The assumption of a community of need according to § 7 para. 3 no. 4 SGB II, unlike the community of responsibility and support according to § 7 para. 3 no. 3c SGB II, does not require a willingness to support on the part of the parents.
The legislator assumes that parents are responsible for their children if the children live in the same household, are unmarried, under 25 years of age, and can support themselves (see BT-Drs. 16/688, p. 14). It is also irrelevant whether the son would have had a civil law claim for maintenance against his parents.
In the area of subsistence benefits, the legislator may, when considering whether the use of state funds is justified, deviate from the regulations of maintenance law and assume, as a general rule, that family members living together in a household support each other (Federal Social Court – BSG –, judgment of 19.10.2010, file no. B 14 AS 51/09 R).
An inheritance received from a life insurance policy after applying for ALG II (unemployment benefit II) is considered income (BSG, judgment of 17.06.2010, B 14 AS 46/09 R, para. 15 with further references).
The decisive factor is the realization of the claim against the insurance company. The fate of the underlying claim is then irrelevant for the distinction between income and assets (Federal Social Court, judgment of October 28, 2009, B 14 AS 62/08 R, para. 24).
It is justified, within the meaning of Section 12 Paragraph 3 Sentence 1 No. 6 SGB II, to take funeral expenses into account as reducing income.
Debts are not to be taken into account, as the means test under the German Social Code, Book II (SGB II), does not require a balancing of all assets and liabilities. This follows from the principle of subsidiarity in state welfare, which should only intervene when the person in need has exhausted all available resources (Federal Social Court, judgment of February 18, 2010, B 4 AS 28/09 R, para. 22).
Lump sum payments are not provided for by law with regard to the typically incurred maintenance needs (BSG judgment of March 3, 2009, B 4 AS 38/08 R, SozR 4-4200 § 22 No. 17).
Eligible expenses include actual costs for necessary repairs or maintenance, provided these do not lead to an improvement in the standard of the owner-occupied home and are reasonable.
This presupposes that they are necessary for securing and maintaining the accommodation and for preserving its habitability (Federal Social Court judgment of February 18, 2010, - B 4 AS 28/09 R - , para. 20).
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The appeal must be dismissed as inadmissible, because an incorrect instruction on legal remedies does not regularly constitute a decision on the admissibility of the appeal (cf. BSG, SozR 3-1500 § 158 No. 1).
The plaintiff did not file an appeal against the refusal of leave to appeal; a reinterpretation of the inadmissible appeal as an appeal against the refusal of leave to appeal is inadmissible (see BSG, judgment of 20 May 2003, file no.: B 1 KR 25/01 R, SozR 4-1500 § 158 no. 1).
According to Section 1105 of the German Civil Code (BGB), a property can be encumbered in such a way that recurring payments from the property are to be made to the person in whose favor the encumbrance is made. In the case of a real burden, the property is thus encumbered with the real right to the payment of recurring payments from the property and with the real right to payment of each individual payment (cf. Bassenge in Palandt, BGB, 69th ed. 2010, before Section 1105, marginal note 1).
According to § 37 SGB II, benefits are provided upon application; the provision of benefits before the application is excluded, § 37 para. 2 SGB II.
Section 28 of the German Social Code, Book X (SGB X) also applies to the German Social Code, Book II (SGB II) (see von Wulffen, SGB X, 7th edition 2010, Section 28, marginal note 6). If a social benefit such as sickness benefit or unemployment benefit I (ALG I) has not been denied or its reimbursement has not been requested, the conditions of Section 28 SGB X are not met.
If a person entitled to benefits has refrained from submitting an application for a social benefit because a claim for another social benefit has been asserted, and this benefit is refused or must be reimbursed, the application now submitted retroactively has effect for up to one year according to Section 28 Sentence 1 of the German Social Code, Book X (SGB X).
According to Section 28 Sentence 2 of the German Social Code, Book X (SGB X), such retroactive effect also occurs if the timely application for another benefit was omitted due to lack of knowledge about its eligibility requirements and the second benefit would have been subordinate to the first benefit if it had been provided.
A non-waivable flat-rate fee for basic services in the area of outpatient assisted living, linked to the rental agreement, is part of the costs of accommodation within the meaning of Section 22 Paragraph 1 of the German Social Code, Book II (SGB II).
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. The wording of the provision does not restrict it to specific legal arrangements; it covers both typical forms of rental and ownership. The aim is to cover the basic need for accommodation, and this need is met according to Section 22 Paragraph 1 SGB II by covering the corresponding costs. Accordingly, the question of what constitutes accommodation costs must also be based on the conditions and offerings of the respective market. This includes all expenses that the person in need inevitably incurs in order to obtain or maintain accommodation; the decisive factor is solely the impossibility of obtaining the accommodation without these expenses (cf. Stuttgart Social Court, Judgment of September 27, 2006 – S 15 SO 6319/05 -).
A cohabiting partnership is a long-term community based on shared responsibility and support. Whether or not sexual relations exist between the partners is irrelevant.
If a recipient of unemployment benefit II is housed in a dormitory that charges a specific daily rate as rent for accommodation and heating, including all ancillary costs such as energy and hot water, and if the basic income support provider for job seekers assumes the costs of accommodation and heating by paying the daily rates due directly to the dormitory, the basic income support provider may not reduce the standard benefit granted to the benefit recipient by an energy allowance (for household energy and hot water costs).
No reduction of the standard benefit of 30 euros per month if the person in need lives in a residential home.
Household energy costs include, among other things, electricity consumption, cooking energy, lighting, and hot water preparation (Federal Social Court, judgment of February 27, 2008, – B 14/11 b AS 15/07 R). Because these costs are to be covered by the standard benefit, they cannot be deducted from the benefit at this point, at least not without the recipient's express consent (see also Federal Social Court, judgment of December 16, 2008, B 4 AS 9/08 R)
If they are part of a flat-rate calculation of accommodation costs, they must be deducted from that amount.
Additional heating costs for an apartment no longer occupied by the person in need of assistance must be considered as a current need at the time it becomes due.
If the additional claim relates to a need that arose during the period of the recipient's need for assistance and has not yet been covered, it constitutes actual expenses to be borne by the benefit provider pursuant to Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (BSG Judgment of March 22, 2010, B 4 AS 62/09 R).
If the benefit provider has covered the advance payments for heating costs during the billing period, subsequent heating cost claims must also be covered in full even if the benefits for accommodation and heating have later been reduced to a reasonable amount.
If the benefit provider has reduced the benefits for accommodation and heating to a reasonable amount during the billing period, any additional heating costs must be covered, provided the heating costs are not found to be unreasonably high. The assessment of the reasonableness of heating costs must be carried out separately from the assessment of the reasonableness of accommodation costs. In Berlin, the nationwide heating cost index, not the Berlin heating cost index, is used for this purpose. In Berlin, a living space of sixty square meters is considered reasonable for a two-person household.
The additional operating costs for the former apartment of a Hartz IV recipient must be paid.
The question of whether operating cost arrears must also be covered if the tenancy from which they originate no longer exists at the time the operating cost arrears are due, but the beneficiary is in need at the time of the due date, has fundamental significance beyond the individual case.
Operating cost arrears must also be covered as current needs pursuant to Section 22 Paragraph 1 of the German Social Code, Book II (SGB II), even if the tenancy from which they originate no longer exists at the time the operating cost arrears are due, provided the beneficiary is in need at the time the payment is due; Section 22 Paragraph 5 of the German Social Code, Book II (SGB II) and Section 37 Paragraphs 1 and 2 of the German Social Code, Book II (SGB II) do not preclude this.
A fax transmission report with an OK confirmation serves as proof of receipt of the objection by the person in need of assistance at the job center.
In 2008, the Higher Regional Courts of Karlsruhe and Celle heard expert testimony on the question of the evidentiary value of a fax transmission report.
The Federal Social Court (BSG) now also assumes that the transmission report can prove the establishment of a telephone connection (judgment of October 20, 2009, B 5 R 84/09 B). In the specific case, the first page of the sent fax was also reproduced (facsimiled) on the transmission report, so that the content of the transmitted objection could be proven simultaneously with the transmission report.
Source: Attorney Jan Haeussler, http://www.jan-haeussler.de/Downloads/SG_DUI_10_12_03.pdf
++ Note: See also the decision of the Higher Social Court of North Rhine-Westphalia of 26 March 2007, – L 20 B 324/06 AS –
For the assessment of transmission by fax, the physical document created at the place of receipt is decisive. A fax is therefore only considered received when it is printed by the recipient. A transmission report thus does not constitute proof of receipt. The fax transmission log merely proves that the connection was established. The principles of prima facie evidence do not generally apply to receipt and are not specifically established by the "OK" confirmation in the transmission report. Even if the sending of the notice of objection is credibly demonstrated or proven, this does not reverse the burden of proof for receipt of the objection, which rests with the objector.
The legislator has not granted the benefit provider under the German Social Code, Book II (SGB II), the right to make an official medical examination the subject of an integration agreement established by administrative act.
Because, in light of the sensitive protection of health data as part of the general right of personality, the legislator has established a balanced regulation according to which the person requesting benefits cannot be treated against their will as if they had consented to an official medical examination.
This follows directly from the structure of the law. Section 31, paragraph 2 of the German Social Code, Book II (SGB II) stipulates:
If an employable person in need of assistance fails to comply with a request from the responsible agency to report to him or to fail to appear at a medical examination appointment, despite written notification of the legal consequences, and does not provide a valid reason for his behavior, the ALG II (unemployment benefit II) will be reduced in a first stage by ten percent of the standard benefit applicable to the employable person in need of assistance according to § 20 SGB II, without the supplement according to § 24 SGB II.
Had the legislator intended that failure to attend a scheduled examination could be considered a violation of a corresponding integration agreement, he would not have enacted Section 31 Paragraph 2 of the German Social Code, Book II (SGB II).
If there are doubts about the employability of the person in need of assistance, failure to attend a scheduled examination may justify a decision to refuse assistance in accordance with Sections 60, 62 and 66 of the German Social Code, Book I (SGB I).
Source: Tacheles – Readers
++ Note: See also Bremen Social Court decision of 01.10.2010 , – S 18 AS 1928/10 ER -, published in the case law ticker of Tacheles KW 43/2010 .
A breach of the duty to cooperate, expressly stipulated in Section 59 of the German Social Code, Book II (SGB II) in conjunction with Section 309 of the German Social Code, Book III (SGB III) (here, the duty to undergo a medical examination), permits the application of the sanctions provided for in Section 31, Paragraph 2 of the SGB II. The provisions of Section 31 of the SGB II constitute specific regulations. These regulate graduated sanctions. The complete withdrawal of standard benefits by recourse to the provisions of Sections 62 and 66 of the German Social Code, Book I (SGB I) is not permissible. The SGB II contains a comprehensive regulatory framework in this respect.
For a single-person household in Bremen, a gross rent excluding utilities of up to 385.00 euros is considered reasonable.
This results from the fact that, since January 1, 2009, the values in the newly revised table for Section 8 of the Housing Benefit Act (WoGG) must be used to determine the appropriate rent within the meaning of Section 22 Paragraph 1 of the German Social Code, Book II (SGB II), as a concrete assessment of appropriateness based on a local, market-standard rent level is not possible due to the lack of suitable rent indices or rent databases. In such a case, it is ultimately permissible to refer to the maximum rent limits from the table for Section 8 of the Housing Benefit Act (WoGG), which was updated on January 1, 2009.
Social Court Bremen, decision of 12 November 2010, – S 21 AS 2191/10 ER – ; Social Court Bremen, decision of 22 January 2009, file no. 21 AS 01/09 ER; decision of 10 February 2009, file no. S 26 AS 186/09 ER; Federal Social Court judgment of 18 February 2010, file no. B 14 AS 73/08 R; regarding the housing benefit table valid until 31 December 2008, see Federal Social Court judgment of 7 November 2006 – B 7b AS 18/06 R –; Higher Administrative Court Bremen, decision of 9 July 2007 – S1 B 183/07 and S1 S 184/07 –; Decision of 18 April 2007 – S1 B 94/07 –; Decision of 22 February 2008 – S2 B 423/07, S2 B 424/07 and S2 B 66/08 –; Recourse to the table pursuant to Section 8 of the Housing Benefit Act (WoGG) is permissible at least in expedited proceedings: Decision of 28 April 2008 – S2 B 145/08 and S2 S 146/08 – with further references; Bremen Administrative Court, Decision of 18 June 2007 – S8 V 1072/07 –; Decision of 31 March 2008 – S1 V 260/08 –; Schleswig-Holstein Higher Social Court, Judgment of 11 July 2008 – L 11 AS 38/07 –; SG Hannover, Judgment of 10.12.2008 – S 54 AS 743/08 -).
Social law: The law on securing one's livelihood
The new Hartz IV rules
Standard benefit increases, the responsibilities of the ARGEn (Joint Employment Agencies), hardship provisions, educational opportunities for children, accommodation costs, sanctions: As with hardly any other reform, the new regulations in basic income support law will have to be critically commented on and measured against the standards of the Federal Constitutional Court.
Our introductory works, text collections, commentaries, and handbooks accompany this process. All volumes take into account the new regulations that will come into effect on January 1, 2011. The complete program is our contribution to the discussion of the reform objectives and their impact on practice.
Nomos The Law on Securing Livelihoods – The New Hartz IV Rules
Can a previous request to reduce costs justify a reduction in benefits when benefits are claimed again after a longer period of employment?
A previous request to reduce costs cannot justify a reduction in benefits when benefits are claimed again after a longer period of employment
If a recipient of social assistance has not been receiving basic income support under the German Social Code, Book II (SGB II) for more than one year and was able to cover their housing costs, which are deemed unreasonable under basic income support law, from their available income during this time, they cannot be immediately confronted with a past request to reduce their housing costs after reapplying for benefits. Instead, pursuant to Section 22, Paragraph 1, Sentence 3 of the SGB II, they must be granted a transitional period to reduce their housing costs. During this period, their actual housing costs must be taken into account as a need when calculating benefits, pursuant to Section 22, Paragraph 1, Sentence 1 of the SGB II.
However, this prior notification cannot suffice to serve such a warning function if – as in this case – a considerable period of time – longer than a year in the case of permanent employment – lies between the termination of benefit receipt and the re-entry into benefit receipt. If benefit recipients – as in this case – worked until immediately before resuming benefit receipt and were able to cover their – as in this case – unreasonably high housing costs with the income from their work, then they must be granted another period to reduce their unreasonable housing costs. During the time they were not receiving benefits, they were no longer incentivized to reduce their housing costs. For the subsequent period, the actual need for housing costs must again be taken into account, applying the basic rule in Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II) (agreeing with Lauterbach in Gagel, Commentary on the German Social Code, Book III and Book II, Section 22 SGB II, marginal note 57; Frank in Hohm (ed.), GK SGB II, Section 22, marginal note 51 and decision of the Lower Saxony-Bremen State Social Court of May 18, 2009 – L 9 AS 529/09 B ER – with commentary by Padé, jurisPR-SozR 25/2009, published in the Tacheles case law ticker 04/2010).
