1. Decisions of the Federal Social Court of December 15, 2010 on basic security for job seekers (SGB II)
1.1 – BSG judgment of December 15, 2010, – B 14 AS 61/09 R-
The withdrawal of approval notices according to Section 44 Paragraph 1 SGB 10, with which flat rates for hot water preparation were illegally deducted from the heating costs of Section 22 SGB 2, is in accordance with Section 40 Paragraph 1 Sentence 2 No. 1 SGB 2 in conjunction with Section 330 Paragraph 1 SGB 3 also not excluded for the period before the BSG's decision of February 27, 2008 - B 14/11b AS 15/07 R-.
Section 330 Paragraph 1 SGB III does not apply because there was a lack of uniform administrative practice among the municipal service providers with regard to the deduction of the costs of hot water preparation until the BSG's established case law emerged (see also BSG, judgment of June 1, 2010 - B 4 AS 78/09 R -, SozR 4-4200 § 22 No. 36).
juris.bundessocialgericht.de
++ Note: See BSG judgment of June 1, 2010, - B 4 AS 78/09 R -, published in the case law ticker of Tacheles 23/2010 .
The applicability of Section 44 SGB 10 for the retroactive correction of final, unlawful refusals of benefits and additional payment of accommodation costs for the past is not opposed by any special features of SGB 2 that go beyond the legally standardized restrictions.
++ Note: The Tacheles association advises all those affected to submit an application for a review for the period from 2006 to 2010 in accordance with Section 44 SGB X this year if the authority has unlawfully deducted excessive hot water costs.
This is because it corresponds to the established case law of the BSG senates responsible for SGB II that, if a concrete recording of the costs for hot water preparation is not technically possible, in order to prevent double performance (only) the amount included in the standard performance for the preparation of hot water must be deducted from the heating costs (most recently BSG judgment of December 15, 2010, – – B 14 AS 61/09 R -).
A complete deduction of the advance payments to be made for hot water supply from the claimed costs of accommodation and heating in accordance with Section 22 Paragraph 1 Sentence 1 SGB II can only be made if there are technical devices in a household that enable the costs to be recorded in isolation for hot water preparation. Only in this case is it possible for the basic security recipient to control their hot water consumption (cf. BSG, judgment of February 27, 2008 - B 14/11b AS 15/07 R -; judgment of February 19, 2009 - B 4 AS 48/ 08 R -).
As soon as the Standard Requirements Assessment Act comes into effect, the following applies: shortening of the application with regard to benefits of Section 44 SGB X that were wrongly not paid to one year.
According to the case law of the Federal Social Court, the basic standard rate includes 1.8029% and therefore cannot be deducted as a percentage of the heating costs. This results in the following years:
January 2005 to June 30, 2007 (345 euros for single adults = 100%)
Control output 100% share of hot water preparation amounting to 6.22 euros
control output 90% share of hot water preparation amounting to 5.60 euros
control output 80% share of hot water preparation amounting to 4.98 euros
control output 60% share of hot water preparation amounting to 3, 73 euros
The following dynamic values result for the absolute share of household energy (based on 100% of the control power, rounded):
July 1, 2007 – June 30, 2008 |
20.74 EUR x 347 EUR: 345 EUR = 20.86 EUR, 07/01/2008 – 06/30/2009 |
20.86 EUR x 351 EUR: 347 EUR = 21.10 EUR, July 1 , 2009 – until further notice | 21.10 EUR x 359 EUR: 351 EUR = 21.58 EUR.
Taking into account the share of 30% used as a basis by the BSG, the following hot water preparation costs covered by the standard power are calculated for these periods:
July 1, 2007 – June 30, 2008 |
20.86 EUR x 30% = 6.26 EUR, 07/01/2008 – 06/30/2009 |
21.10 EUR x 30% = 6.33 EUR, July 1, 2009 – until further notice | 21.58 EUR x 30% = 6.47 EUR.
This results in the following hot water heating flat rates for the other members of a community of needs:
July 1, 2007 – June 30, 2008 |
(90%) EUR 5.63 (80%) EUR 5.01 (60%) EUR 3.76 July 1, 2008 – June 30, 2009 |
(90%) EUR 5.70 (80%) EUR 5.06 (60%) EUR 3.80 July 1, 2009 – until further notice | (90%) EUR 5.82 (80%) EUR 5.18 (70%) EUR 4.53 (60%) EUR 3.88
The sample review application can be found here: www.harald-thome.de (pdf)
1.2 – BSG judgment of December 15, 2010, – B 14 AS 44/09 R –
Severely disabled, able-bodied recipients of basic security according to SGB II who have the symbol G are not entitled to the additional disability requirements according to Section 21 Paragraph 4 SGB II if they only receive integration assistance for outpatient assisted living.
As already decided, the additional need for employable disabled people in need of assistance due to the granting of benefits for participation in working life requires participation in a regular measure, which is missing here. The employable HB cannot derive a claim to additional needs from a corresponding application of Section 28 Paragraph 1 No. 4 SGB II.
juris.bundessocialgericht.de
++ Note: See BSG judgment of March 22, 2010, - B 4 AS 59/09 R -, published in the case law ticker of Tacheles 19/2010 .
Disabled people who are able to work and need assistance will only receive the additional allowance due to participation in a measure to obtain a place in working life if the measure is suitable.
The entitlement presupposes participation in a regular, special measure that is generally suitable for triggering additional needs on the part of the person concerned (as already expressly stated in BSGE 101, 79 = SozR 4-3500 § 54 No. 1, in each case No. 22). This restrictive interpretation follows from the wording and the specific meaning and purpose of the additional requirement, which can be derived from the history of the standard's origins.
1.3 – BSG decision of December 15, 2010, – B 14 AS 41/09 R-
A settlement was reached that ends the legal dispute, subject to the possibility of revocation.
juris.bundessocialgericht.de
Proceeds from the sale of a home are assets and not income
If people in need of help sell their home according to SGB II, the proceeds may not simply be counted as income towards Hartz IV benefits.
If the owner-occupied home was classified as protective assets by the job center until it was sold, it may not be taken into account in the Hartz IV calculations because the person in need of help has not become richer than before as a result of the sale.
The Federal Social Court considers it possible that not only the money actually received, but also the existing claim against the buyer can be considered assets that must be used for living expenses.
The BSG has not made a fundamental judgment.
www.open-report.de
++ Note: See BSG judgment of August 30, 2010, - B 4 AS 70/09 R -, published in the Tacheles case law ticker KW 46/2010.
The applicant's secured claim from the notarial transfer agreement is assets within the meaning of Section 12 SGB II and not income (Section 11 SGB II).
According to Section 11 Paragraph 1 SGB II, only income in money or monetary value is to be taken into account as income; On the other hand, consideration as assets according to the regulations of Section 12 SGB II is also possible if further exploitation activities are “intermediate”. In addition to movable property and real estate, assets can also include (future due) claims and rights. In this respect, the BSG senates responsible for basic security according to SGB II have stated in connection with the differentiation between income and assets in SGB II, fundamentally based on the case law of the BVerwG on social assistance, that - regardless of the legal fate of a claim - for the consideration of which as income is based exclusively on the generation of income in money or monetary value in the sense of an actual inflow (BSG judgment of September 30, 2008 - B 4 AS 29/07 R - BSGE 101, 291 ff = SozR 4-4200 § 11 No 15, each paragraph no. 18; BSG judgment of July 30, 2008 - B 14 AS 26/07 R - SozR 4-4200 § 11 No. 17 paragraph no. 24; see also BVerwG judgment of February 18, 1999 - 5 C 16/98 - NJW 1999, 3210 ff; also Hänlein in Gagel, SGB II/SGB III, § 12 SGB II RdNr 23 f, as of April 2010).
However, even if the assets are not available, they can be used to secure one's existence.
2. Decisions of the state social courts on basic security for job seekers (SGB II)
2.1 North Rhine-Westphalia State Social Court Resolutions of December 15, 2010, – L 7 AS 1842/10 B ER – and – L 7 AS 1843/10 B –
Changing the application for an obligation into a continuation application for a declaration with the aim of establishing the illegality of the rejection of approval to participate in the retraining is inadmissible in the interim legal protection proceedings (North Rhine-Westphalia State Social Court - LSG NRW -, decision of November 5th, 2010, Ref.: L 19 AS 1684/10 B mwN).
www.socialcourtsability.de
++ Note: See the North Rhine-Westphalia State Social Court decisions of November 5th, 2010, - L 19 AS 1683/10 B ER - and - L 19 AS 1684/10 B -, published in the case law ticker of Tacheles KW 48/2010 .
The assumption of costs for a further training measure within the meaning of Section 77 SGB III as a service for integration in accordance with Section 16 Paragraph 1 Sentence 2 SGB II is an optional service and therefore a discretionary service (LSG NRW, resolutions of September 28th. 2009 - L 19 B 266/09 AS ER mwN and from March 18, 2010 - L 19 AS 308/10 B ER).
It can also be left open to what extent benefits can be awarded by way of interim legal protection in the event of a discretionary decision ordered by law, provided that the discretion has not been reduced to zero. The prerequisite for such an obligation is at least that the discretionary decision to be made is overwhelmingly likely to be in favor of the applicant or that legal protection can no longer be achieved without the requested regulatory order and this would be unreasonable for the applicant (cf. LSG NRW decision of May 28, 2010 - L 19 AS 651/10 B ER – with further case law information).
2.2 - State Social Court of North Rhine-Westphalia decisions of December 1, 2010, - L 19 AS 1862/10 B ER - and - L 19 AS 1863/10 B -
Whether a sanction decision is unlawful because the consortium did not simultaneously make a sufficient decision on the approval of additional benefits in kind (Section 31 Paragraph 3 Sentence 6 SGB II) is controversial in case law.
Whether and to what extent this decision must be linked to the sanction decision has not yet been sufficiently clarified in case law (affirmative SG Berlin decision of July 30, 2010 - S 185 AS 19695/10 ER -; LSG NRW decision of September 9, 2009 - L 7 B 211/09 AS ER -; LSG Berlin-Brandenburg decision of December 16, 2008 - L 10 B 2154/08 AS ER -; rejecting LSG NRW decision of August 13, 2010 - L 6 AS 999/10 B ER - and decision of December 10, 2009 - L 9 B 51/09 AS ER -; LSG Mecklenburg-Western Pomerania decision of August 3, 2009 - L 8 B 260/09 -; see also LSG NRW Judgment of December 9, 2009 – L 12 AS 18/09).
The fact that the resulting reduction of 100 percent is not in accordance with constitutional law (Article 20 Paragraph 3 of the Basic Law - GG) due to a violation of the principle of proportionality is particularly important with regard to the possibility of limiting the reduction to 60 percent, which is according to the will of the legislature should take into account the principle of proportionality (BT-Drucks 16/1696 p. 25; Valgolio in Hauck/Noftz, SGB II, § 31 Rn 108), as well as the assumption of rental debts by the service provider in accordance with § 22 Para. 5 SGB II (cf. Berlit in LPK-SGB II, 3rd edition, § 31 Rn 95) is also not obvious.
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2.3 – State Social Court of North Rhine-Westphalia decision of November 29, 2010, – L 7 AS 1961/10 B –
A complaint from the person in need of help must be rejected if they allege that the service provider deliberately invited them because they are a recipient of a labor market pension.
The service provider according to SGB II in the invitation according to § 59 SGB II in conjunction with § 309 SGB III (for qualification as an administrative act see Berlit LPK-SGB II, 3rd edition 2009, § 31 Rn. 78; Rixen in Eicher/Spellbrink, Commentary on SGB II, 2nd edition 2008, § 31 Rn. 26) of discussing the applicant offer or the HB's professional situation is not called into question by the granting of a temporary pension due to the closed labor market.
According to Section 7 Paragraph 1 Sentence 1 No. 2, Section 8 Paragraph 1 SGB II, anyone who is not able to work for at least three hours a day due to illness or disability for the foreseeable future under the usual conditions of the general labor market is eligible for work. The scope of application of the (judge-developed) labor market pension is limited to pension insurance and cannot be transferred to SGB II. These standards are aimed at integrating those who are able to work into the labor market and tapping into additional employment potential.
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2.4 – State Social Court of North Rhine-Westphalia decision of December 1st, 2010, – L 7 AS 1257/10 B –
Granting of legal aid, because the legal question of whether keeping a pet (in this case a dog) can in individual cases represent a legally significant obstacle to access, which justifies the assumption of higher accommodation costs, has not yet been conclusively clarified.
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2.5 - State Social Court of North Rhine-Westphalia decisions of December 1, 2010, - L 7 AS 789/10 B ER - and - L 7 AS 790/10 B -
According to § 48 SGB
In contrast to the prerequisites of Section 45 Paragraph 2 Sentence 1 SGB protection of trust must be lifted.
If the person in need of help was not heard in accordance with Section 24 SGB § 48, Rn. 14).
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2.6 – State Social Court of North Rhine-Westphalia decision of December 6th, 2010, – L 7 AS 1492/10 B –
Even after the change in the law due to the law on the further development of basic security for job seekers of July 20, 2006, which came into force on August 1, 2006, the exclusion of benefits according to Section 7 Paragraph 4 SGB II) can no longer apply if a prisoner is a prisoner or at least a significant part of them spends his free time outside of the prison (LSG Baden-Württemberg, judgment of January 25, 2008, Ref.: L 12 AS 2544/07, paragraphs 20, 26 and 27; LSG Sachsen, decision of January 7, 2009, L 3 B 349/ 08 AS ER, paras. 33-38).
The legal materials show that the actual exercise of gainful employment lasting at least 15 hours per week should lead to entitlement to benefits under SGB II again because this provides sufficient evidence of the person concerned's ability to work. This must apply all the more if no employment is actually being carried out, but the applicant has been granted relaxations of enforcement with the aim of integrating into the labor market, which even assumes full performance capability. Furthermore, it is absurd to grant basic security to those who are able to work and who are simultaneously employed in accordance with Section 7 Paragraph 4 Sentence 3 of the SGB II, even though they receive benefits in kind from the JVA and additional income from work, while denying this to those who are able to work and are looking for work under the same provision.
www.socialcourtsability.de
++ Note: See State Social Court of North Rhine-Westphalia decision of May 25, 2010, - L 19 AS 504/10 B ER - , published in the case law ticker of Tacheles 22/2010.
According to Section 7 Paragraph 4 Sentence 2 SGB II, anyone who is in a facility for the execution of a court-ordered deprivation of liberty for longer than six months will not receive any benefits under SGB II.
Regarding the question, which is controversial in case law and literature, as to whether someone who is in such an institution can only receive benefits if, as stipulated in Section 7 Paragraph 4 Sentence 3 No. 2 SGB II, they do so under the usual conditions of the general labor market is (actually) employed for at least 15 hours a week (in this sense LSG Berlin-Brandenburg, decision of January 2, 2007 - L 14 B 948/06 AS ER; Valgolio in Hauck/Noftz, SGB II, § 7 Rn 71; op 65), the Federal Social Court (BSG) has already pointed out that the provisions of Section 7 Paragraph 4 SGB II must be interpreted functionally in the sense of the mere possibility of participation in the general labor market. The legislature made this clear by introducing the provision of Section 7 Paragraph 4 Sentence 2 SGB II, which only refers to normal enforcement (cf. BSG, judgment of September 6, 2007 - B 14/7 b AS 60/ 06 R - Rn 16; aA SG Leipzig, judgment of October 27, 2008 - S 17 AS 3040/07 - Rn 15).
++ Note: See Berlin-Brandenburg State Social Court judgment of February 25, 2010, - L 34 AS 883/09 -, published in the case law ticker of Tacheles 12/2010 .
According to Section 7 Para. 4 SGB II new version, anyone who is housed in an inpatient facility for more than six months does not receive any benefits, whereby a stay in an inpatient facility is equivalent to a stay in a facility for the execution of a court-ordered deprivation of liberty (Section 7 Para. 4 p. 2 SGB II). Section 7 Paragraph 4 Sentence 3 No. 2 SGB II provides for an exception to the general exclusion of benefits in Section 7 Paragraph 4 Sentence 1 SGB II if the person who is accommodated in an inpatient facility is actually under the usual conditions of the in the general labor market works at least 15 hours a week. This means that accommodation in an inpatient facility within the meaning of Section 7 Paragraph 4 SGB II has been designed even more clearly as a legal fiction of incapacity for work than in the original version of the law. This fiction can only be refuted by taking up gainful employment for at least 15 hours per week under regular labor market conditions (BSG judgment of September 6, 2007 - B 14/7b AS 16/07 R with reference to Münder/Geiger, SGb 2007, 1, 4) . Access to the benefits of SGB II is therefore only available to people who actually work at least 15 hours a week. For an exception to the exclusion of benefits, however, it is no longer sufficient if the person in need of help expresses their firm intention of wanting to work at least 15 hours per week (according to Brühl/Schoch in LPK-SGB II, 3rd edition 2009, § 7 para. 102; Valgolio in: Hauck/Noftz SGB II, status: August 2008, § 7 para. 71 a).
++ Note: See Saxon State Social Court decision of January 7th, 2009, - L 3 B 349/08 AS-ER -, published in the jurisprudence ticker 07/KW 2009 .
If an inmate is released and spends significant parts of his time outside the prison, the exclusion of benefits according to Section 7 Paragraph 4 SGB II does not apply.
The provision of services was not excluded on the basis of Section 7 Paragraph 4 SGB II. After that, anyone who is housed in an inpatient facility for longer than six months will not receive any benefits. A stay in a facility for the execution of a court-ordered deprivation of liberty is equivalent to a stay in an inpatient facility (paragraph 4, sentence 2). According to the statements in the legal materials (BT-Drucks. 16/1410 p. 20; BT-Drucks. 16/1696 p. 25) it can be assumed that the legislature has made a clarification with this change, which also affects the interpretation of the regulation can be used before the change takes effect (so-called authentic interpretation).
However, the new version does not cover the current part-time stay, which has the special feature that integration into the labor market is intended and the applicant is given partial responsibility for achieving this goal. In significant periods of time, deprivation of liberty no longer takes place.
The exclusion of benefits according to Section 7 Paragraph 4 SGB II cannot therefore apply even after the change in the law if a prisoner is a prisoner or at least spends significant parts of his time outside the prison (Peters in: Estelmann, SGB II, as of 10/06, § 07 68 ff. with reference to LSG Berlin-Brandenburg, decision of February 2, 2006 - L 14 B 1307/05 AS ER; judgment of the LSG Baden-Württemberg of January 25, 2008 - L 12 AS 2544/07 - Rn. 20) .
These legal documents show that the actual exercise of gainful employment lasting at least 15 hours per week should lead to entitlement to benefits under SGB II again because this provides sufficient evidence of the person concerned's ability to work. This must apply all the more in a case such as that of the applicant, who took part in full-time vocational training outside the prison, but could have ended this measure at any time in order to take up a freelance employment relationship of over 15 hours per week. The applicant had also made intensive efforts to secure such an employment relationship. It was only because he did not receive an offer in this regard that he took up the educational measure funded by the European Social Fund. This training measure was carried out with the aim of integration into the labor market. For this purpose, relaxations in enforcement were granted, which even assumed full-time performance.
2.7 - Bavarian State Social Court judgment of February 25th, 2010, - L 7 AS 117/09 -, Federal Social Court B 4 AS 98/10 B of August 27th, 2010.
There is no entitlement to a loan in accordance with Section 23 Paragraph 2 SGB II for legal fees, because legal fees are not included in the standard benefit.
The right to a subsidy for legal costs in the event of a need for assistance is conclusively regulated in the procedural regulations in such a way that, under the conditions specified therein, there is a right to approval of legal aid and the appointment of a lawyer. These provisions take precedence over the regulations on basic security according to SGB II and SGB XII. This results from the fact that the procedural regulations regarding the assessment of the need for help, e.g. For example, § 115 ZPO contains special regulations through which the question of the need for help or the ability to cover the costs of litigation are regulated differently than the provisions of SGB II and SGB XII.
www.socialcourtsability.de
++ Note: See Berlin-Brandenburg State Social Court decision of December 3rd, 2009, - L 29 AS 1752/09 B ER -, published in the case law ticker of Tacheles 03/2010 .
No loan for legal costs
These landlord's legal fees to be borne by the applicant do not represent accommodation and heating costs within the meaning of Section 22 SGB II and therefore cannot be taken over as a loan using this regulation.
The eligibility requirements for the only applicable regulation in Section 23 Paragraph 1 Sentence 1 SGB II have also not been substantiated.
It may be left open as to whether such process costs are included in the standard benefit. In any case, they do not represent a need to secure one's livelihood that is unavoidable under the circumstances. This is because irrefutability within the meaning of this regulation requires, in particular, that the settlement of these claims cannot be postponed (cf. Lang in Eichler/Spellbrink, SGB II, 2nd ed. 2008, § 23 Rn. 27).
2.8 – Bavarian State Social Court decision of October 13, 2010, – L 11 AS 729/10 B ER –
The costs of a confirmation ceremony do not represent an atypical need within the meaning of Section 21 Paragraph 6 SGB II
The costs for new shoes and cleaning of clothes are included in the standard rate; This is not a special need within the meaning of Section 21 Paragraph 6 SGB II.
On the one hand, the catering and accommodation of the guests are not costs that the applicants have to bear, because the organization of the celebration is not the responsibility of the confirmation candidates, but rather of their parents, so that their mother could possibly assert the claim must. This is not an unavoidable need within the meaning of Section 23 Paragraph 1 SGB II - Section 21 Paragraph 6 SGB II is not considered because it is not an ongoing need.
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2.9 – Berlin-Brandenburg State Social Court judgment of November 16, 2010, – L 18 AS 1826/08 –
If an inheritance is received after applying for ALG II, it is income in the month in which it is received under SGB II.
Before the inheritance is received, the initial application for ALG II can only be withdrawn by the HB if the application for ALG II has not yet become final (cf. Striebinger, in Gagel, SGB II, as of June 2009, § 37 Rn. 57 mwN).
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3. Decisions of the social courts on basic security for job seekers (SGB II)
3.1 - Neuruppin Social Court judgments of September 17, 2010, - S 18 AS 1063/09 WA - and - S 18 AS 1064/09 WA -, appeal permitted
Reimbursement of electricity costs is not income to be taken into account in SGB II.
From the wording of Section 11 Paragraph 1 Sentence 1 SGB II there is no further definition of what income is. Only the services mentioned in the second part of the sentence are excluded from consideration from the outset. However, according to the meaning and purpose of the standard, a reimbursement of electricity costs as a result of a periodic electricity cost bill, the advance payments of which were previously made by the person in need of assistance from basic social security funds, cannot be qualified as income either (this also applies to the Federal Employment Agency's information on § 11, paragraph 11.61).
This perspective results from the system of flat-rate payment of benefits without exception according to SGB II (see Spellbrink, in Eicher/Spellbrink, SGB II, 2nd edition 2008, § 20 Rz. 4). These are the result of the fundamental right to guarantee a humane minimum subsistence level (see Federal Constitutional Court (BVerfG), judgment of February 9, 2010 - 1 BvL 1/09) and, in accordance with Section 3 Paragraph 3 Sentence 1 2nd Hs. SGB II, cover the entire subsistence requirement Needs, in particular food, clothing, household goods, accommodation, heating, hygiene, health and participation in social, cultural and political life. A different determination of requirements is excluded in accordance with Section 3 Paragraph 3 Sentence 2 SGB II (see BSG, judgment of June 18, 2008 - B 14 AS 22/07 R). A key component of these benefits is the standard benefit in accordance with Section 20 SGB II. This is made available in its entirety to those in need of help and is used to help them lead a self-responsible life (BT printed matter 15/1514, p. 50, 52; 15/1516, p. 46) . Those in need of help should therefore be able to decide for themselves which basic needs they want to use the standard benefit for and to what extent. This means that those in need of help can make savings in certain areas of need in order to have more resources available for other areas of need. Savings can also be made in this way to meet larger needs. The flat rate means that the savings made by those in need of help are not viewed as lost needs and can therefore be used to “cut benefits”. At the same time, savings should not be viewed as quasi-fictitious income that is available to those in need of help to cover their living expenses.
The system of strict flat rates chosen by the legislature must apply without exception. This means that savings are not only disregarded if they come about because those in need of help only partially use up their standard benefit and "save" the remaining funds for other needs or for a later date. The same must also apply to savings that the person in need of help makes indirectly, ie via a third party (here: electricity supplier). This applies in any case if independent use of the standard service is not possible without the third party, as the third party only offers its goods through flat-rate advance payments and a final invoice that follows later (with corresponding repayments/additional demands).
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3.2 - Social Court Neuruppin Court decision dated November 30, 2010, - S 26 AS 1166/10 -
According to Section 26 Paragraph 4 SGB II, the additional statutory health insurance contribution can be paid for unemployment benefit II and social benefit recipients for whom changing health insurance in accordance with Section 175 SGB V represents a particular hardship.
According to the wording of the norm, special hardship within the meaning of Section 26 Paragraph 4 SGB II can only exist if the hardship that affects the recipient of unemployment benefit II as a result of the change in health insurance differs from what affects everyone who is affected faces the imposition of an additional contribution. A hardship can only be special if it does not mean the general hardship of the additional contribution.
The law assumes in Section 242 Paragraph 1 Sentence 3 SGB V that every insured person - regardless of their income and therefore even if they are a recipient of benefits under SGB II - can be expected to pay an additional contribution of eight euros per month. If an insured person considers paying the additional contribution unreasonable for themselves, they have the option of terminating their membership in the relevant health insurance company in accordance with Section 175 Paragraph 4 Sentence 5 SGB V and switching to another health insurance company that does not charge an additional contribution.
This means that the legislature basically assumes that every insured person can initially be expected to change health insurance. The general hardship that an additional contribution brings with it cannot therefore be sufficient to justify it being taken over by the service provider in accordance with SGB II.
The additional contribution of 8 euros cannot be taken over according to Section 21 Paragraph 6 SGB II, because with the provision of Section 26 Paragraph 4 Sentence 1 SGB II there is already a simple legal basis for claims, which is a form of the one created by the Federal Constitutional Court is to be understood as a constitutional basis for claims and which displaces them (see also Federal Social Court, judgments of August 19, 2010, - B 14 AS 47/09 R and B 14 AS 13/10 R-).
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4. Info so 2010 issue 6
Constitutionality of the Asylum Seekers Benefits Act by Georg Classen/Ibrahim Kanalan:
www.info-also.nomos.de
5. Questions and answers about basic security according to SGB II
Can contributions for legal protection insurance be deducted from income?
No deduction of contributions for legal protection insurance, because if there is a need for legal protection and an existing need for help, claims for advice and legal aid can be asserted ((see e.g. BSG, judgment of September 29, 2009 - B 8 SO 13/08 R, Rn 22).
The Tacheles association wishes all readers a Merry Christmas.
