1.1 – Federal Social Court (BSG) judgment of 19 October 2010 – B 14 AS 15/09 R –
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 (cf. BSGE 104, 192 = SozR 4-4200 § 22 No. 30, para. 12).
The 4th Senate of the Federal Social Court (BSG) has already subjected the underlying concept of the basic income support provider under Book II of the German Social Code (SGB II) of the city of Wilhelmshaven, which cannot rely on a qualified rent index (cf. regarding the creation of a conclusive concept based on the data of a rent index, the judgments of the 14th Senate of the BSG of 19 October 2010 – B 14 AS 65/09 R; B 14 AS 2/10 R; B 14 AS 50/10 R), to a thorough legal review (BSG judgment of 22 September 2009 – B 4 AS 18/09 R = BSGE 104, 192 = SozR 4-4200 § 22 No. 30 para. 19 ff).
If, after exhausting all investigative possibilities, no further means of ascertaining the reasonable costs of accommodation are available, the actual maintenance expenses are to be covered up to the amount of the table values moderately increased by a supplement within the meaning of Section 8 of the Housing Benefit Act (see, in particular, the Federal Social Court's judgment of December 17, 2009 – B 4 AS 50/09 R = SozR 4-4200 § 22 No. 29; see also the Senate's judgment of August 20, 2009 – B 14 AS 65/08 R = SozR 4-4200 § 22 No. 26, in particular paragraph 21).
The entitlement to heating costs pursuant to Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II) initially exists in the amount of the specific, individually claimed expenses. A lump sum payment is inadmissible. Only if the heating costs exceed a limit amount determined from a nationwide or municipal heating cost index are they generally no longer considered reasonable (for determining the value from this so-called nationwide heating cost index, see most recently the Federal Social Court (BSG) judgment of October 19, 2010 – B 14 AS 15/09 R –, paragraph 21 and the Federal Social Court (BSG) judgment of July 2, 2009 – B 14 AS 36/06 R –, paragraph 22).
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – Baden-Württemberg State Social Court, Judgment of 16 December 2010 – L 7 AS 6055/09 –, Appeal on points of law is granted
Those in need of assistance are not entitled to an assurance of the adequacy of the basic rent for their current accommodation pursuant to Section 22 Paragraph 2 of the German Social Code, Book II (SGB II). Nor is there an entitlement to a discretionary decision free from errors of judgment regarding the issuance of such an assurance pursuant to Section 22 Paragraph 1 of the SGB II in conjunction with Section 34 of the German Social Code, Book X (SGB X).
According to Section 11 Paragraph 3 No. 2 of the German Social Code (SGB II), compensation paid for non-pecuniary damages pursuant to Section 253 Paragraph 2 of the German Civil Code (BGB) is exempt from the income crediting to be carried out in accordance with the provisions of Sections 11 and 30 of the SGB II.
According to § 253 para. 2 BGB (formerly § 847 BGB), fair compensation in money can also be demanded for non-pecuniary damage if compensation is payable due to an injury to the body, health, freedom or sexual self-determination.
The payments made on the basis of the labor court settlements are not based on physical, health, or freedom damage, nor on a violation of the plaintiff's right to sexual self-determination, but rather, according to the background and course of the labor court disputes, on a violation of his personal rights through a misapprehension of his specific rights as a severely disabled person.
However, this does not preclude the assumption that the payments received by the applicant constitute compensation for pain and suffering within the meaning of Section 253 Paragraph 2 of the German Civil Code (BGB) or Section 11 Paragraph 3 No. 2 of the German Social Code, Book II (SGB II). For, according to established case law (e.g., BGHZ 39, 124; BGH NJW 1971, 689), civil law jurisprudence also grants compensation for pain and suffering in cases of violation of personal rights, by analogy to Section 253 Paragraph 2 of the German Civil Code (BGB) or its predecessor provision in Section 847 of the German Civil Code (BGB).
The legislator had expressly incorporated this case law into the will of the predecessor provision of Section 11 Paragraph 3 No. 2 SGB II in the form of Section 77 of the Federal Social Assistance Act (BSHG). The excerpt from the materials accompanying the draft of Section 77 of the Federal Social Assistance Act (Bundestag printed matter 7/308 of March 13, 1973, p. 17, item 24) states: "Pain and suffering compensation payments under Section 847 of the German Civil Code (BGB) and the question of their consideration as income are playing an increasingly important role, especially due to the rise in traffic accidents. Although the Federal Social Assistance Act (BSHG) contains no specific provision on this matter, social assistance providers often do not consider pain and suffering compensation as income because it is paid for non-material damages, the compensation for which is not covered by social assistance, and because its consideration is therefore perceived as a hardship. This consideration also underlies the proposed regulation. The new paragraph 2 is intended to encompass the entire scope of application of Section 847 of the German Civil Code (BGB), including cases in which the courts have granted a claim for pain and suffering compensation based on Section 847 of the German Civil Code (BGB)..." (see also Brühl in LPK-BSHG, 6th edition, Section 77 BSHG). (Paragraphs 96, 97 with further references). The legislator of the German Social Code, Book II (SGB II), did not intend any change to the legal situation under the Federal Social Assistance Act (BSHG), but rather a regulation of income consideration essentially the same as in social assistance law. Specifically regarding the introduction of the exceptions in Section 11 Paragraph 3 of the SGB II, the draft of a Fourth Act for Modern Services on the Labor Market (Bundestag printed matter 15/1516 of September 5, 2003, p. 53 on Section 11) states: "Paragraph 3 is also based on social assistance law and excludes certain income from consideration due to its nature or intended purpose." Accordingly, the interpretation of Section 11 Paragraph 3 No. 2 of the SGB II is also linked to that of the predecessor provision in Section 77 Paragraph 2 of the BSHG (e.g., Brühl in LPK SGB II, 3rd edition, Section 11 Paragraph 71 with further references).
The payments received by the plaintiff based on the labor court settlements are nominally compensation payments pursuant to Section 15 Paragraph 2 of the German General Equal Treatment Act (AGG). According to Section 15 Paragraph 2 Sentence 1 of the AGG, an employee may demand reasonable monetary compensation for non-pecuniary damages.
According to Section 15 Paragraph 2 Sentence 2 of the German General Equal Treatment Act (AGG), compensation for non-hiring may not exceed three months' salary if the employee would not have been hired even under a non-discriminatory selection process. The wording of the provision itself reveals a close relationship to Section 253 Paragraph 2 of the German Civil Code (BGB), and commentary also considers Section 15 Paragraph 2 AGG a special provision within the meaning of Section 253 Paragraph 1 BGB, according to which "fair compensation" can be claimed for non-pecuniary damages. The occurrence of non-pecuniary damages is presumed in the event of a violation of the prohibition of discrimination (Bauer/Göpfert/Krieger, AGG, 2nd edition, Section 15, marginal note 34).
Based on the background of the labor court disputes and the wording chosen in the settlements, the payments received by the applicant constitute compensation for non-pecuniary damages due to the disregard of his specific rights as a severely disabled person in the application process.
Accordingly, commentary on the German Social Code, Book IX (SGB IX), also considers compensation payments based on violations of the obligations under Section 81 SGB IX to be neither subject to social security contributions nor to being offset against benefits under the German Social Code, Book II (SGB II) (Schröder in Hauck/Noftz, SGB-GK, Section 81 SGB IX, marginal note 27). For a claim for compensation to exist, it is considered sufficient if it cannot be ruled out that the severe disability was included as a negative criterion in a set of motives that influenced the employer's decision (Fabricius in juris-PK-SGB IX, Section 81 SGB IX, marginal note 34).
2.3 – North Rhine-Westphalia State Social Court, Judgment of 11 December 2010 – L 9 AS 480/10 –
The landlord of a person receiving assistance under the German Social Code, Book II (SGB II), cannot demand that the social security provider cover rent arrears and renovation costs of his previous apartment.
The applicant cannot rely on legal entitlements under the German Social Code, Book II (SGB II), because as the landlord of a benefit recipient, he is not himself entitled to benefits under the SGB II from the outset due to a lack of need for assistance (§ 7 para. 1 sentence 1 no. 2, § 9 para. 1 SGB II).
A job seeker is not prevented from requesting the social security agency to pay the costs of accommodation and heating directly to their landlord. In both cases, the social security agency fulfills the recipient's entitlement (§ 194 of the German Civil Code (BGB) in conjunction with § 22 para. 1 of the German Social Code, Book II (SGB II)) to secure their basic housing needs, even though it does not pay the recipient directly (§ 362 para. 1 BGB), but rather a third party – the recipient's landlord – the corresponding payment for accommodation and heating (§ 22 para. 1 SGB II) is made as a cash payment (§ 362 para. 2 BGB) with the recipient's consent (§ 185 BGB), which is automatically substituted by law in the case of § 22 para. 4 SGB II. This payment simultaneously fulfills the recipient's contractual obligation to pay rent to their landlord (§ 362 para. 1 BGB) – now in the relationship between the recipient and their landlord.
Against this background, neither the landlord's economic interest in a solvent and reliable payer in the form of the social security provider, nor the social security provider's public interest in ensuring accommodation and heating for those in need, is sufficient to assume that the social security provider, by declaring that it will "assume" the accommodation costs for the person in need and pay them directly to the landlord, intends to establish its own legally binding obligation to the landlord. This situation is generally best served by an interpretation that understands the content of the declaration of assumption of costs as the social security provider informing the landlord of the tenant's current entitlement to assistance covering accommodation costs and (provided the need for assistance continues) simultaneously announcing a specific administrative procedure for the payment transaction, namely the transfer of the amounts payable under the rental agreement directly to the landlord. This procedure eliminates the risk that a tenant entitled to social security benefits will not forward the accommodation payments received to the landlord, or will not do so in a timely manner. As explained above, this takes into account both the landlord's interest and the public interest pursued by the basic income support provider in the effective provision of benefits (cf. regarding the above: BVerwG, judgment of 19.05.1994, 5 C 33/91, BVerwGE 96, 71).
Therefore, special circumstances must exist to justify the assumption that a declaration of assumption of costs issued by the social security provider to the landlord is not limited to notifying the entitlement to social security and the direct method of payment, but aims to do more, namely to establish a legally binding payment obligation to the landlord. Above all, it is necessary that the social security provider has unequivocally expressed its intention to be legally bound.
The conflict of interests between the landlord and the social security provider alone does not, in case of doubt, justify the assumption of a landlord's claim (cf. again Federal Administrative Court, judgment of 19 May 1994, 5 C 33/91, BVerwGE 96, 71; similarly, judgment of the deciding Senate of 19 March 2009, L 9 SO 9/07; in effect also Gerenkamp in: Mergler/Zink, SGB II, § 22 para. 38 (as of August 2007); Berlit in: LPK-SGB II, 3rd ed. 2009, § 22 para. 116: "landlord only reflexively favored").
2.4 – North Rhine-Westphalia State Social Court, decision of 17 December 2010 – L 19 AS 1323/10 B –
The self-occupied house, of which the person in need of assistance is the sole owner, is not a suitable house within the meaning of Section 12 Paragraph 3 Sentence 1 No. 4 of the German Social Code, Book II (SGB II), because the suitable living space for a two-person household (cf. regarding the consideration of house residents who are not members of a benefit unit when determining the limit of suitability: Federal Social Court judgment of March 29, 2007 – B 7b AS 12/06 R – Rn 23) is 90 square meters.
The living space of 100 square meters exceeds the appropriate living space of 90 square meters, even if an excess of up to 10% of the appropriate living space is taken into account (cf. BSG judgment of 07.11.2006 – B 7b AS 2/05 R – Rn 23 and of 19.05.2010 – B 8 SO 7/08 R – Rn 19).
It is also not apparent that the utilization of the property by selling, mortgaging or renting individual living spaces (see regarding utilization options for a property: Federal Social Court judgment of 16 May 2007 – B 11b As 37/06 R – para. 31) is obviously uneconomical (cf. regarding the concept of uneconomicalness: Federal Social Court judgment of 6 May 2010 – B 14 AS 2/09 R – para. 22 with further references) or unreasonable within the meaning of Section 12 para. 3 sentence 1 no. 6 SGB II (cf. regarding the concept of particular hardship: Federal Social Court judgment of 6 May 2010 – B 14 AS 2/09 R – paras. 25f with further references).
Until their ability to work is clarified, those in need of assistance are entitled to basic income support benefits under the German Social Code, Book II (SGB II) (§ 44 a SGB II).
For disabled persons working in a sheltered workshop, it cannot necessarily be assumed without further examination that the person concerned is incapable of working (LSG Rheinland-Pfalz, judgment of 29.09.2009 – L 3 AS 24/08 Rn. 45).
According to Section 44a of the German Social Code, Book II (SGB II), the Federal Employment Agency determines whether a job seeker is capable of working and in need of assistance. If the local authority or another agency that would be responsible in cases of total incapacity for work objects to this determination, the joint conciliation board decides. Until the conciliation board reaches a decision, the Federal Employment Agency and the local authority provide basic income support for job seekers. This is because Section 44a SGB II does not mandate provisional benefits, but rather establishes a seamless transition provision modeled on Section 125 of the German Social Code, Book III (SGB III). This follows from the wording and ultimately the purpose of the provision. The aim is, firstly, to prevent disputes between the providers of basic income support and social assistance from being resolved "at the expense of the person in need." Therefore, according to Section 44a, Paragraph 1, Sentence 3 SGB II, the ability to work is presumed, and the basic income support provider's obligation to provide benefits continues until the conciliation board has made its decision. For the benefit of the person in need of assistance, it should be ensured that he or she is not "caught in the middle" (BSG, judgment of 07.11.2006 – B 7b AS 10/06 R Rn. 19 f. cited according to juris; LSG NRW, decision of 17.02.2009 – L 7 B 326/08 AS ER; Blüggel in Eicher/Spellbrink, Commentary on the SGB II, 2nd edition 2008, § 44a Rn. 2, 29, 30). Furthermore, the purpose of Section 44a Paragraph 1 Sentence 3 of the German Social Code, Book II (SGB II), which requires a broad interpretation, dictates that this regulation also applies if the basic income support provider assumes a lack of employability but has not attempted to clarify the matter with the responsible benefit provider under the German Social Code, Book XII (SGB XII) (Federal Social Court [BSG], loc. cit., para. 20, cited according to juris; Blüggel, loc. cit., para. 23). The person in need of assistance must be treated as if they were employable, not only in the event of an existing dispute between the benefit providers until a decision is reached by the conciliation board after it has been called upon, but also in the preliminary stages (cf. BSG, loc. cit.).
2.6 – North Rhine-Westphalia State Social Court, decision of 20 December 2010, – L 19 AS 1918/10 B ER –
Since the decision of the North Rhine-Westphalia State Social Court of 13 August 2010 – L 7 AS 1069/10 B ER – has become unappealable, its legal force therefore precludes the applicant's renewed application for a preliminary order compelling the respondent to assume the contribution arrears and grant health insurance coverage from 1 August 2010 in accordance with the provisions of the German Social Code, Book II (SGB II).
Decisions issued in preliminary injunction proceedings become legally binding, regardless of whether they grant or reject the application, provided no further legal remedy is available (see decisions of the Senate of 22 June 2009 – L 19 B 126/09 AS ER – with further references to case law and of 10 March 2008 – L 19 B 139/07 AS ER –, LSG Baden-Württemberg decision of 8 September 2010 – L 7 SO 3038/10 ER-B – with further references; Keller in Meyer-Ladewig/Keller/Leitherer, SGG, 9th ed., § 86b para. 45).
Even in preliminary injunction proceedings, there is a need to counteract continued disputes among the parties regarding the same subject matter through the institution of res judicata, to avoid burdens on the courts, and to counter the risk of conflicting decisions (see decision of the Senate of 22.06.2009 – L 19 B 126/09 AS ER – with further references).
Only if, after the judgment has become legally binding, new facts have arisen or the legal situation has changed, justifying a different assessment of the facts relevant to the decision, is a repeated application for an interim injunction permissible (LSG Baden Württemberg decision of 08.09.2010 – L 7 SO 3038/10 ER-B – with further references).
The mere fact that the person in need of assistance uses the landlord's apartment building, of which the landlord is the sole owner, for residential purposes does not imply that they share a common apartment.
Shared living is characterized at least by the fact that the residents share rooms whose use is essential for independent living, such as the kitchen, bathroom, and hallway.
According to Section 7 Paragraph 3 Number 3c of the German Social Code, Book II (SGB II), a person who lives with an employable person in need of assistance in such a way that, upon reasonable assessment, a mutual intention to assume responsibility for and support one another can be assumed, is considered part of the household as a partner of that person, in this case the applicant. Such a mutual intention is presumed, among other things, according to Section 7 Paragraph 3a Number 1 of the SGB II as amended on August 1, 2006, if the partners have lived together for more than one year. If the factual prerequisites of the presumption rule according to Section 7 Paragraph 3a of the SGB II are met, the employable person in need of assistance bears the burden of proof to the contrary. If an employable person in need of assistance wishes to refute the legal presumption, he must provide evidence that either the indicative facts required by the presumption rule do not exist, or that other indicative facts exist that refute the presumption that there is a mutual intention to bear responsibility for one another and to stand up for one another.
It is unnecessary to determine here whether Section 7 Paragraph 3a of the German Social Code, Book II (SGB II) merely establishes a presumption regarding the mutual willingness of partners to support each other as required by Section 7 Paragraph 3 Number 3c SGB II, or whether it also extends to the element of cohabitation in a shared household required by Section 7 Paragraph 3 Number 3c SGB II (as apparently held by the Federal Social Court (BSG) in its judgment of January 27, 2009 – B 14 AS 6/08 R). In any case, the application of the presumption in Section 7 Paragraph 3a SGB II presupposes that the partners at least share a household (cf. regarding the concept of a shared household: BSG judgment of June 18, 2008 – B 14/11b AS 61/06 R – paragraph 22).
3.1 – North Rhine-Westphalia State Social Court, decision of 08.12.2010 – L 12 SO 484/10 –
No reimbursement of electricity cost arrears according to § 28 SGB XII due to chronic illnesses and extended stay at home.
According to Section 28 Paragraph 1 Sentence 1 of the German Social Code, Book XII (SGB XII), the entire cost of necessary living expenses outside of institutions, with the exception of benefits for accommodation and heating and special needs as defined in Sections 30 to 34 of the SGB XII, is covered by standard rates. The standard rate includes an amount for electricity/household energy. Therefore, ongoing electricity costs are generally to be financed from the standard rate. The same applies to any subsequent payments. It is the responsibility and right of the benefit recipient to manage their consumption. In this case, there is no evidence of an unavoidable need that deviates significantly in amount, and this is particularly evident from the fact that, according to the recipient, they spent more time at home last year.
In this case, there is also no entitlement to the assumption of outstanding electricity costs under Section 34 Paragraph 1 of the German Social Code, Book XII (SGB XII). According to Section 34 Paragraph 1 Sentence 1 SGB XII, debts can only be assumed if this is justified to secure accommodation or to remedy a comparable emergency. A comparable emergency is assumed if a disconnection of the electricity or heating supply due to existing debts is imminent or has already occurred. While there are indeed arrears in this case, it is neither apparent nor demonstrated that a disconnection of electricity is imminent or that the electricity supply contract has already been terminated. It should be noted, however, that the assumption of debts, even under the conditions of Section 34 Paragraph 1 Sentence 1 SGB XII, is only possible if it is justified. Finally, monetary benefits under Section 34 SGB XII are not necessarily to be granted as subsidies. According to Section 34 Paragraph 1 Sentence 3 SGB XII, they can also be provided as loans.
4. – Federal Constitutional Court decision of 7 December 2010 – 1 BvR 2628/07 –
The abolition of unemployment benefits with effect from 1 January 2005 is compatible with the Basic Law.
If a supreme federal court rejects the appeal against the refusal to grant leave to appeal because it considers all essential aspects of a constitutional question to have already been clarified in its jurisprudence, this does not preclude the admissibility of the constitutional complaint if the complainant can cite reasonable and weighty reasons for a review of this legal question and if it is an unresolved constitutional question.
The statutory entitlement to unemployment assistance under Sections 190 to 206 of the Social Code, Book Three, in the version applicable until December 31, 2004, was not subject to the fundamental right to property protection under Article 14 Paragraph 1 of the Basic Law.
5. Current case law of the Federal Social Court on the German Social Code, Book XII (Part 2), treatise by Pablo Coseriu, Judge at the Federal Social Court
6. Questions and answers about basic income support under the German Social Code, Book II (SGB II)
Is it constitutionally permissible to consider a de minimis threshold of EUR 50.00 in accordance with Section 1 Paragraph 1 No. 1 of the Unemployment Benefit II/Social Assistance Ordinance (ALG II-VO) in the area of income crediting under the German Social Code, Book XII (SGB XII)?
The definition of income under Book XII of the German Social Code (SGB XII) and the method of income crediting are initially derived from Sections 82 et seq. of SGB XII and the Ordinance Implementing Section 82 SGB XII. The fact that income from capital assets also falls under this definition, and how such income is to be specifically calculated and credited, is conclusively determined by Section 6 of the Ordinance Implementing Section 82 SGB XII. Furthermore, there is now established case law from the Federal Social Court (Bundessozialgericht) regarding the distinction between income and assets under SGB II and SGB XII (BSG, Judgment of August 30, 2010 – B 4 AS 70/09 R – para. 15, with further references; Wahrendorf in: Grube/Wahrendorf, Commentary on SGB XII, 3rd edition 2010, Section 82, paras. 13 et seq., with further references). The principles established there also apply with regard to income from capital assets (BSG, judgment of 30.09.2008 – B 4 AS 57/07 R – Rn. 17 ff., with further references).
Interest payments from savings accounts are considered monetary income and must be taken into account as income of the benefit recipient. This also applies if the interest-bearing capital is protected assets (Federal Social Court, judgment of 30 September 2008 – B 4 AS 57/07 R – para. 17).
The question of whether, for constitutional reasons, a de minimis threshold of EUR 50.00 may also be taken into account in the area of income crediting under the German Social Code, Book XII (SGB XII), in accordance with Section 1 Paragraph 1 No. 1 of the Unemployment Benefit II/Social Assistance Ordinance (ALG II-VO), does not constitute a legal question that establishes the fundamental importance of the case.
The Federal Social Court has already ruled that the income assessment under the German Social Code, Book II (SGB II) and Book XII (SGB XII), follows different legal provisions in detail and that there are sufficient justifications for the unequal treatment (BSG, judgment of 18 February 2010 – B 4 AS 29/09 R – para. 35 et seq., with further references; BSG, judgment of 21 December 2009 – B 14 AS 42/08 R – para. 25 et seq., with further references).
