Additional heating costs must be paid in full, because a hot water bill according to the heating costs regulation does not allow for a concrete recording of the hot water costs.
A meter in the HB apartment measures how many cubic meters of hot water are used. However, it does not measure how much energy is needed to heat this hot water. The calculation carried out in accordance with the Heating Cost Ordinance does not represent a concrete calculation of the energy required, but rather the share of HB in total energy consumption is determined using an approximate calculation based on empirical values. Here, on the one hand, the individual consumption is taken into account, and on the other hand, the consumption is determined from the share of the area in the total costs.
This does not represent a concrete recording of the hot water preparation costs (also Brehm/Schifferdecker, The hot water flat rate in the standard rate of SGB II, SGb 2010, 331). It is noteworthy that the costs for hot water also include costs for water consumption, which is part of the cost of accommodation according to Section 22 SGB II.
Hot water heating costs are only included in the standard rate to the extent that they are already included as a flat rate, and are not accommodation costs according to Section 22 Paragraph 1 SGB II, if they are to be paid to the landlord separately, but not according to the actual amount consumption, but rather as a fraction of the total consumption according to the share of living space.
++ Note: See LSG Berlin-Brandenburg, judgment of May 26, 2009, ref many case law references.
To date, there has been no clarification from the highest court on the question of whether an invoice for hot water costs carried out in accordance with the Heating Costs Ordinance should be viewed as a concrete entry that displaces the flat rate resulting from the assessment of the standard rate, and what criterion, if any, for the assessment of the deduction during the period current billing period applies. Hot water costs that can be deducted from ALG II benefits cannot be calculated according to the Heating Cost Ordinance.
1.2 – Bavarian State Social Court decision of September 23, 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 SGB II.
With the introduction of Section 7 Paragraph 4a SGB II, the legislature only wanted to regulate the absence of those receiving benefits and not establish a new (positive) eligibility requirement (cf. Spellbrink in Eicher/Spellbrink, SGB II, 2nd ed., § 7 Rn. 78), so that the receipt of benefits by those in need of assistance cannot fail due to their lack of availability (in the sense of Section 119 Paragraph 5 SGB III), because the EAO presupposes the concept of availability as a legal prerequisite for eligibility and merely defines it.
1.3 – Bavarian State Social Court decision of September 14, 2010, – L 7 AS 591/10 B ER –
A deduction from the full benefit is also possible for interim legal protection in the case of benefits that secure a living (cf. Federal Constitutional Court, decision of May 12, 2005, 1 BvR 569/05, Rn. 26).
Here the applicant was awarded 80% of the standard benefit.
Application for approval of legal aid for the appeal procedure must be rejected.
Because no legal aid is granted for the PKH procedure (cf. Leitherer in Meyer-Ladewig, Social Court Act, 9th edition 2008, § 73a RdNo. 2b). This also applies to the associated complaints procedure. The PKH procedure does not directly serve legal prosecution within the meaning of Section 114 Sentence 1 ZPO; It is a separate procedure to check whether legal prosecution requires financial support (so BayLSG, decision of May 7th, 2010, L 17 U 133/10 B PKH and already BGH, decision of May 30th, 1984, VIII ZR 298/83 = NJW 1984, p. 2106). The person concerned can submit an application for legal aid themselves and, if necessary, receive advice beforehand in accordance with the Advice Aid Act.
1.5 - State Social Court of North Rhine-Westphalia decisions of November 10, 2010, - L 9 AS 1346/10 B ER - and - L 9 AS 1347/10 -
SGB II does not contain any basis for claiming the costs of a DNA report as a subsidy.
1.6 - State Social Court of Mecklenburg-Western Pomerania judgment of May 27, 2010, - L 8 AS 71/08 -
There does not have to be an undisputed claim by the landlord for the assumption of move-out renovation costs as accommodation costs.
According to Section 22 Paragraph 1 Sentence 1 SGB II, renovation costs (cosmetic repairs) can also be viewed as accommodation costs. It is necessary and sufficient that the former landlord's disputed claim in this regard has social effectiveness.
The costs of the move-out renovation are included in the accommodation costs to be granted in accordance with Section 22 Paragraph 1 Sentence 1 SGB II and are not covered by the standard rate.
It is necessary for the renovation work to be carried out by an external company if the person in need of help is unable to do so on their own due to illness. However, there is no obligation for relatives to bear these expenses for the sick HB under SGB II.
The mixed rule rate does not apply to a benefit community in which one partner receives benefits under Alg II and the other partner receives benefits under the AsylbLG.
The provision of Section 20 Paragraph 3 SGB II, according to which the standard benefit is only 90% if two partners in the community of needs have reached the age of 18, does not apply to communities of need where one of the adult partners receives benefits according to SGB II. whose other adult partner only receives basic benefits in accordance with Section 3 AsylbLG (also LSG 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 p. 573 ff.; SG Hamburg, decision of April 24, 2008 - S 56 AS 796/08 ER, InfAuslR 2009 p. 39 f.; Krauß, in: Hauck/Noftz, SGB II, § 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 April 14, 2010, appeal pending at the BSG under the reference: - 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 community of needs in which one partner receives benefits under Alg II and the other partner receives benefits under the AsylbLG (decision of the Berlin-Brandenburg State Social Court of May 3, 2007, L 18 B 472/07 AS).
1.9 - Saxon State Social Court decision of November 12, 2010, - L 7 AS 593/10 B ER -
Immediate enforcement of the house ban issued by the service provider against the person in need of help is permissible.
From a substantive legal point of view, the issuance of a ban on entering the premises requires a lasting disruption to service operations, whereby the basic security provider must make special efforts to overcome impending or already arising conflicts.
The applicant's request to be able to visit the office every day and make initial telephone contacts via the respondent's telephone system is disproportionate to the need for advice and support that he can reasonably claim within the framework of Section 14 Sentence 1 SGB II. It is obvious that such frequent consultations with the case manager mean that the orderly conduct of other official business in the office can no longer be guaranteed.
The restrictions on personal visits to the office imposed by the authority with its ban on entering the premises are justified not only if a person in need of help poses an objective danger, but also if business operations are repeatedly and significantly disrupted.
Fees for the community antenna are not reimbursable costs of accommodation within the meaning of Section 22 Paragraph 1 Sentence 1 SGB II because the person in need of assistance does not have to bear them based on the rental agreement. Only in this case can the expenses for the community antenna fall under Section 2 of the Operating Costs Ordinance (BetrKV).
Since these costs of the community antenna are not included in the costs of accommodation, but are allocated to the standard service and are included in this, there is no basis for claiming the costs of the (voluntary) contract for the use of the community antenna.
In the cited decision of February 19, 2009 (B 4 AS 48/09 R, RdNo. 20), the Federal Social Court expressly left open whether the costs of a cable connection that is actually used due to a voluntary decision by the tenant are also covered by services for Accommodation costs are excluded if the existing cable connection is the only technical access to television and the landlord prohibits any other connection (covered as accommodation costs only if cable connection fees are not at the disposal of the person in need of help; (see Kahlhorn in Hauck/Noftz, SGB II , Stand VII/07, § 22 RdNo. 13, as well as Lang/Link in Eicher/Spellbrink, SGB II, 2nd edition 2008, § 22 RdNr. 23). This also applies to the case of joining an antenna community posing legal question.
Persons whose entitlement to benefits under SGB II arose before January 1, 2008 and who reached the age of 58 before this date were able to receive benefits in accordance with Section 65 Paragraph 4 SGB II with corresponding application of Section 428 SGB III. In these cases, the person in need of help should generally only be asked to apply for a pension if the requirements for an unreduced pension are met.
2. Decisions of the social courts on basic security for job seekers (SGB II)
The cap on the costs of accommodation and heating after an unnecessary move in accordance with Section 22 Paragraph 1 Sentence 2 SGB II in the version applicable from August 1, 2006 only applies to a change of residence within the local area relevant for determining appropriateness.
The requirement of a prior assurance for people under 25 years of age to move only applies to people who have applied for or are receiving benefits under SGB II at the time of the move (Saxon State Social Court, judgment of July 2, 2009, L 3 AS 128/08, 36 mwN).
Section 22 Paragraph 1 Sentence 2 SGB II does not apply from the outset to cases in which a move is made beyond the boundaries of the settlement area in accordance with the case law of the BSG (see BSG judgment of February 19, 2009 - B 4 AS 30/08 R). Application.
++ Note: According to Section 22 Paragraph 2 a Sentence 1 SGB II, if people who have not yet reached the age of 25 move, benefits for accommodation and heating are provided for the period after a move until they reach the age of 25 only provided if the local authority has guaranteed this before the accommodation contract is concluded. This regulation is only applicable in cases of moving into a (own) apartment for the first time - usually by moving out of the parents' apartment - as it is the intention of the legislature to avoid the creation of further communities of need (see: Berlit in: Münder, SGB II, 3rd edition, 2009, § 22 Rn. 89 ff. and Lang/Link in: Eicher/Spellbrink, SGB II, 2nd edition, 2008, § 22 Rn. 80 b and e).
2.2 - Karlsruhe Social Court Decision of November 10, 2010, - S 15 AS 3923/10 ER -
A certificate of incapacity for work does not always excuse failure to show up at the registration appointment at the employment agency.
Namely if the request to report expressly stated that in the event of an inability to attend the appointment due to illness, a special certificate would have to be presented.
++ Note: See BSG, judgment of November 9th, 2010, - B 4 AS 27/10 R -, published in the Tacheles case law ticker KW 46/2010.
Health certificate does not protect against reporting to the Arge.
The certificate of incapacity for work in itself does not constitute proof of a health inability to appear at a registration appointment. Health circumstances can be an important reason for non-appearance.
2.3 - Social Court Frankfurt (Oder) judgment of September 2, 2010, - S 21 AS 375/10 -, pending at the LSG Berlin-Brandenburg - L 29 AS 1914/10 -
The assessment of the appropriateness of accommodation costs is not at the discretion of the administration.
Rather, further specification is required, which must be made according to uniform criteria due to the general principle of equality. On the other hand, the rule of law principle requires that the limitation be reliable and predictable (Federal Social Court - BSG -, judgment of September 22, 2009, B 4 AS 18/09 R, para. 12).
2.4 - Social Court Frankfurt (Oder) Court decision of October 21, 2009, - S 21 AS 2059/07 -
Notices of cancellation are only sufficiently determined if it is clear, based on each month and each recipient of benefits, to what extent the cancellation will take place.
According to the case law of the Federal Social Court, the claims to benefits to secure a living in accordance with the Second Book of the Social Code (SGB II) are individual claims, even for people belonging to a community of needs, which are to be calculated on a monthly basis. If a person belonging to the community of needs has been granted insufficient benefits, he or she can request approval of the benefits to which he or she is entitled even if the community of needs as a whole has received benefits in the appropriate amount and the benefits from the basic social security provider only apply to the individual persons within the community of needs were divided incorrectly (judgment of the Federal Social Court of June 18, 2008, Ref.: 14 AS 55/07 R, paras. 27-28). Even for the same person, overpayments for individual months may not be offset against insufficient benefits for other months within an approval period (judgment of the Federal Social Court of September 5, 2007, Ref. B 11b AS 15/06 R, para. 42).
2.5 - Düsseldorf Social Court judgment of October 18, 2010, - S 7 (28) AS 224/08 -
No granting of benefits for the costs of accommodation if the person in need of assistance under the age of 25 has failed to seek professional help to resolve the conflict with her mother to take advantage of.
Failure to involve a professional helper, such as a youth welfare agency, a parenting advisor, a family therapist and, in the case of violence, the police can be an indication that sufficient attempts have not been made to resolve the conflict. Even if the professional contact points described for young adults are offers of help that should not and cannot be imposed, foregoing professional help cannot automatically lead to the easier route to separation through the granting of social benefits (here KdU according to SGB II). finance is. Something different may apply if the rift is so profound that seeking professional help is hopeless from the outset (cf. State Social Court of Saxony-Anhalt, decision of June 16, 2010, Ref. 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 September 23, 2010, – L 8 SO 1/08 –
If the social assistance recipient receives a free lunch through the workshop visit (WfbM) financed by the regional social assistance provider, this justifies a different determination of the standard requirements ((BSG judgment of December 11, 2007, B 8/9b SO 21/06 R).
The lunch provided free of charge in the workshop for disabled people as part of a measure supported by the Federal Employment Agency does not reduce the disabled person's entitlement to social assistance (distinction from BSG of December 11, 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 rental debts is only justified if it is suitable for permanently securing the accommodation. This is not the case if the circumstances that were responsible for the accrued rent arrears cannot be eliminated despite the assumption of the rent debts. This can be assumed in particular if the debtor's behavior allows it to be predicted that timely rental payments in the future can neither be expected with the required regularity nor can be ensured in any other way.
It is questionable whether the social welfare agency is allowed to differentiate the reference rent according to building age classes to determine the abstract appropriateness limit. The reference rent is not intended to determine whether the currently occupied accommodation is appropriate (concrete approach), but rather up to what maximum limit the beneficiary may obtain accommodation in the relevant comparison area (abstract approach) - BSG, March 22, 2010 - B 8 SO 24/ 08 R with reference to Rspr of the BSG on § 22 SGB II: basic BSG, November 7, 2006 - B 7b AS 18/06 R; September 22, 2009 – B 4 AS 18/09 R -. When determining the maximum limit, all building age classes - if necessary statistically weighted - that represent the lower residential segment in the comparison area should be included (see rent index for the city of Essen: BSG, December 17, 2009 - B 4 AS 27/09 R).
Secondly, the social welfare agency determined the lower third solely by means of an arithmetic evaluation of the rent index, without taking into account a frequency distribution based on the basic data or other sources. However, a realistic depiction of the comparison area is questionable because maximum and minimum ranges can determine the reference rent, which may have no statistical relevance on the actual housing market (see: BSG, October 19, 2010 - B 14 AS 50/10 R - Deadline report No. 58/10 No. 2).
4. Note on: BSG 14th Senate, judgment of March 23, 2010 - B 14 AS 1/09 R - , author: Dr. Michael E. Reichel, RiSG, reference: jurisPR-SozR 23/2010 Note 1
If participation in a multi-day school trip depends on previous participation in a one-day event in a manner permitted by school law, these costs are also included in the costs of the multi-day school trip.
Do the costs for the renewal and improvement of sewer connections for the property used by the owner, for which the municipality claims costs or a claim for cost reimbursement, count as operating costs or actual expenses for accommodation and heating that can generally be taken into account within the meaning of Section 22 Paragraph 1 Sentence 1 SGB II ?
Costs for the renewal and repair of the connection channels in a home inhabited by the person in need of assistance must be borne in accordance with Section 22 Paragraph 1 Sentence 1 SGB II, because the reimbursable expenses for accommodation in a home include all necessary expenses associated with the property, which are to be deducted when calculating income from rental and leasing (BSG, judgment of April 15, 2008 - B 14/7b 34/06 R - Rn. 38; Knickrehm/Voelzke/Spellbrink, DSGT practitioner guidelines, costs of accommodation according to § 22 SGB II, p. 19, State Social Court of North Rhine-Westphalia, judgment of February 25, 2010, - L 7 AS 47/09-, appeal pending at the BSG under the AZ.: B 14 AS 61/10 R.
For the assumption of these costs, Section 23 Paragraph 1 SGB II is excluded as the basis for the claim to cover the existing needs. The prerequisites for granting a loan in the event of an unavoidable need within the meaning of Section 23 Paragraph 1 SGB II are not met. According to this, in individual cases, a need to secure one's livelihood that is included in the standard benefits and is unavoidable under the circumstances can be covered by loan benefits if appropriate evidence is provided.
The stated need is to be qualified as an accommodation need because it concerns 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. Because of this differentiation, a different provision of services in accordance with Section 23 Paragraph 1 SGB II is not possible for needs that are not covered by the standard benefit (Bavarian State Social Court judgment of March 18, 2010, - L 11 AS 455/09 -, Federal Social Court B 4 AS 60/10 B from July 1, 2010.
The consortium is not allowed to refer to payment in installments, because individual costs that are due in one sum must be taken into account as actual, current requirements at the time they are due and not spread over longer periods of time. As one-off payments owed, they are part of the current requirement in the month due.
According to Section 22 Paragraph 1 Sentence 1 SGB II, services for accommodation and heating are provided in the amount of the actual expenses, provided these are appropriate. Section 22 Paragraph 1 SGB II covers not only ongoing but also one-off costs for accommodation and heating (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 -). If individual costs are due in one sum, they must be taken into account as actual, current requirements at the time they are due, but not spread over longer periods of time (cf. 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-off payments, they belong to the current requirements in the month due (cf. 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 -).
