1.1 – Hessian State Social Court decision of 27.12.2010, – L 9 AS 612/10 B ER –
The denial of benefits pursuant to Section 66 of the German Social Code, Book I (SGB I) as a consequence of lack of cooperation is not covered by the wording of Section 39 of the German Social Code, Book II (SGB II) in the version applicable from January 1, 2009; the case variants provided for the legal consequence of the exclusion of the suspensive effect are enumerated and exhaustive – not merely exemplary (cf. Higher Social Court of Baden-Württemberg, decision of April 8, 2010, L 7 AS 304/10 ER-B –; contra: Higher Social Court of Lower Saxony-Bremen, decision of March 8, 2010, L 13 AS 34/10 B ER –).
1.2 – Berlin-Brandenburg State Social Court, decision of 29 December 2010, – L 25 AS 569/09 B PKH –
Granting of legal aid to determine whether the father's payments of three times 200 euros were earmarked income within the meaning of Section 11 Paragraph 3 No. 1 a SGB II or whether they served to cover the ongoing costs of living.
The intended purpose will regularly arise from a public law norm, however, earmarked income on a private law basis – as in this case – can also fall under this category (cf. BSG, judgment of June 1, 2010, – B 4 AS 89/09 R-).
1.3 – Berlin-Brandenburg State Social Court, decision of 06.12.2010, – L 18 AS 1272/10 –
An action for failure to act is not an action within the meaning of Section 144 Paragraph 1 Sentence 1 No. 1 of the Social Court Act (SGG) seeking monetary or in-kind benefits, but rather an action seeking the issuance of an administrative act that has been requested but not yet issued (Section 88 Paragraph 1 SGG) or a decision on an objection (Section 88 Paragraph 2 SGG). A direct action for performance is excluded and was expressly not brought by the applicant in this case (see, in this regard, Higher Social Court of Berlin-Brandenburg, Decision of November 8, 2007 – L 15 B 174/07 SO –; contra Higher Social Court of Baden-Württemberg, Judgment of April 29, 2010 – L 12 AL 5449/09).
1.4 – Berlin-Brandenburg State Social Court, Judgment of 11 November 2010, – L 26 AS 1060/09 –
1.5 – Berlin-Brandenburg State Social Court, Judgment of 16 November 2010, – L 18 AS 1432/08 –
The granting of additional or special needs allowances under the German Social Code, Book II (SGB II), is only possible in cases expressly stipulated by law, which do not include the claims asserted here for reimbursement of medical treatment costs (see Federal Social Court (BSG), judgment of August 19, 2010 – B 14 AS 13/10 R -).
1.6 – Rhineland-Palatinate State Social Court, decision of 26 January 2011, – L 6 AS 616/10 B ER –
One-month period for enforcing preliminary injunctions also applies to benefits under Book II of the German Social Code (SGB II).
1.7 – State Social Court of Saxony-Anhalt, Judgment of 25 November 2010, – L 5 AS 39/08 –
Pensions from statutory accident insurance are considered income.
The Federal Social Court (BSG) has repeatedly ruled that the disability pension from the statutory accident insurance does not constitute privileged income within the meaning of Section 11 of the German Social Code, Book II (SGB II) under any legal aspect (judgments of March 29, 2007, B 7b AS 2/06 R, of September 5, 2007, B 11b AS 15/06 R, of December 6, 2007, B 14/7b AS 62/06 R and 20/07 R).
1.8 – State Social Court of Saxony-Anhalt, decision of December 8, 2010, – L 5 AS 371/09 B –
Educational assistance benefits amounting to 20 percent of the total amount considered sufficient to cover needs under the Federal Training Assistance Act (BAföG) are earmarked income (see Federal Social Court judgment of March 17, 2009, – B 14 AS 63/07 R -).
However, training costs that exceed the designated portion of the training allowance due to the specific characteristics of the respective training are not deductible from income as necessary expenses related to generating income within the meaning of Section 11 Paragraph 2 Sentence 1 No. 5 of the German Social Code, Book II (SGB II)
2. Decisions of the social courts on basic income support for job seekers (SGB II)
2.1 – Social Court Detmold Judgment of 18 January 2011, – S 18 AS 201/09 –, appeal pending under file number: L 12 AS 193/11 –
If the family benefits office subsequently revokes the child benefit award and demands repayment, this does not change the fact that the child benefit was originally available income. As such, it must be counted towards unemployment benefit II (Hartz IV). Income within the meaning of the German Social Code, Book II (SGB II), is anything of value that someone receives after applying for benefits. The origin and legal basis of the income are irrelevant. What matters is the actual receipt and whether the funds can be used to cover living expenses. Counting it as income is only not possible if the receipt is linked to a repayment obligation from the outset—as is the case with a loan. In this instance, the child benefit was initially paid without a repayment obligation. The subsequent repayment obligation only arose as a result of the family benefits office's repayment notice and can no longer affect the original actual receipt in the month in which the need arose.
++ Note: Schleswig-Holstein Higher Social Court, L 3 AS 64/10 B PKH, decision of 25 May 2010, published in the Tacheles case law ticker 23/2010
A person in need of assistance has no legal entitlement to a correction of their original approval notices under Section 44 of the German Social Code, Book X (SGB X), if the child benefit has actually been received, but a repayment obligation for the child benefit is imposed at a later date through a tax court proceeding.
++ Note: Social Court Detmold, judgment of March 31, 2009, S 8 AS 61/08, appeal pending before the Higher Social Court of North Rhine-Westphalia – L 19 B 120/09 B -.
A subsequent cancellation and repayment of child benefit that was credited against basic income support establishes an entitlement to higher basic income support benefits, because at the time of payment of the child benefit it was already subject to a repayment obligation and was no longer available to the recipient from an economic point of view to cover his living expenses (Case Law Ticker from Tacheles 23/2009).
2.2 – Social Court Detmold Judgment of 11 January 2011, – S 21 AS 926/10 –, legally binding
Hartz IV recipients are entitled to have the costs for the procurement of progressive lenses covered as an unavoidable, ongoing, and not just one-off additional need according to § 21 para. 6 SGB II due to their special life situation.
Because he cannot save or afford the cost of purchasing corrective lenses due to his already excessive and considerable needs (monthly travel expenses to doctors, shopping only possible via taxi).
For the period prior to June 3, 2010, this follows directly from the decision of the Federal Constitutional Court of February 9, 2010 (1 BvL 1/09; 1 BvL 3/09; 1 BvL 4/09). The Social Court explained that the atypical need required by the Federal Constitutional Court was due to the particular circumstances of the benefit recipient suffering from diabetes mellitus. This recipient could no longer secure his constitutionally guaranteed minimum subsistence level through the lump-sum benefits provided under Book II of the German Social Code (SGB II). In particular, he could not cover the costs of acquiring corrective lenses from his standard benefits due to his already substantial health-related needs.
If one considers atypical needs only by item, it might be the case that no additional need, as defined by the Federal Constitutional Court's ruling, would arise if each individual item were only required once during the benefit period. Such a view does not do justice to the Federal Constitutional Court's decision. Instead, the legislature should be prompted to ensure that, in cases of particular hardship, the subsistence level of individuals who regularly require more benefits than the statistical average would suggest is adequately covered by the lowest level of the social safety net.
3. Decisions of the State Social Courts on Social Assistance (SGB XII)
Section 24 Paragraph 1 Sentence 1 of the German Social Code, Book XII (SGB XII) stipulates in principle that Germans who have their habitual residence abroad are not entitled to social assistance benefits; rather, those seeking assistance are regularly required to return to Germany (see Higher Social Court of Baden-Württemberg, decision of December 21, 2005 – L 7 SO 4166/05 ER-B – FEVS 57, 403 and decision of June 17, 2008, L 7 SO 2489/07 ER; Bundestag printed matter 15/1761, p. 6 on Section 24 Paragraph 1).
As the wording of Section 24 Paragraph 1 Sentence 2 of the German Social Code, Book XII (SGB XII) and the conclusive nature of the regulation already show, foreign social assistance does not apply in the case of a merely general emergency situation under social assistance law; rather, it requires an exceptional emergency situation that clearly distinguishes itself from this. Such an emergency situation exists when, without assistance, the German citizen living abroad faces a significant impairment of essential legal rights, meaning that life, health, or other fundamental prerequisites of human existence (cf. Art. 1 para. 1 and Art. 2 paras. 1 and 2 of the Basic Law (GG)) are directly endangered (cf. LSG Baden-Württemberg; LSG North Rhine-Westphalia, decisions of 06.02.2006 – L 20 B 50/05 SO ER – and of 02.03.2007 – L 20 B 119/06 SO ER –; ; Bayer. LSG, decision of 08.09.2009 – L 18 SO 119/09 B ER –; Hohm in Schellhorn/Schellhorn/Hohm, SGB XII, 18th ed. 2010, para. 9).
4. Activity report of the Federal Social Court from 2010, listing many judgments.
www.bsg.bund.de (pdf)
5. German Association – Expert opinion of 19 January 2011, No. 11/07
1. The analogous application of Section 65a of the German Social Code, Book I (SGB I) to cooperation actions pursuant to Section 60 of the German Social Code, Book I (SGB I) would require an unintended regulatory gap, which does not exist.
2. Reimbursement of expenses for cooperation activities pursuant to Section 60 of the German Social Code, Book I (SGB I), is not possible under current law – even in cases of high procurement costs. In cases of doubt, such expenses must be granted as a loan.
6. Current Social Law, the Journal for Social Counseling - Nomos - Issue 1
Bruckermann / Izkowskij
A critical analysis of the new recommendations of the German Association for Public and Private Welfare on the granting of dietary allowances for sickness in social assistance dated October 1, 2008.
A critical analysis of the new recommendations of the German Association for Public and Private Welfare on the granting of dietary allowances in social assistance dated October 1, 2008.
I. Introduction
In social assistance law, the determination of the standard for granting additional needs due to more expensive nutrition for sick people, convalescents, disabled people or people threatened by illness or disability (§ 21 V SGB II or § 30 V SGB XII) remains controversial.
IV. Summary
The new recommendations of the German Association on the granting of dietary allowances in social assistance dated 01.10.08 do not constitute a suitable basis for decision-making in cases of single recipients of assistance within the meaning of Section 21 V SGB II or Section 30 V SGB XII.
The final result presented in Table 4 of the DGE 2008 can still generally serve as a guideline. However, any subsequent changes to the standard rate and the price level must be taken into account.
www.kanzlei-bruckermann.de
Author of the ticker: Willi 2 from Tacheles
