1.1 – BSG , Judgment of 09.11.2010 , – B 4 AS 37/09 R –
To remedy a failure to hear the affected party in the administrative proceedings, a formal hearing procedure by the administration is required during the court proceedings.
The 4th Senate of the Federal Social Court (BSG) follows the previous case law of the BSG, according to which a subsequent hearing in court proceedings requires at least a corresponding more or less formal administrative procedure – possibly with suspension of the court proceedings (BSG SozR 3-1300 § 24 No. 22 p. 74; BSG judgment of 6 April 2006 – B 7a AL 64/05 R; see also BSG SozR 4-5868 § 3 No. 3 para. 17). The prevailing opinion in the literature also follows the view that the subsequent hearing pursuant to Section 41 Paragraph 1 No. 3 of the German Social Code, Book X (SGB X) must take place during the court proceedings in a special administrative procedure (Schütze in von Wulffen, SGB X, 7th edition 2010, Section 41 marginal note 16; Waschull in LPK-SGB X, 2nd edition 2007, Section 41 marginal note 15; Gregarek in Jahn, SGB, as of 2010, Section 41 SGB X marginal note 22).
Outside of the administrative procedure, the rectification of the missing hearing requires that the actions which, according to Section 24 Paragraph 1 of the German Social Code, Book X (SGB X), should have been taken before the issuance of the adverse administrative act, be carried out by the administration until the conclusion of the judicial fact-finding process.
The Federal Social Court (BSG) disagrees with the notion that this is merely an empty formality. The hearing requirement stipulated in Section 24 of the German Social Code, Book X (SGB X), would lose all meaning if the violation could be remedied in court proceedings without any formalized procedure. Rather, only the aforementioned procedural requirements can ensure that the purposes pursued by the hearing procedure are at least partially achieved. With the regulation concerning the hearing, the legislator intends to generally strengthen the relationship of trust between citizens and the social welfare administration and to strengthen the citizen's position, in particular by protecting them from surprise decisions (Bundestag Printed Matter 7/868, pp. 28 and 45). In particular, the person concerned should be given the opportunity to influence the impending administrative decision by presenting his arguments on the facts relevant to the decision (BSGE 75, 159 = SozR 3-1300 § 24 No. 10; BSGE 69, 247, 252 = SozR 3-1300 § 24 No. 4; BSG SozR 3-1300 § 24 No. 21).
The aforementioned purposes can only be fully achieved if the hearing is held before the adverse administrative act is issued. Furthermore, the procedural defect can be remedied during the objection proceedings, given the functions pursued by the hearing, if the affected party has been given sufficient opportunity during the preliminary proceedings – e.g., by filing an objection – to comment on the facts relevant to the decision (BSGE 89, 111, 114 = SozR 3-1300 § 1 No. 1; BSG SozR 4-1300 § 24 No. 1).
The purposes of Section 24 of the German Social Code, Book X (SGB X) require that the subsequent procedural action be carried out in a situation comparable to the hearing procedure, if possible.
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – Berlin-Brandenburg State Social Court, decision of 22 December 2010, – L 34 AS 2182/10 B PKH –
No appeal against the rejection of legal aid is admissible if an appeal on the merits is not permissible due to failure to reach the required value in dispute (see decision of the Senate of 13 May 2009, – L 34 B 2136/08 AS PKH-).
An incorrect instruction on legal remedies cannot open a legal remedy that is excluded by law (Leitherer in Meyer-Ladewig/Keller/Leitherer, SGG, 9th edition 2008, before § 143 marginal note 14b with further references).
The Senate maintains its position even in view of the amendment to Section 172 Paragraph 3 No. 1 of the Social Court Act (SGG) with effect from August 11, 2010 by the Third Act Amending Book Four of the Social Code and Other Acts of August 5, 2010 (Federal Law Gazette I 1127).
Accordingly, appeals against decisions denying legal aid in preliminary injunction proceedings are inadmissible if an appeal would not be admissible in the main proceedings. While the legislature has thus expressly stipulated an exclusion of appeals in the area of preliminary injunction proceedings, no further regulatory intent can be inferred from the legislative materials.
The legislator, aware of the highly controversial question in case law as to whether the appeal is also excluded if the appeal on the merits would not be admissible by operation of law without further ado (cf. BT-Drucks. 17/1684 p. 22 f.), felt it necessary only to regulate the corresponding exclusion of appeals in preliminary injunction proceedings.
Whether it can be concluded from this that the legislator, by implication, intended to extend the admissibility of appeals in main proceedings contrary to Section 73a Paragraph 1 Sentence 1 of the Social Court Procedure Act (SGG) in conjunction with Section 127 Paragraph 2 Sentence 2, second half-sentence of the Code of Civil Procedure (ZPO), or whether he considers a corresponding provision simply superfluous because, in his view, the aforementioned provision excludes the corresponding appeal, or whether he believes that Section 172 Paragraph 3 of the SGG contains a conclusive provision regarding the exclusion of appeals in social court proceedings, i.e., that a corresponding appeal should be admissible in main proceedings, cannot be determined from the legislative materials. In the latter case, it would have been obvious, for example, to remove Section 127 Paragraph 2 Sentence 2, second half-sentence of the ZPO from the reference in Section 73a Paragraph 1 Sentence 1 of the SGG. However, the legislator refrained from doing so without stating the reasons for this. Only the Federal Government has indicated that it will examine this issue in further legislative proceedings (Bundestag printed matter 17/1684, p. 25; see, among others, the following regarding the state of opinion: decision of the Higher Social Court of Hesse of October 4, 2010 – L 7 AS 436/10 B – , decision of the Higher Social Court of Berlin-Brandenburg of September 27, 2010 – L 20 AS 1602/10 B – ., contra: decision of the Higher Social Court of Berlin-Brandenburg of December 6, 2010 – L 19 AS 1384/10 B PKH – ).
2.2 – State Social Court of Saxony-Anhalt, decision of 03.01.2011, – L 5 AS 423/09 B ER –
Homeowners receiving benefits under the German Social Code Book II (SGB II) are only entitled to an inexpensive door from a DIY store, because even cost-conscious and thrifty homeowners with low incomes would opt for a simple front door.
2.3 – Saxon State Social Court decision of 30 November 2010, – L 3 AS 649/10 B ER –
No benefits will be granted to secure the livelihood, not even in the form of a loan, if the applicant is enrolled even during the leave of absence semester, as evidenced by the enrollment certificate.
This alone leads to the exclusion of benefits, according to the case law of the Saxon State Social Court (Case No. L 7 AS 337/10 B ER, L 7 AS 756/09 B ER).
The applicant's studies are, in principle, eligible for funding under the Federal Training Assistance Act. The fact that the applicant is on leave of absence for two semesters does not preclude this eligibility in principle. In this respect, the deciding panel concurs with the jurisprudence of the 7th Senate of this court (see Saxon State Social Court, decision of June 28, 2010 – L 7 AS 337/10 B ER – JURIS document, para. 17 et seq.; Saxon State Social Court, decision of June 29, 2010 – L 7 AS 756/09 B ER – JURIS document, para. 20 et seq.; Saxon State Social Court, decision of November 11, 2010 – L 7 AS 435/10 B ER [not published]; Saxon State Social Court, decision of November 16, 2010 – L 7 AS 53/10 B ER [not published]. Contra: Saxon State Social Court, decision of January 13, 2010 – L 2 AS 762/09 B ER [not published]).
The crucial point here is that even during a leave of absence semester, attendance at an educational institution in the sense of organizational affiliation with that educational institution (cf. BSG, judgment of August 19, 2010 – B 14 AS 24/09 R – para. 17, with further references) is not interrupted and studies can be pursued in accordance with the university regulations.
2.4 – Baden-Württemberg State Social Court, decision of 13 December 2010, – L 13 AS 4732/10 B –
A recipient of Hartz IV benefits is not entitled to a loan for sterilization.
The desire not to have any more children does not constitute an additional need within the meaning of Section 23 Paragraph 3 of the German Social Code, Book II (SGB II) or Section 21 Paragraphs 2 to 6 of the SGB II, nor does Section 23 Paragraph 1 of the SGB II establish a legal basis for an entitlement. While the costs of sexual activity and the associated contraceptive costs are covered by the standard benefit under Section 20 Paragraph 1 of the SGB II, which generally opens the scope of application of Section 23 Paragraph 1 of the SGB II, Section 23 Paragraph 1 Sentence 1 of the SGB II only provides for the possibility of financing needs through a loan if, under the circumstances, the need is unavoidable for securing one's livelihood. A need is unavoidable if its fulfillment cannot be postponed. However, a need is not unavoidable if it can be satisfied with limited resources or by resorting to another means of meeting the need (Münder in LPK-SGB II, 2nd edition, § 23 para. 9).
2.5 – North Rhine-Westphalia State Social Court, decision of 20 December 2010, – L 7 AS 65/10 NZB –
Defects in the determination of facts cannot be raised by way of an appeal against the refusal of leave to appeal, because in this respect the Social Court is the court with more expertise and the application for an oral hearing is the correct legal remedy.
If a violation of the right to be heard is alleged, a request for an oral hearing must therefore be filed (Leitherer in Meyer-Ladewig/Keller/Leitherer, 9th edition 2008, § 145 para. 3c). However, if a request for an oral hearing and an appeal against the denial of leave to appeal are filed simultaneously, the request for an oral hearing takes precedence pursuant to § 105 para. 2 sentence 3 of the Social Court Act (SGG). With the (timely) request for an oral hearing, the court order is deemed not to have been issued pursuant to § 105 para. 3 SGG, so that there is no basis for granting leave to appeal against the decision. (cf. Higher Social Court – LSG – Berlin-Brandenburg, decision of January 14, 2008, file no.: L 25 B 795/07 AS, para. 2; Higher Social Court Berlin-Brandenburg, decision of November 26, 2008, file nos. L 20 AS 1478/08, L 20 B 2254/08 AS NZB). Therefore, it is unnecessary to decide in this case whether the legal remedy of an appeal against the refusal of leave to appeal against a court order is even available (contra Zeihe, SGG, as of October 1, 2010, § 105 para. 14 b).
2.6 – North Rhine-Westphalia State Social Court, decision of 14 December 2010, – L 7 AS 1536/10 B ER –
According to Section 22 Paragraph 5 Sentence 1 of the German Social Code, Book II (SGB II), debts can also be assumed if benefits for accommodation and heating are being provided. They should be assumed to the extent that this is justified to secure accommodation or to remedy a comparable emergency (Section 22 Paragraph 5 Sentence 2 SGB II). When exercising discretion regarding the assumption of energy arrears, a comprehensive overall assessment of the individual circumstances must take into account, among other things, the amount of the arrears, the causes that led to the energy cost arrears, the composition of the group of people threatened with a potential energy disconnection, the possibilities and reasonableness of alternative energy supply, past behavior (e.g., first-time or repeated arrears), and a demonstrable willingness to help oneself (Berlit in LPK-SGB II, 3rd edition 2009, Section 22, marginal note 127).
Finally, a benefit to secure accommodation that is not reasonably priced is generally not justified (cf. Lang/Link in Eicher/Spellbrink, Commentary on the SGG, 2nd edition 2008, § 22 para. 109).
The question of whether a person in need of assistance requires a special, costly diet pursuant to Section 21 Paragraph 5 of the German Social Code, Book II (SGB II) due to an illness depends on their individual circumstances and therefore does not constitute a legal matter of fundamental importance within the meaning of Section 144 Paragraph 2 No. 1 of the German Social Courts Act (SGG) (see Higher Social Court of Saxony – Decision of February 15, 2010 – L 3 AS 780/09 NZB – Rn 29; Higher Social Court of Berlin-Brandenburg – Decision of December 9, 2009 – L 10 AS 1717/09 NZB – Rn 4).
Granting of legal aid for the unresolved legal question of whether the respondent's view that Section 22 Paragraph 2a of the German Social Code, Book II (SGB II) also applies to subsequent moves is correct (for application only to initial occupancy: Saxon State Social Court, judgment of September 10, 2009, L 3 AS 188/08, para. 39; Lang/Link in Eicher/Spellbrink, Commentary on the SGB II, 2nd edition 2008, Section 22 para. 80b; Berlit in LPK-SGB II, 3rd edition 2009, Section 22 para. 89; contra Piepenstock, jurisPK-SGB II, 2nd edition 2007, Section 22 para. 104).
2.9 – North Rhine-Westphalia State Social Court, Judgment of November 25, 2010, – L 7 AS 57/08 – , Appeal is granted
No assumption of the repayment installments for the installment payment to fulfill a purchase price for the acquisition of the property, if an impending foreclosure has not even been alleged.
The wording of Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II) does not preclude the consideration of loan repayments or purchase price installments. For owner-occupied apartments, the total financing costs, including loan repayments, are considered actual housing expenses. The purpose of the benefit does not preclude the assumption of loan repayments (see Federal Social Court [BSG], Judgment of June 18, 2008, B 14/11b AS 67/06 R, paragraphs 25, 26). The legislator generally places high value on maintaining one's home, regardless of whether it is rented or owned by the recipient. However, since unemployment benefit II (Alg II) is intended to secure subsistence and is not generally meant to serve asset accumulation, the assumption of loan repayments by the basic income support provider is, according to the case law of the Federal Social Court, only justified if the costs in the form of loan repayments are unavoidable for maintaining home ownership. Therefore, before claiming state benefits, the person in need must take all possible steps to keep their debt repayment obligations as low as possible while receiving basic income support. This includes examining whether other options, such as a deferral or extension of repayments, were available (Federal Social Court [BSG], ibid., para. 30). Furthermore, the basic income support provider can only cover financing costs, including repayments, up to the amount that a person in need would have to pay for housing in a suitable rental apartment (BSG, ibid., para. 28). Within the framework of the assessment of appropriateness, Section 22 Paragraph 1 of the German Social Code, Book II (SGB II) does not justify preferential treatment of homeowners over renters (BSG, judgment of November 7, 2006, B 7b AS 2/05 R; judgment of November 7, 2006, B 7b AS 8/06 R).
In contrast to the decision of the Lower Saxony-Bremen State Social Court of November 19, 2009 (L 6 AS 374/06), pending before the court of appeal (B 14 AS 79/10 R), which addressed the question of whether the loss of owner-occupied residential property is imminent without the assumption of installment payments, the present case requires a focus on a concrete risk. However, no such risk existed.
2.10 – North Rhine-Westphalia State Social Court, decision of 22 December 2010, – L 19 AS 2075/10 B ER –
Benefits from a private accident insurance policy due to disability do not constitute protected income under Section 11 Paragraph 2 No. 1a or No. 2 of the German Social Code, Book II (SGB II).
The credit of a disability benefit from a private group accident insurance constitutes income eligible for consideration within the meaning of Section 11 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), which, as a one-off income within the meaning of Sections 4 and 2 Paragraph 3 of the Unemployment Benefit II Ordinance (Alg II-V), is to be credited against the monthly assistance requirement of the applicant pursuant to Section 9 Paragraph 1 No. 2 of the German Social Code, Book II (SGB II).
Income within the meaning of Section 11 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II) is generally anything of value that someone receives after submitting an application, regardless of the designation and legal nature of the benefit in kind (see Federal Social Court (BSG) judgment of June 1, 2010 – B 4 AS 89/09 R – para. 16 with further references to case law). Considering a benefit in kind that accrues to a benefit recipient only after submitting an application as income does not require either an identity of purpose between the benefit in kind and the benefits under the SGB II or an identity of time period. The payment of a disability benefit due to the consequences of an accident from a private accident insurance policy is also not privileged income within the meaning of Section 11 Paragraph 3 Sentence 1 of the SGB II. It is not apparent that an agreement exists between the accident insurance company and the applicant from which it objectively becomes clear that the benefit is to be used by the applicant for a specific purpose. Rather, this payment is compensation for a permanent impairment of physical or mental integrity suffered as a result of the accident. Like benefits under the German Social Code, Book II (SGB II), it serves to secure the applicant's livelihood as the beneficiary and is not subject to any further earmarking, so that it is not a benefit earmarked for a specific purpose within the meaning of Section 11 Paragraph 3 Sentence 1 No. 1a SGB II (cf. regarding the requirements for a private-law earmarking: Federal Social Court (BSG) judgment of June 1, 2010 – B 4 AS 89/09 R – paragraphs 16f with further case law references). Furthermore, this is not compensation within the meaning of Section 253 Paragraph 2 of the German Civil Code (BGB), i.e., compensation for non-material damage to be provided by the liable party, but according to the letter from the private accident insurance company dated July 7, 2010, compensation for a health impairment to the right arm, i.e., loss of earning capacity due to impairment of performance as a result of the insured risk (cf. regarding payments from a private accident insurance: LSG NRW decision of January 5, 2010 – L 1 B 29/09 AS – LSG Sachsen judgment of March 13, 2008 – L 2 AS 143/07 -).
The fact that the payment from private accident insurance was used to pay off debts does not preclude its consideration as reducing the need for benefits. This is in accordance with established case law of the Federal Social Court (BSG judgment of December 16, 2008 – B 4 AS 70/07 R – para. 28).
++ Note: See also the decision of the North Rhine-Westphalia State Social Court of 05.01.2010 , – L 1 B 29/09 AS – , published in the case law ticker of Tacheles 02/2010 .
A one-off disability benefit of EUR 3650 paid from private accident insurance must be considered as income for the person in need of assistance, spread over 12 months.
3. Decisions of the social courts on basic income support for job seekers (SGB II)
Section 31 Paragraph 1 Sentence 1 Number 1 b) of the German Social Code, Book II (SGB II) cannot be applied to integration decisions. This follows from the clear wording of the provision, which refers to an integration agreement. The prerequisite is therefore a validly concluded and not void integration agreement within the meaning of Section 15 Paragraph 1 Sentence 1 of the SGB II (see Berlit, in LPK-SGB II, 3rd edition 2009, Section 31, marginal note 28).
The term "integration agreement" in Section 31 Paragraph 1 Sentence 1 Number 1 b) of the German Social Code, Book II (SGB II) is not to be understood in a broad sense encompassing integration notices. This follows from the legal definition in Section 15 Paragraph 1 Sentence 1 of the SGB II. According to this definition, an integration agreement is an agreement with an employable person in need of assistance regarding the services required for their integration. Therefore, an agreement with the person in need of assistance regarding the content and conclusion of integration arrangements is required. An integration notice does not fulfill this requirement. In this case, the benefit provider unilaterally determines the integration arrangements. Integration notices are therefore not within the scope of Section 15 Paragraph 1 Sentence 1 of the SGB II, but are addressed separately under Section 15 Paragraph 1 Sentence 6 of the SGB II. The integration agreement and the integration notice are two procedural options available to the benefit provider, both serving a similar purpose but fundamentally different. It is not apparent that the legislator intended to deviate from this in Section 31 Paragraph 1 Sentence 1 No. 1 b) of the German Social Code, Book II (SGB II).
Section 31 paragraph 1 sentence 1 no. 1 b) of the German Social Code, Book II (SGB II) cannot be applied analogously to integration decisions. This is contrary to the clear wording of the provision. Furthermore, the provision, as a sanction standard with serious financial consequences for those in need of assistance, must be interpreted strictly according to its wording (see, in this regard, the decisions of the Higher Social Court of North Rhine-Westphalia of 8 July 2009 – L 19 B 140/09 AS ER; the Higher Social Court of Hesse of 9 February 2007 – L 7 AS 288/06 ER; the Higher Social Court of Bavaria of 9 November 2007 – L 7 B 748/07 AS; Rixen in Eicher/Spellbrink, SGB II, 2nd ed. 2008, § 31 para. 13a; Valgolio in Hauck/Noftz, SGB II, § 31 para. 34).
This is made clear by the now available draft bill for the Act on the Determination of Standard Needs and the Amendment of Books Two and Twelve of the Social Code of October 26, 2010 (Bundestag printed matter 17/3404, pp. 36, 182 et seq.). According to this draft, Section 31 of Book Two of the Social Code (SGB II) is to be amended as of January 1, 2011, insofar as Section 31 Paragraph 1 Sentence 1 No. 1 of the draft SGB II (which is intended to replace the current Section 31 Paragraph 1 Sentence 1 No. 1 b) of the SGB II) will also explicitly mention integration notices. According to the explanatory memorandum, this serves to clarify that a violation of obligations stipulated in an integration notice will have the same legal consequences as a violation of obligations stipulated in an integration agreement. Contrary to the respondent's view, no conclusions can be drawn from this to the effect that the clarification of the legal situation as of January 1, 2011, is also intended to clarify the legislator's intent regarding the interpretation of the current Section 31 Paragraph 1 Sentence 1 No. 1 b) of the German Social Code, Book II (SGB II). Rather, the intended revision of Section 31 SGB II demonstrates that the drafters are responding to criticism from case law and legal literature and intend to eliminate shortcomings in the existing sanction provisions. Thus, not only are integration decisions included in Section 31 Paragraph 1 Sentence 1 No. 1 of the draft SGB II, but the aforementioned Section 31 Paragraph 1 Sentence 1 No. 1 a) of the SGB II is also to be deleted. The clarification in the explanatory memorandum therefore serves merely to express this intent clearly. – No intention of retroactive effect or clarification to the effect that the new version would have corresponded to the legislator's existing regulatory intent can be inferred from this!!!
3.2 – Social Court Neuruppin, decision of April 26, 2010, – S 18 AS 429/10 ER –
No presumption of maintenance obligations in the case of shared accommodation between relatives.
According to Section 9 Paragraph 5 of the German Social Code, Book II (SGB II), if a person in need of assistance lives in a household with relatives or relatives by marriage, it is presumed that they receive support from them, insofar as this can be expected based on their income and assets. Section 9 Paragraph 5 of the SGB II thus contains a rebuttable presumption that the person in need of assistance is supported by their relatives or relatives by marriage if a household community exists. It follows that this presumption only applies once a household community has been established. Therefore, unlike Section 36 Sentence 1 of the German Social Code, Book XII (SGB XII), Section 9 Paragraph 5 of the SGB II does not contain a legal presumption for the existence of a household community (cf. Federal Social Court, Judgment of January 27, 2009 – B 14 AS 6/08 R-). The mere fact that relatives or relatives by marriage live together in a household is not sufficient for such a community to exist. Rather, beyond mere shared accommodation, the household must be managed jointly in the sense of an economic community (cf. Federal Social Court, judgment of February 19, 2009 – B 4 AS 68/07 R-). According to the explanatory memorandum to the draft of the Fourth Act for Modern Services on the Labor Market of September 5, 2003 (Bundestag printed matter 15/1516, p. 53), this is the case when relatives or in-laws share expenses with the person in need of assistance living in the same household (Mecke in Eicher/Spellbrink, SGB II, 2nd edition 2008, § 9 para. 52). The requirements for joint management therefore extend beyond the shared use of the bathroom, kitchen, and common areas. Even the common practice in shared accommodation of jointly purchasing basic foodstuffs, cleaning supplies, and toiletries from a communal fund contributed equally by all residents does not, in itself, establish an economic community (see Federal Social Court [BSG], judgment of January 27, 2009, loc. cit.). Rather, in addition to shared living arrangements, the circumstances of the individual case must demonstrate that a portion of the need for assistance is met through shared financial management with relatives (Mecke in Eicher/Spellbrink, SGB II, 2nd edition 2008, § 9, para. 52 et seq.). The respective social security agency must affirmatively establish the existence of such an economic community among several relatives or in-laws living together in one apartment (see Federal Social Court [BSG], judgment of January 27, 2009 – B 14 AS 6/08 R-).
The mixed standard rate does not apply to a household in which one partner receives ALG II and the other partner receives benefits under the Asylum Seekers' Benefits Act (AsylbLG).
Section 20 Paragraph 3 of the German Social Code, Book II (SGB II) does not apply. The normative context between Section 20 Paragraph 3, Paragraph 1, and Paragraph 2 Sentence 1 of the SGB II limits the direct scope of application of Section 20 Paragraph 3 of the SGB II to a household consisting of two partners entitled to benefits under the SGB II (cf. Berlin-Brandenburg Higher Social Court, judgment of April 14, 2010, L 10 AS 1228/09; see also Münster Social Court, judgment of June 2, 2010, S 3 AS 262/08 – pending before the North Rhine-Westphalia Higher Social Court under L 1 AS 1311/10).
However, in the case of asymmetrical benefit claims, only a corresponding application of this provision is possible (cf. Federal Social Court, judgment of 16.10.2007, B 8/9b SO 2/06 R). However, a corresponding application of Section 20 Paragraph 3 of the German Social Code, Book II (SGB II) is not warranted in the present case, i.e., in the case of a partner-based household consisting of a person entitled to benefits under the SGB II and a recipient of benefits under Section 3 of the Asylum Seekers' Benefits Act (AsylbLG) (see Higher Social Court of Berlin-Brandenburg, judgment of April 14, 2010, L 10 AS 1228/09; Higher Social Court of Hamburg, judgment of September 2, 2010, L 5 AS 19/08; Social Court of Münster, judgment of June 2, 2010, S 3 AS 262/08; contra: Social Court of Duisburg, judgment of December 11, 2009, S 31 AS 261/08 or decision of November 19, 2009, S 31 AS 414/09 ER).
The mixed standard rate does not apply to a household in which one partner receives ALG II and the other partner receives benefits under the Asylum Seekers' Benefits Act (AsylbLG).
The provision in Section 20 Paragraph 3 of the German Social Code, Book II (SGB II), according to which the standard benefit is only 90% if two members of the household are over 18 years of age, does not apply to households where one adult member receives benefits under the SGB II, while the other adult member only receives basic benefits under Section 3 of the Asylum Seekers' Benefits Act (AsylbLG) (see also Higher Social Court of Berlin-Brandenburg, Judgment of April 14, 2010 – L 10 AS 1228/09-; Decision of May 3, 2007 – L 18 B 472/07 AS, FEVS 58, pp. 573 ff.; Social Court of Hamburg, Decision of April 24, 2008 – S 56 AS 796/08 ER, InfAuslR 2009, pp. 39 f.; Krauß, in: Hauck/Noftz, SGB II, Section 20). Rn. 69, as of March 2008; O. Loose, in: Hohm, SGB II, § 20 Rn. 53.1, as of March 2008).
++ Note: See LSG Berlin, L 10 AS 1228/09, judgment of 14.04.2010, appeal pending before the BSG under file number: – B 14 AS 105/10 R- , published in the case law ticker of Tacheles 30/2010 .
The mixed standard rate does not apply to a household in which one partner receives ALG II and the other partner receives benefits under the Asylum Seekers' Benefits Act (decision of the Berlin-Brandenburg State Social Court of 03 May 2007, L 18 B 472/07 AS).
3.4 – Gießen Social Court, Judgment of 28 October 2010, – S 25 AS 775/10 –
The Gießen district's concept regarding accommodation costs is not conclusive.
According to the case law of the Federal Social Court, the data basis chosen by the basic income support provider must provide sufficient assurance that the current conditions of the local housing market are reflected, which can be the case, among other things, if it is based on at least 10% of the rental housing stock to be considered regionally (Judgment of 18.06.2008, B 14/7b AS 44/06 R, paragraph 16).
4. Decisions of the State Social Courts on Social Assistance (SGB XII)
4.1 – Rhineland-Palatinate State Social Court, Judgment of 25 November 2010, – L 1 SO 8/10 –
The granting of social assistance is not formally dependent on an application.
Since Section 18 of the German Social Code, Book XII (SGB XII) aims to ensure low-threshold access to the social assistance system to protect those in need, it is sufficient for the assumption of knowledge within the meaning of this provision that the need for assistance is demonstrated or otherwise recognizable. Further investigation of the facts is then the responsibility of the social assistance provider (Section 20 of the German Social Code, Book X (SGB X); cf. Federal Social Court (BSG), judgment of August 26, 2008 – B 8/9b SO 18/07 R –, SozR 4-3500 § 18 No. 1). However, the social assistance provider is not expected to anticipate the need for assistance. The applicant's obligation to cooperate in determining their needs and eligibility does not, however, relieve the social assistance provider of its duty to investigate, so that knowledge cannot be said to have been acquired only when all factual prerequisites are known to the provider in a way that allows for a decision. All the specific features of the individual case must be taken into account (cf. Federal Administrative Court (BVerwG), decision of 21.04.1997 – 5 PKH 2/97, Buchholz 436.0 § 5 BSHG No. 15).
Based on these criteria, the Senate is convinced that, for the purposes of establishing knowledge, it is not essential that the social welfare agency be convinced, based on a plausibility check, that the substantive requirements for entitlement are met. For the application of Section 18 Paragraph 1 of the German Social Code, Book XII (SGB XII), it is not necessary that the prerequisites for need be known with certainty and in their entirety. The decisive factor is from what point in time the social welfare agency first became aware of the concrete possibility of a need for social assistance or of sufficient indications for granting assistance. The social welfare agency's knowledge must relate both to the existence of a specific need and to the fact that the person in need cannot help themselves or does not receive assistance from a third party. In this respect, the knowledge must be substantively qualified. The manner in which this knowledge must be conveyed to the social welfare agency is not prescribed. This can also happen, for example, through a telephone call from a third party if the call contains the main facts justifying a claim for assistance (see Administrative Court Augsburg, judgment of 16.09.2003 – Au 3 K 03.889 -, NJW 2004, 1266).
The operator of a residential care facility can only claim payment of a care home fee from the social welfare provider, arising from the assumption of debt within the framework of the triangular relationship under social welfare law, in the amount of the benefits granted to the social welfare recipient (following BSG, judgment of 28.10.2008 – B 8 SO 22/07 R -, SozR 4 – 1500 § 75 No. 9).
5. Decisions of the social courts on social assistance (SGB XII)
5.1 – Social Court Düsseldorf Judgment of 30 November 2010, – S 42 SO 51/09 –
Child benefit for an adult disabled recipient of benefits under Chapter 4 of the German Social Code, Book XII (SGB XII) is income of the person entitled to child benefit, in this case his mother.
Section 82 Paragraph 1 Sentence 2 of the German Social Code, Book XII (SGB XII) is not applicable in the present case. According to this provision, child benefit for minors is to be attributed to the respective child as income insofar as it is needed to cover the child's necessary living expenses. However, this provision expressly applies only to minors, not to adults (see Grube/Wahrendorf, SGB XII, 3rd edition 2010; Section 82, marginal note 43). Rather, child benefit paid to a parent as the person entitled to it is only to be considered as income of the adult child living outside the household if it is given to them promptly and if, without the forwarding, the conditions for diverting the child benefit by administrative act pursuant to Section 74 of the German Income Tax Act (EStG) in favor of the child would be met (see judgment of the Federal Social Court (BSG) of August 26, 2008 – B 8/9b SO 16/07 R-). According to the Federal Social Court (see judgment of 08.02.2007 – B 9b SO 5/06 R-), a timely transfer in the sense of a forwarding only exists if the child benefit actually flows to the child as a sum of money.
5.2 – Social Court Detmold Judgment of 30 July 2010 , – S 16 (19) SO 116/08 – , pending before the Higher Social Court of North Rhine-Westphalia – L 9 SO 518/10 –
The assets of those in need of assistance include the funeral pre-arrangement contract (BSG, judgment of 18.03.2008 -B 8/9b SO 9/06 R-) including any claims for rescission and the funeral expense insurance policies including their respective surrender value.
These assets, insofar as they exceed the asset allowance pursuant to Section 90 Paragraph 2 Number 8 of the German Social Code, Book XII (SGB XII), are also not covered by the protective provision of Section 90 Paragraph 2 of the SGB XII. However, the granting of social assistance may not be made dependent on the liquidation of the funeral pre-arrangement contract and/or the liquidation of the death benefit insurance policies, as the use of these assets would constitute undue hardship for the recipient of social assistance within the meaning of Section 90 Paragraph 3 Sentence 1 of the SGB XII.
Pure funeral expense insurance policies can enjoy protection if contractual arrangements have been made to ensure that any other use of the assets is excluded or at least significantly impeded (LSG NRW, Judgment of 19.03.2009 – L 9 SO 5/07 referring to LSG NRW, Judgment of 19.11.2007 – L 20 SO 40/06).
6. Decisions on the Asylum Seekers' Benefits Act
6.1 – North Rhine-Westphalia State Social Court, decision of 22 November 2010, – L 20 AY 1/09 –
++ Note: See also LSG NRW: Benefits for asylum seekers are unconstitutional - North Rhine-Westphalia State Social Court, decision of 26.07.2010, – L 20 AY 13/09 – (Case law ticker from Tacheles KW 33 / 2010 ).
Here is a brief commentary by Christian Armborst and Uwe Berlit (info also 4/2010 from p. 181, published in the case law ticker of Tacheles 38/2010 ):
Serious doubts about the constitutionality of the benefit levels under Sections 3 et seq. of the Asylum Seekers' Benefits Act (AsylbLG) have been raised not only since the Federal Constitutional Court's ruling on standard benefits under the German Social Code, Book II (SGB II). Even when the law was enacted, the legitimacy and permissibility of reducing benefits were controversial. The reduction to the bare minimum for subsistence (80% of the standard rate), justified by the argument that there is no need to consider the need for participation in society, not only leaves open the question of whether additional needs arise from the particular hardship faced by asylum seekers. In particular, a justification for reducing benefits for children cannot be recognized. This is especially true given the typically longer stays of asylum seekers in Germany. Furthermore, concerns had intensified regarding the extent to which unequal treatment of asylum seekers and other tolerated foreigners compared to foreigners entitled to social assistance or basic income support could be justified under constitutional law (see in detail S. Horrer, Das Asylbewerberleistungsgesetz, die Verfassung und das Existenzminimum [The Asylum Seekers' Benefits Act, the Constitution and the Minimum Income], Berlin 2001) and in light of the asylum (procedure) regime established under EU law. However, these doubts had not prevailed in case law; the Federal Administrative Court had justified the differentiation made in Section 2 of the Asylum Seekers' Benefits Act (and thus also the reduction in benefits) with the existing obligation to leave the country. This corresponds to a weaker normative bond to the federal territory, which also affects the legislature's obligation, arising from the social welfare principle, to support foreigners living within its territory (Federal Administrative Court, Judgment of June 3, 2003 – BVerwG 5 C 32.02 – FEVS 55, 114; see also Decision of September 29, 1998 – BVerwG 5 B 82.97 – NVwZ 1999, 669). However, this reasoning becomes less tenable the longer the period for which reduced benefits are claimed is calculated. This line of reasoning fails completely in the case of individuals who, according to the strict criteria of the Federal Social Court's jurisprudence (most recently BSG, judgment of February 2, 2010 – B 8 AY 1/08 R –), have influenced their length of stay through "abusive conduct" and are therefore permanently dependent on basic social assistance, but who are often expected to remain permanently in Germany. In such cases, only a change in residency status, transforming the de facto permanent residence into a legally secured permanent residence for humanitarian reasons, will suffice. Against this backdrop, there would also have been cause to review the duration of the – retroactively extended – period of prior benefit entitlement.
With the ruling on standard benefits of February 9, 2010, doubts about the constitutionality of the level of basic benefits have solidified into certainty of their unconstitutionality (see, for example, Hohm, ZfSH/SGB, 2010, 269 ff.; Kingreen, NVwZ 2010, 558; Rothkegel, ZAR 2010 [in preparation]). Since the level of benefits under Section 3 of the Asylum Seekers' Benefits Act (AsylbLG) was derived from the Federal Social Assistance Act (BSHG) at that time and has not been adjusted to this day, everything suggests that all the reasons that led to the Federal Constitutional Court's decision should justify the incompatibility of this regulation with the Basic Law to an even greater degree. The core of human dignity inherent in the fundamental right to a dignified existence also protects and benefits asylum seekers. The substantive and procedural statements of the ruling must therefore, from a dogmatic perspective, also be applied to the benefit system of the Asylum Seekers' Benefits Act. The amount, which has remained unchanged for almost two decades, is a fiscally and immigration-policy motivated determination; it is no longer even an impermissible "wild guess" (see Kingreen, NVwZ 2010, 558 [562]). Therefore, at least because of the determination procedure, the benefits are unconstitutional. The only point of discussion is whether, upon limited review, the level of the basic benefit is also demonstrably unreasonably low (as argued, for example, by Kingreen, NVwZ 2010, 558 <559>) or whether, in this case – with a constitutionally compliant interpretation – recourse to the benefits under Section 6 of the Asylum Seekers' Benefits Act (AsylbLG) precludes the evident unconstitutionality (see Higher Administrative Court of Bremen, judgment of September 25, 2009 – S 3 A 272/07 – InfAuslR 2010, 170, which, however, prematurely adapts the requirements for presentation in social court proceedings, in which the principle of official investigation applies [Section 103 of the Social Courts Act (SGG)], to the requirements for presentation in a constitutional complaint).
The Higher Social Court of Essen (LSG Essen) has, as far as can be ascertained, become the first state social court to do so (decision of July 26, 2010 – L 20 AY 13/09) to suspend proceedings pursuant to Article 100 Paragraph 1 Sentence 1 of the Basic Law and referred the question to the Federal Constitutional Court for a decision as to whether Section 3 Paragraph 2 Sentence 2 No. 1 and Section 3 Paragraph 2 Sentence 3 in conjunction with Paragraph 1 Sentence 4 No. 2 of the Asylum Seekers' Benefits Act (AsylbLG) are compatible with the Basic Law. The LSG considers the central provision regarding the amount of benefits under the Asylum Seekers' Benefits Act to be incompatible with the fundamental right to a guaranteed minimum standard of living that ensures human dignity. It even considers the benefits to be manifestly inadequate because, although the legislature is authorized to develop a separate concept for securing the livelihood of asylum seekers, no grounds are apparent for falling below the minimum standard of living under the German Social Code, Book II (SGB II) or Book XII (SGB XII) by almost a third. An obviously insufficient level of basic benefits cannot be compensated for by "extensive use" of the hardship clause (§ 6 AsylbLG).
In parallel, the question of the constitutionality of the exclusion of benefits in Section 23 Paragraph 2 of the German Social Code, Book XII (SGB XII) is likely to arise. At least if the benefit amount is ultimately deemed to be clearly too low, an immediate reversal of the exclusion may be considered.
Sat:
Sections 1 et seq. Asylum Seekers' Benefits Act; Article 1 Paragraph 1 in conjunction with Article 20 Paragraph 1 of the Basic Law; Section 73a
of the Social Courts Act: Constitutionality of the Asylum Seekers' Benefits Act
State Social Court of Baden-Württemberg
Decision of 30 April 2010 – L 7 AY 3482/09 B
Guiding principle:
It is unclear whether the level of basic benefits under the Asylum Seekers' Benefits Act meets the constitutional requirements that, according to the ruling of the Federal Constitutional Court of 9 February 2010 (1 BvL 1/09 et al.), must be met when calculating subsistence-level benefits.
7. Decisions on employment promotion under the (SGB III)
7.1 – Rhineland-Palatinate State Social Court, Judgment of 30 September 2010, – L 1 AL 122/09 – , Appeal on points of law is granted
The presumption of receipt under Section 37 Paragraph 2 of the German Social Code, Book X (SGB X) requires that the date the letter was mailed can be proven. If this date cannot be established, the objection period does not begin.
Instructions on legal remedies must not be hidden in an obscure part of the decision, but they do not need to have a separate heading.
The fiction of Section 37 Paragraph 2 Sentence 1 SGB X does not apply because the day on which the notice of objection was sent by post is not sufficiently documented and therefore cannot be determined.
However, the prerequisite for the deemed notification under Section 37 Paragraph 2 Sentence 1 of the German Social Code, Book X (SGB X) is the determination of the time at which the relevant administrative act was sent by mail (see Engelmann, in: von Wulffen, SGB X [6th ed., 2008], Section 41, marginal note 12; Recht, in: Hauck/Noftz, SGB X [as of Supplement 1/10, February 2010], Section 41, marginal note 16).
7.2 – Rhineland-Palatinate State Social Court, Judgment of October 29, 2010, – L 1 AL 49/09 –
It is generally not considered gross negligence (§ 48 para. 1 sentence 2 no. 2 SGB X) if the person obligated under § 60 para. 1 sentence 1 no. 2 SGB I to report changes in circumstances – in this case, a change of address – sends a corresponding notification letter to the Federal Employment Agency by regular mail. An obligation to inquire about receipt of the notification may exist in specific circumstances of an individual case.
8. Questions and answers about the German Social Code, Book II (SGB II)
Can a recipient of SGB II benefits claim the actual amount of additional meal expenses incurred when working away from home?
Recipients of benefits under Book II of the German Social Code (SGB II) can claim additional meal expenses incurred while working away from home – not in the actual amount. If the recipient has incurred additional meal expenses due to their work away from home, they can claim these – provided they are proven – as necessary expenses within the framework of the lump sum allowance pursuant to Section 13 Paragraph 1 No. 3 SGB II in conjunction with Section 6 Paragraph 3 of the ALG II Ordinance (Ordinance on Unemployment Benefit II) as required expenses within the meaning of Section 11 Paragraph 2 No. 5 SGB II in conjunction with Section 11 Paragraph 2 Sentence 3 SGB II. Any additional meal expenses are not recognized (see Higher Social Court of Munich, judgment of September 7, 2009, file no. L 11 AS 466/09 NZB).
This value takes into account, firstly, that it is reasonable to expect the recipient of assistance to reduce their additional meal expenses as much as possible, and secondly, the fact that the recipient also has the amounts included in their standard benefit available on that day (see the explanatory memorandum to the draft regulation of the Federal Ministry of Labor and Social Affairs dated November 27, 2007, p. 18). Section 6, paragraph 3 of the ALG II Ordinance grants employable recipients of assistance a flat-rate allowance of EUR 6 for additional meal expenses for each calendar day on which they are temporarily working away from their residence and the center of their permanent employment for at least 12 hours.
The courts do not consider this to be constitutionally problematic (see, e.g., Social Court Dresden, judgment of 01.09.2010, file no. S 36 AS 5042/08; similarly, Higher Social Court Munich, judgment of 07.09.2009, file no. L 11 AS 466/09 NZB).
