1.1 – Federal Social Court (BSG) judgment of 19 October 2010, – B 14 AS 51/09 R –
Even if a person receiving a disability pension is not entitled to benefits under the German Social Code, Book II (SGB II), they form a mixed household with their 21-year-old son, and the disability pension must be taken into account as income for the son.
The provision of Section 7 Paragraph 3 No. 2 SGB II (in conjunction with Section 9 Paragraph 2 Sentence 2 SGB II) does not violate Article 1 in conjunction with Article 20 Paragraph 1 GG.
When considering whether the use of state funds is justified, the welfare legislator may deviate from the regulations of maintenance law and assume, as a general rule, that family members living together in a household (who are related in a direct line) support each other.
The exclusion of benefits pursuant to Section 7 Paragraph 1 Sentence 2 No. 2 of the German Social Code, Book II (SGB II) is not applicable here, because the plaintiff can invoke the principle of equal treatment under Article 1 of the European Convention on Human Rights (EStG) (see also Higher Social Court of Lower Saxony-Bremen, decision of January 14, 2008 – L 8 SO 88/07 ER – FEVS 59, 369, 373 et seq.; Higher Social Court of Berlin-Brandenburg, decision of January 14, 2010 – L 14 AS 1565/09 B ER – ; Social Court of Berlin, judgment of March 25, 2010 – S 26 AS 8114/08 – ; Brühl/Schoch in LPK-SGB II, 3rd edition 2009, Section 7, marginal note 35).
1. Benefits for accommodation are provided in the amount of the actual expenses, insofar as they are reasonable. The determination of the regional reasonableness limit by the basic income support provider must be based on a verifiable and conclusive concept (see Federal Social Court, judgments of June 18, 2008 – B 14/7b AS 44/06 R – and of September 22, 2009 – B 4 AS 18/09 R –).
A concept that only considers the most expensive and the cheapest of all the apartments used as the basis for data collection when determining the limit of what is reasonable is not conclusive.
If a coherent concept is lacking, the basic income support provider must cover the actual expenses of the person in need of assistance up to the amount of the table values moderately increased by a supplement (10%) according to § 8 WoGG aF (cf. BSG, judgments of July 2, 2009 – B 14 AS 33/08 R – and of September 22, 2009 – B 4 AS 18/09 R -).
2. The limit of obvious uneconomicalness within the meaning of Section 12 Paragraph 3 Sentence 1 No. 6 SGB II is to be considered exceeded if, in the case of the realization of a life insurance policy and an asset formation insurance policy, losses of more than 35% or more than 65% result.
++ Note: See Federal Social Court (BSG) judgment of October 19, 2010, – B 14 AS 15/09 R –
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).
2.2 – LSG Saarbrücken Judgment of 9 February 2010, – L 9 AS 5/09 –
The need for legal protection in a lawsuit ceases to exist if the plaintiff rejects an offer from the defendant that would allow him to completely prevail in the matter.
www.rechtsprechung.saarland.de
2.3 – State Social Court of Saxony-Anhalt, decision of 21 December 2010, – L 2 AS 49/10 B ER –
Legal aid will not be granted if the application for an interim injunction lacked a legitimate interest in legal protection from the outset.
For recipients of Hartz IV benefits, it is reasonable and advisable to inquire by telephone with the benefits authority before submitting an application for preliminary legal protection and to use the credit balance in their current account to bridge the gap.
2.4 – State Social Court of Saxony-Anhalt, decision of 22 December 2010, – L 2 AS 425/10 B ER –
No reimbursement of costs for drying out the building will be provided if the total cost of accommodation, including the cost of drying out the building, is unreasonable.
Maintenance expenses under the German Social Code, Book II (SGB II) only fall under the costs of accommodation and heating if they are reasonable within the meaning of Section 22 Paragraph 1 Sentence 1 of the SGB II (see Federal Social Court judgment of February 18, 2010 – B 4 AS 28/09 R – Rn. 20).
When assessing the appropriateness of maintenance expenses, the specific circumstances of each individual case must be taken into account, such as the imminent end of benefit payments, the extent of need, the degree of impairment of the quality of living, the overall value and condition of the house, the amount of current and future expected renovation costs, and the other costs to be incurred for accommodation and heating or similar expenses (see LSG Sachsen-Anhalt v. 06.07.2010 – L 5 AS 136/10 B ER – Rn. 40).
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – Social Court Düsseldorf Judgment of 04.01.2011, – S 25 AS 221/08 –
Given the legal consequences stipulated in Section 22 Paragraph 1 Sentence 3 of the German Social Code, Book II (SGB II), the assumption of excessive accommodation costs is exceptional in nature, so that strict requirements must be placed on the interpretation of the elements of the offense of impossibility and unreasonableness of cost reduction measures when determining exceptions to the general rule.
The reimbursement of unreasonable accommodation costs remains the exceptional case requiring justification based on objective reasons, and the obligation to reduce costs remains even in cases of impossibility or subjective unreasonableness (cf. BSG, judgment of 19.02.2009, B 4 AS 30/08 R).
4.1 – Aachen Social Court Judgment of 25 January 2011, – S 20 SO 24/10 –
The principle of subsidiarity in Section 2 Paragraph 1 of the German Social Code, Book XII (SGB XII) and the regulation in Section 53 Paragraph 2 Sentence 2 of the SGB XII, which applies specifically to an impending disability, also means that, under the law of social assistance in accordance with the SGB XII, integration assistance is only granted if medical treatment is insufficient to achieve the – identical – goal of integration assistance.
5. Commentary on: Federal Social Court, 14th Senate, Judgment of 18 February 2010 – B 14 AS 74/08 R – by Attorney Jörg Neunaber, Source: jurisPR-SozR 2/2011 Note 1
The home ownership allowance, which is recognized as privileged income, can only be deducted from the costs of accommodation if it actually reduces the monthly debt interest payments of the homeowner.
6. Questions and answers about the German Social Code, Book II (SGB II)
Can childcare costs be deducted as business expenses from the earned income of a recipient of basic income support under the German Social Code, Book II (SGB II)?
Childcare costs can only be deducted as business expenses if childcare is necessary for the employee to be able to work (Federal Social Court, judgment of November 9, 2010 – B 4 AS 7/10 R). This means that if one spouse is unemployed, childcare costs cannot be deducted under Section 11 Paragraph 2 No. 5 of the German Social Code, Book II (SGB II).
