The heating cost surcharge must be paid in full, because a hot water bill according to the Heating Costs Ordinance does not allow for a specific recording of hot water costs.
Although a meter in the tenant's apartment measures the cubic meters of hot water consumed, it does not measure the amount of energy required to heat that water. The calculation performed according to the Heating Costs Ordinance does not represent a concrete calculation of the energy consumed, but rather uses an approximation based on empirical data to determine the tenant's share of the total energy consumption. This calculation considers both individual consumption and the consumption based on the tenant's share of the total costs in terms of floor space.
This does not constitute a concrete recording of the hot water preparation costs (see also Brehm/Schifferdecker, Die Warmwasserpauschale im Regelsatz des SGB II, SGb 2010, 331). It should be noted that the costs for hot water also include costs for water consumption, which, according to § 22 SGB II, is considered part of the accommodation costs.
Hot water preparation costs are only not considered accommodation costs under Section 22 Paragraph 1 of the German Social Code, Book II (SGB II), to the extent that they are already included as a lump sum in the standard allowance, even if they are to be paid separately to the landlord but are not to be borne according to actual consumption, but rather as a fraction of the total consumption according to the living space share.
++ Note: See LSG Berlin-Brandenburg, judgment of 26.05.2009, file no. L 14 AS 1830/08, appeal against this pending under B 14 AS 52/09 R -, published in the case law ticker of Tacheles 16/2010 with many further case law references.
To date, there is no definitive ruling from the highest court on whether a hot water cost calculation carried out in accordance with the Heating Costs Ordinance (HeizkostenV) constitutes a concrete assessment that supersedes the flat rate calculated based on the standard benefit rate, and what standard then applies for calculating the advance payment during the current billing period. Hot water costs deductible from ALG II benefits cannot be calculated according to the Heating Costs Ordinance.
1.2 – Bavarian State Social Court decision of 23.09.2010 , – L 11 AS 586/10 B ER –
Availability within the meaning of Section 119 Paragraph 5 of the Social Code (SGB III) is not a prerequisite for receiving benefits under the SGB II.
Because with the introduction of Section 7 Paragraph 4a of the German Social Code, Book II (SGB II), the legislator only intended to regulate the absence of benefit recipients from their place of residence and not to establish a new (positive) eligibility requirement (cf. Spellbrink in Eicher/Spellbrink, SGB II, 2nd edition, Section 7, marginal note 78), so that the receipt of benefits by those in need cannot fail due to their lack of availability (within the meaning of Section 119 Paragraph 5 of the German Social Code, Book III (SGB III)), since the EAO presupposes the concept of availability as a legal eligibility requirement and merely defines it.
1.3 – Bavarian State Social Court decision of 14 September 2010, – L 7 AS 591/10 B ER –
A reduction of the full benefit is also possible in preliminary legal protection proceedings for subsistence-level benefits (see Federal Constitutional Court, decision of 12 May 2005, 1 BvR 569/05, para. 26).
The applicant was awarded 80% of the standard benefit.
The application for legal aid for the appeal proceedings is to be rejected.
No legal aid is granted for the legal aid proceedings themselves (see Leitherer in Meyer-Ladewig, Sozialgerichtsgesetz [Social Courts Act], 9th edition 2008, § 73a, marginal note 2b). This also applies to the associated appeal proceedings. The legal aid proceedings do not directly serve the purpose of pursuing legal action within the meaning of § 114 sentence 1 of the German Code of Civil Procedure (ZPO); they are a separate procedure to examine whether pursuing legal action requires financial support (see Bavarian State Social Court, decision of May 7, 2010, L 17 U 133/10 B PKH and already Federal Court of Justice, decision of May 30, 1984, VIII ZR 298/83 = NJW 1984, p. 2106). The person concerned can submit an application for legal aid themselves and, if necessary, seek advice beforehand under the Legal Aid Act.
1.5 – North Rhine-Westphalia State Social Court decisions of 10 November 2010, – L 9 AS 1346/10 B ER – and – L 9 AS 1347/10 –
The German Social Code, Book II (SGB II), does not contain a legal basis for the reimbursement of the costs of a DNA analysis as a subsidy.
1.6 – Mecklenburg-Vorpommern State Social Court, Judgment of 27 May 2010, – L 8 AS 71/08 –
For the landlord to cover move-out renovation costs as accommodation costs, there does not need to be an undisputed claim.
According to Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), renovation costs (cosmetic repairs) can also be considered housing costs. It is necessary and sufficient that the disputed claim of the former landlord in this regard has social validity.
The costs of the move-out renovation are covered by the accommodation costs to be granted in accordance with Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), and are not to be covered by the standard allowance.
The renovation work must be carried out by an external company if the person in need of assistance is unable to do it themselves due to illness. However, the German Social Code, Book II (SGB II), does not obligate relatives to bear these expenses for the sick person.
The mixed standard rate does not apply to a household in which one partner receives ALG II and the other partner receives benefits under the Asylum Seekers' Benefits Act (AsylbLG).
The provision in Section 20 Paragraph 3 of the German Social Code, Book II (SGB II), according to which the standard benefit is only 90% if two members of the household are over 18 years of age, does not apply to households where one adult member receives benefits under the SGB II, while the other adult member only receives basic benefits under Section 3 of the Asylum Seekers' Benefits Act (AsylbLG) (see also Higher Social Court of Berlin-Brandenburg, Judgment of April 14, 2010 – L 10 AS 1228/09-; Decision of May 3, 2007 – L 18 B 472/07 AS, FEVS 58, pp. 573 ff.; Social Court of Hamburg, Decision of April 24, 2008 – S 56 AS 796/08 ER, InfAuslR 2009, pp. 39 f.; Krauß, in: Hauck/Noftz, SGB II, Section 20). Rn. 69, as of March 2008; O. Loose, in: Hohm, SGB II, § 20 Rn. 53.1, as of March 2008).
++ Note: See LSG Berlin, L 10 AS 1228/09, judgment of 14.04.2010, appeal pending before the BSG under file number: – B 14 AS 105/10 R- , published in the case law ticker of Tacheles 30/2010.
The mixed standard rate does not apply to a household in which one partner receives ALG II and the other partner receives benefits under the Asylum Seekers' Benefits Act (decision of the Berlin-Brandenburg State Social Court of 03 May 2007, L 18 B 472/07 AS).
1.9 – Saxon State Social Court decision of 12 November 2010, – L 7 AS 593/10 B ER –
Immediate enforcement of the ban on entering the premises issued by the benefit provider against the person in need of assistance is permissible.
In substantive legal terms, issuing a ban on entering the premises requires a sustained disruption of operations, and the social security provider must make special efforts to overcome emerging or already existing conflicts.
The applicant's demand to be able to visit the office daily and to conduct initial telephone contacts via the respondent's telephone system is disproportionate to the need for advice and support that he can reasonably claim under Section 14 Sentence 1 of the German Social Code, Book II (SGB II). It is obvious that such frequent visits to the case manager would disrupt the orderly conduct of other official business at the office.
The restrictions imposed by the authority on personal visits to the office, including the ban on entering the premises, are justified not only when an objective danger emanates from a person in need of assistance, but also when the operation of the office is repeatedly and significantly disrupted.
Fees for the communal antenna are not reimbursable housing costs within the meaning of Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), because the person in need of assistance is not obligated to pay them by virtue of their tenancy agreement. Only in this case can the expenses for the communal antenna fall under Section 2 of the German Ordinance on Operating Costs (BetrKV).
Since these costs of the communal antenna are therefore not to be included under the costs of accommodation, but are to be allocated to and included in the standard benefit, there is no legal basis for the assumption of the costs of the (voluntary) contract for the use of the communal antenna.
In the cited decision of February 19, 2009 (B 4 AS 48/09 R, para. 20), the Federal Social Court expressly left open the question of whether the costs of a cable connection, which is actually used based on a voluntary decision by the tenant, are also excluded from housing cost benefits if the existing cable connection is the only technical access to television and the landlord prohibits any other connection (coverage as housing costs only if cable connection fees are not at the discretion of the person in need of assistance; (see Kahlhorn in Hauck/Noftz, SGB II, as of July 2007, § 22 para. 13, and also Lang/Link in Eicher/Spellbrink, SGB II, 2nd edition 2008, § 22 para. 23)). This is a legal question that also arises in the case of joining an antenna community.
Individuals whose entitlement to benefits under the German Social Code, Book II (SGB II) arose before January 1, 2008, and who had reached the age of 58 before that date, could receive benefits in accordance with Section 65, Paragraph 4 of the SGB II, by analogy with Section 428 of the German Social Code, Book III (SGB III). In these cases, the person in need of assistance is generally only required to submit a pension application if the requirements for a full pension are met.
2. Decisions of the social courts on basic income support for job seekers (SGB II)
The capping of accommodation and heating costs after an unnecessary move pursuant to Section 22 Paragraph 1 Sentence 2 of the German Social Code, Book II (SGB II), as amended and in force from August 1, 2006, only applies to a change of residence within the local area relevant for determining appropriateness.
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, judgment of July 2, 2009, L 3 AS 128/08, para. 36 with further references).
Section 22 Paragraph 1 Sentence 2 of the German Social Code, Book II (SGB II) does not apply to situations in which a move is made beyond the boundaries of the comparison area as defined by the case law of the Federal Social Court (BSG) (see BSG judgment of 19.2.2009 – B 4 AS 30/08 R).
++ Note: According to Section 22 Paragraph 2a Sentence 1 of the German Social Code, Book II (SGB II), if persons under the age of 25 move, benefits for accommodation and heating for the period after the move until they reach the age of 25 are only provided if the local authority has guaranteed this before the accommodation contract is concluded. This regulation only applies to cases of first-time occupancy of (one's own) apartment – usually by moving out of the parental home – as the legislator's intention is to prevent the formation of further benefit units (see Berlit in: Münder, SGB II, 3rd edition, 2009, Section 22, marginal notes 89 ff. and Lang/Link in: Eicher/Spellbrink, SGB II, 2nd edition, 2008, Section 22, marginal notes 80 b and e).
2.2 – Social Court Karlsruhe decision of 10 November 2010, – S 15 AS 3923/10 ER –
A certificate of incapacity for work does not always excuse failure to appear for the appointment at the employment agency.
Namely, when the notification request explicitly stated that a special certificate would have to be submitted in the event of an inability to attend the appointment due to illness.
www.sozialgericht-karlsruhe.de
++ Note: See BSG, judgment of 09.11.2010 , – B 4 AS 27/10 R – , published in the case law ticker of Tacheles KW 46/2010.
A sick note does not protect against being reported to the job center.
The certificate of incapacity for work in itself does not constitute proof of a health-related inability to attend an appointment. Health circumstances can represent an important reason for non-attendance.
2.3 – Social Court Frankfurt (Oder) Judgment of 02.09.2010 , – S 21 AS 375/10 – , pending before the Higher Social Court Berlin-Brandenburg – L 29 AS 1914/10 –
The assessment of the appropriateness of accommodation costs is not left to the discretion of the administration.
Rather, further specifications are required, which, based on the general principle of equality, must be made according to uniform criteria. Furthermore, the rule of law requires the reliability and predictability of the limitation (Federal Social Court – BSG –, judgment of 22 September 2009, B 4 AS 18/09 R, para. 12).
2.4 – Social Court Frankfurt (Oder) Judgment of 21.10.2009, – S 21 AS 2059/07 –
Notices of revocation are only sufficiently specific if it is clear, with reference to each month and each benefit recipient, to what extent a revocation is taking place.
According to the jurisprudence of the Federal Social Court, claims for benefits to secure subsistence under the Second Book of the German Social Code (SGB II) are individual claims, even for members of a household receiving benefits, and must be calculated on a monthly basis. If a member of the household has been granted insufficient benefits, they can demand the granting of the benefits to which they are entitled, even if the household as a whole has received the correct amount of benefits and the basic income support provider has only incorrectly distributed the benefits among the individual members of the household (Judgment of the Federal Social Court of June 18, 2008, Case No.: 14 AS 55/07 R, paragraphs 27-28). Even for the same person, overpayments for individual months within a benefit period may not be offset against insufficient benefits for other months (Judgment of the Federal Social Court of 05.09.2007, Case No. B 11b AS 15/06 R, para. 42).
2.5 – Social Court Düsseldorf Judgment of 18.10.2010 , – S 7 (28) AS 224/08 –
No granting of benefits for the costs of accommodation if the person in need of assistance, who is under 25 years of age, has failed to seek professional help to resolve the conflict with her mother.
The failure to involve a professional helper, such as a youth welfare office, a parenting counselor, a family therapist, or, in cases of violence, the police, can be an indication that insufficient attempts have been made to resolve the conflicts. Even though the professional resources described are support services for young adults that should not and cannot be imposed, foregoing professional help does not automatically mean that the easier path of separation, financed by social benefits (here, housing costs according to the German Social Code, Book II), must be provided. A different conclusion may be reached if the rift is so profound that seeking professional help is futile from the outset (see the decision of the Higher Social Court of Saxony-Anhalt, dated June 16, 2010, case no. L 5 AS 383/09 ER).
3. Decisions of the State Social Courts on Social Assistance (SGB XII)
3.1 – Bavarian State Social Court Judgment of 23.09.2010 , – L 8 SO 1/08 –
If the social assistance recipient receives a free lunch through the workshop visit (WfbM) financed by the supra-regional social assistance provider, this justifies a different determination of the standard allowance (BSG judgment of 11.12.2007, B 8/9b SO 21/06 R).
The free lunch provided in the workshop for disabled people as part of a measure funded by the Federal Employment Agency does not reduce the disabled person's entitlement to social assistance (distinction from BSG of 11.12.2007 – B 8/9b SO 21/06 R = BSGE 99, 252 = SozR 4-3500 § 28 No. 3).
3.2 – Hessian State Social Court, Decision of November 9, 2010, – L 7 SO 134/10 B ER –
The assumption of rent arrears is only justified if it is suitable for securing the accommodation on a permanent basis. This is not the case if the circumstances that were responsible for the accumulated rent arrears cannot be eliminated despite the assumption of the rent arrears. This is particularly likely to be the case if the debtor's behavior allows for the prognosis that timely rent payments cannot be expected with the necessary regularity in the future, nor can they be secured by other means.
It is questionable whether the social welfare agency may differentiate the reference rent according to building age categories when determining the abstract limit of reasonableness. The reference rent is not intended to determine whether the currently occupied accommodation is reasonable (concrete approach), but rather the maximum amount of accommodation the benefit recipient may obtain in the relevant comparison area (abstract approach) – Federal Social Court (BSG), March 22, 2010 – B 8 SO 24/08 R, referring to the case law of the Federal Social Court on Section 22 of the German Social Code, Book II (SGB II): fundamentally, Federal Social Court (BSG), November 7, 2006 – B 7b AS 18/06 R; September 22, 2009 – B 4 AS 18/09 R. Therefore, all building age classes – possibly statistically weighted – that represent the lower housing segment in the comparison area should be included in determining the maximum limit (see rent index for the city of Essen: BSG, 17 December 2009 – B 4 AS 27/09 R).
Secondly, the social welfare agency determined the lowest third solely through an arithmetic analysis of the rent index, without considering a frequency distribution based on the underlying data or other sources. This raises questions about the accuracy of the representation of the comparison area, as maximum and minimum ranges can determine the reference rent, which may not have statistical relevance in the actual housing market (see: Federal Social Court, 19 October 2010 – B 14 AS 50/10 R – Report No. 58/10 No. 2).
4. Note on: Federal Social Court (BSG), 14th Senate, Judgment of March 23, 2010 – B 14 AS 1/09 R – , Author: Dr. Michael E. Reichel, Judge at the Social Court, Source: jurisPR-SozR 23/2010 Note 1
If participation in a multi-day class trip is legally permissible and depends on prior participation in a one-day event, these costs are also included in the costs of the multi-day class trip.
Do the costs for the renewal and repair of sewer connections for the owner-occupied property, for which the municipality claims costs or a claim for reimbursement, count as operating costs or actual expenses for accommodation and heating that are generally eligible for consideration within the meaning of Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II)?
Costs for the renewal and repair of utility connections in a home occupied by the person receiving assistance are to be covered pursuant to Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), because the reimbursable expenses for accommodation in owner-occupied homes include all necessary expenses associated with ownership that are deductible when calculating income from renting and leasing (Federal Social Court [BSG], Judgment of April 15, 2008 – B 14/7b 34/06 R – para. 38; Knickrehm/Voelzke/Spellbrink, DSGT Practitioner Guides, Accommodation Costs pursuant to Section 22 SGB II, p. 19; North Rhine-Westphalia State Social Court, Judgment of February 25, 2010, – L 7 AS 47/09-, appeal pending before the Federal Social Court under file number: B 14 AS 61/10 R).
Section 23 Paragraph 1 of the German Social Code, Book II (SGB II) does not provide a legal basis for covering these costs. The conditions for granting a loan in cases of unavoidable need, as defined in Section 23 Paragraph 1 SGB II, are not met. According to this provision, in individual cases, an unavoidable need for subsistence, covered by standard benefits and deemed necessary under the circumstances, can be covered by a loan upon appropriate documentation.
The claimed need is to be classified as a housing need, as it relates to the existential need for adequate living space. However, the benefits for this are granted in addition to the standard benefits and are not covered by them. Due to this distinction, a different provision of benefits under Section 23 Paragraph 1 of the German Social Code, Book II (SGB II) is not possible for needs not covered by the standard benefits (Bavarian State Social Court, Judgment of March 18, 2010, - L 11 AS 455/09 -, Federal Social Court, B 4 AS 60/10 B of July 1, 2010).
The job center cannot refer to an installment plan, because individual costs that are due in a single payment must be considered as actual, current needs at the time they are due and not spread over longer periods. As one-time payments, they belong to the current needs in the month they are due.
According to Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), benefits for accommodation and heating are provided in the amount of the actual expenses, insofar as these are reasonable. Section 22 Paragraph 1 SGB II covers not only ongoing but also one-off costs for accommodation and heating (Federal Social Court [BSG], Judgment of February 18, 2010 – B 4 AS 28/09 R –; Judgment of December 16, 2008 – B 4 AS 49/07 R –; Judgment of September 19, 2008 – B 14 AS 54/07 R –; Decision of May 16, 2007 – B 7b AS 40/06 R –). Insofar as individual costs are due in a single payment, they must be considered as actual, current needs at the time they are due, and not spread over longer periods (see Federal Social Court [BSG], judgment of March 22, 2010 – B 4 AS 62/09 R –; judgment of April 15, 2008 – B 14/7b AS 58/06 R –). As one-time payments, they belong to the current needs in the month they are due (see Federal Social Court [BSG], judgment of March 22, 2010 – B 4 AS 62/09 R –; judgment of July 2, 2009 – B 14 AS 36/08 R –; judgment of May 16, 2007 – B 7b AS 40/06 R –).
