal Social Court judgment of May 6, 2010 – B 14 AS 7/09 R – paragraphs 15 et seq.), or a move within the meaning of Section 22 Paragraph 3 Sentence 1 of the SGB II (Federal Social Court judgment of May 6, 2010 – B 14 AS 7/09 R – paragraphs 18 et seq.), in which case the respondent has discretion regarding both whether and how much the moving costs will be covered.
2.2 – Bavarian State Social Court decision of 19 July 2010, – L 11 AS 441/10 NZB –
Garden maintenance can be part of the upkeep costs for a home that is occupied by the owner.
If the homeowner is physically able to carry out this work himself and has the necessary equipment, the costs for cutting the hedge are not considered accommodation costs.
2.3 – Bavarian State Social Court judgment of 01.07.2010,- L 11 AS 442/09 –
Job interviews do not justify the necessity of relocation.
++ Note: The legal text does not specify when a move is necessary or not. Whether a move is necessary depends on whether there are plausible, comprehensible, and understandable reasons that would also motivate someone not receiving benefits (see Berlit in LPK-SGB II, 3rd edition 2009, § 22 para. 84 with further references). The explanatory memorandum to the law states, for example (BT Drs. 16/1410 p. 23 on No. 21 letter a): "This limitation (of § 22 para. 1 sentence 2 SGB II) does not apply in particular if the change of residence is necessary for integration into employment or for health or social reasons."
However, the vague hope of an improvement in the labor market position is not sufficient to affirm the necessity of a relocation within the meaning of Section 22 Paragraph 1 Sentence 2 of the German Social Code, Book II (SGB II) (Berlit in LPK-SGB II, 3rd edition 2009, Section 22 marginal note 84 with further references; Berlin-Brandenburg State Social Court decision of October 10, 2009 - L 29 AS 1196/09 B ER - ; published in the case law ticker of Tacheles 47/2009).
2.4 – Berlin-Brandenburg State Social Court, decision of 15 September 2010, – L 20 AS 902/10 B PKH –
There is no entitlement to additional support for single parents if another person provides them with the same sustained support in caring for and raising the child as the other parent usually does.
Because preferential treatment compared to married couples is not justified. Therefore, when interpreting Section 21 Paragraph 3 of the German Social Code, Book II (SGB II), the prohibition of discrimination under Article 6 Paragraph 1 of the Basic Law must be observed, and the provision must be interpreted accordingly in a manner consistent with fundamental rights.
If the person in need of assistance has deregistered from receiving benefits without giving reasons, there is no reason for the job center to provide spontaneous advice on the inflow principle.
Such consultation would not have been required even before the conclusion of their employment contract, for example, in connection with the initial application for benefits under the German Social Code, Book II (SGB II). Within the context of mass administration, consultation cannot be provided preventively for every conceivable event, especially when there is no concrete indication that such an event will actually occur in the specific benefit case. In this sense, the Federal Social Court (BSG) ruled in its decision of December 16, 2008 – B 4 AS 77/08 B – that for an obligation to provide consultation to exist, the authority must have evidence that a corresponding need for such consultation exists.
Regardless, benefit providers are obligated to offer spontaneous advice (only) regarding clearly apparent options that are obviously expedient and would presumably be used by any reasonable person entitled to benefits; however, a specific reason for consultation must exist. In its judgment of October 31, 2007 – B 14/11b AS 63/06 R, the Federal Social Court (BSG) also refers to an obvious option that only becomes apparent during the actual processing of a case.
2.6 – North Rhine-Westphalia State Social Court, decision of 22 September 2010, – L 19 AS 1197/10 NZB –
In this respect, the highest court rulings have clarified that the recommendations for granting dietary allowances for patients in social assistance (hereinafter: additional needs recommendations) issued by the German Association for Public and Private Welfare (Deutscher Verein für öffentliche und private Fürsorge e.V.) may be used to assess the necessity and extent of additional nutritional needs (Federal Social Court judgments of February 27, 2008 - B 14/7b AS 64/06 R - para. 28 and - B 14/7b AS 32/06 - para. 39), provided there are no special circumstances of the individual case. These additional needs recommendations, which do not have the force of law, can be used as a general guideline established in administrative practice, which normally allows for the uniform and prompt processing of claims for additional nutritional needs in the area of patients' dietary needs (Federal Social Court judgments of February 27, 2008 - B 14/7b AS 32/06 R - para. 39). – B 14/7b AS 64/06 R – para. 26, 28). Further investigations are only necessary in individual cases if special circumstances are asserted, in particular needs that deviate from the recommendations for additional needs. The fact that the highest court's case law only addressed the recommendations for additional needs that were applicable until September 30, 2008, does not create a need for clarification, since the new recommendations for additional needs, which were established in a qualitatively equivalent procedure and take into account scientific progress, have replaced an outdated set of facts (cf. Berlin-Brandenburg Higher Social Court – decision of December 9, 2009 – L 190 AS 1717/09 NZB – para. 4)
The entitlement to additional needs allowances under Section 21 of the German Social Code, Book II (SGB II) does not constitute an independent subject of dispute that can be separated from the amount of the standard benefit and requires a separate application, but is an integral part of the benefits for securing subsistence and is therefore included in the applicant's application for continued benefits under the SGB II (see Federal Social Court judgment of February 18, 2010 – B 4 AS 29/09 R – para. 11).
2.7 – North Rhine-Westphalia State Social Court, decision of 22 September 2010, – L 9 B 166/09 AS –
Legal aid may be granted if the benefit provider has refused the consent of the person in need to be absent from their place of residence and has made use of an administrative act in terms of the content and form of the decision.
The agency responsible for this administrative act has no legal basis for authorization, which is an indispensable requirement.
Minors can deduct a monthly insurance allowance of EUR 30.00 from their child benefit if they have private accident insurance.
Such insurance is not unreasonable. This applies regardless of whether the minors live with their parents or one parent in a household receiving social assistance, or whether they maintain their own household. The insurance allowance can be fully deducted even if the premiums are significantly lower.
Although the children themselves, but rather the parents, took out this insurance for their children, the deductibility from child benefit is given, because it is sufficient that it is an independent insurance coverage that benefits the child and is also shown in a separate contribution.
++ Note: For persons under seven years of age, the insurance contract must be concluded by their legal representative(s) – otherwise, it is void – for persons between seven and 17 years of age, it requires at least their approval (§§ 104, 105, 107 of the German Civil Code (BGB); the pocket money provision of § 110 BGB does not apply); without this approval, the contract is provisionally invalid (§§ 108, 109 BGB), meaning that no insurance policy is concluded until the potential invalidity is rectified. Parents who do not have an income deduction can have their minor children included as final subscribers in the insurance contract by means of a corresponding amendment, in which case the deduction is made from their income (cf. Brühl Münder, Social Code Book II, 3rd edition 2009, para. 47).
According to the case law of the Federal Social Court (BSG), obvious uneconomicalness exists when the consideration to be obtained is clearly disproportionate to the actual value of the asset to be realized (see BSG of 06.09.2007, file number: B 14/7b AS 66/06 R and BSG of 15.04.2008, file number: B 14/7b AS 68/06 R).
However, a loss of approximately 12 percent does not constitute obvious inefficiency in the area of basic income support law, taking into account the subsidiarity of benefits under the German Social Code, Book II (SGB II).
Hartz IV benefit providers must differentiate according to apartment size when determining the price per square meter.
Such a differentiation is necessary in a coherent concept in accordance with the case law of the Federal Social Court (see BSG, judgment of June 18, 2008 – B 14/7b AS 44/06 R and BSG, judgment of August 20, 2009 – B 14 AS 65/08 R – ).
There is no entitlement to Hartz IV benefits if one's residence is abandoned without notifying the authorities. This also applies if the person concerned is still within the local jurisdiction of the authority.
According to Section 7 Paragraph 4a of the German Social Code, Book II (SGB II), 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), in terms of time and location; the other provisions of this order apply accordingly."
Section 2 of the Accessibility Order (EAO) defines being within the immediate vicinity in terms of time and location. This provision reads:
"An unemployed person may temporarily leave their residence or habitual abode if:
1. they have notified the employment office of their address for the duration of the absence in a timely manner;
2. they can also meet the requirements of Section 1 Paragraph 1 at their temporary place of residence; and
3. they are staying in the vicinity of the employment office. The vicinity includes all locations in the area surrounding the employment office from which the unemployed person would be able to reach the employment office daily without undue effort, if necessary."
It is unclear what the specific legal consequences of the reference in Section 7 Paragraph 4a of the German Social Code, Book II (SGB II) to the provisions of the Accessibility Order have (see, for example, Eicher/Spellbrink, SGB II, Commentary, 2nd edition 2008, Section 7, marginal notes 76 et seq.; Social Court Hildesheim, judgment of February 18, 2009, S 43 AS 1230/07, marginal notes 19 et seq. of the Juris entry with further references; the explanatory memorandum to the law – Bundestag printed matter 16/1696, on No. 3 letter b, p. 26 – is also not very clarifying). In any case, however, it is supported by the wording of the provision and – as far as can be seen – undisputed that at least Section 2 of the Accessibility Order is directly applicable by virtue of its direct incorporation into Section 7 Paragraph 4a of the SGB II.
Anyone who, without the consent of their personal contact person, is outside the area defined in the EAO (Employee Assistance Ordinance) in terms of time and location, will not receive benefits under the SGB II (Social Code, Book II).
The habitual residence (cf. for the definition § 30 para. 3 sentence 2 SGB I) is only relevant in connection with § 2 EAO in the case of homeless persons (Steinmeyer in Gagel, SGB III, 38th supplementary delivery 2010, § 119 marginal note 249; cited from beck-online). However, HB only became homeless by abandoning his residence; the change in circumstances is to be seen in the abandonment of the residence, which preceded homelessness.
Social Court Augsburg Judgment of 16.09.2010, - S 15 SO 40/10 –
If an 81-year-old recipient of basic income support for the elderly and those with reduced earning capacity, who is in need of care, lives with her adult daughter who receives unemployment benefit II, a reduction of her standard allowance for subsistence as a household member within the framework of social assistance is justified (different opinion BSG, judgment of 19.5.2009 , – B 8 SO 8/08 R – ).
The head of household within the meaning of Section 3 Paragraph 1 of the German Social Security Code (RSV) is the person who bears the general household expenses (Federal Social Court – BSG – judgment of October 16, 2007 – B 8/9b SO 2/06 R, citing the long-standing case law of the Federal Administrative Court). General household expenses are those that are typically incurred only once. These include, for example, the (basic) costs of energy supply, subscription to a daily or weekly newspaper, radio reception, and telephone connection (Schleswig-Holstein Higher Social Court, judgment of December 9, 2009 – L 9 SO 12/08).
4. IAB – Short Report 15/2010
Receiving unemployment benefits (ALG II) is rarely a comfortable cushion, according to Jonas Beste, Arne Bethmann, and Mark Trappmann.
doku.iab.de (pdf)
