1.1 – Berlin-Brandenburg State Social Court, decision of 25 January 2011, – L 14 AS 2337/10 B ER
A corresponding commitment to cover housing procurement and relocation costs requires that the specific circumstances of the desired new apartment are known, as this is the only way the job center can assess the suitability of the new apartment in addition to the necessity of moving out.
The suitability of the new apartment must always be taken into account, as moving into an unsuitable apartment would generally necessitate another move due to the required cost reduction. A claim for an order to relocate would therefore only be considered if the social security provider has a specific housing offer detailing the location of the apartment and the associated costs (see Baden-Württemberg Higher Social Court, decision of July 30, 2008 – L 7 AS 2809/08 ER-B – referring to Lower Saxony-Bremen Higher Social Court, decision of September 7, 2007 – L 9 AS 489/07 ER). The applicant has not presented any current – specific – housing offer.
++ Note: See also the decision of the Berlin-Brandenburg State Social Court of 24 March 2010, – L 10 AS 216/10 B ER-, published in the case law ticker of Tacheles 19/2010.
No isolated determination of the necessity of moving out within the framework of a (provisional) assurance procedure pursuant to Section 22 Paragraph 2 Sentence 2 SGB II.
1.2 – Berlin-Brandenburg State Social Court, decision of 03.02.2011, – L 34 AS 1509/10 B PKH –
Granting of legal aid regarding the question of whether the recommendations of the German Association for the granting of dietary allowances in social assistance, 3rd, completely revised edition 2008 of October 1, 2008 (hereinafter: recommendations), constitute an anticipated expert opinion.
The case law of the Federal Social Court (judgments of February 27, 2008, file nos. B 14/7b AS 32/06 R and B 14/7b AS 64/06 R and of April 15, 2008, file no. B 14/11b AS 3/07 R-) does not clearly indicate whether only the older versions of the recommendations are not (or no longer) considered anticipated expert opinions or whether this is also the case with regard to the newer recommendations (from 2008).
1.3 – State Social Court of Saxony-Anhalt, decision of 19 January 2011, – L 5 AS 452/10 B ER –
In individual cases, the Hartz IV authority may demand the submission of redacted bank statements retroactively for up to 3 years.
The fact that the respondent is requesting bank statements for a period of almost three years is not objectionable. The Federal Social Court (BSG) has deemed the submission of bank statements for the last three months permissible – without any suspicion of wrongdoing (BSG, Judgment of September 19, 2008, B 14 AS 45/07 R (17)). The fact that bank statements are being requested for a much longer period is justified by the circumstances of this case.
The applicant is requesting state welfare benefits, which are granted to him without any obligation on his part and solely on the basis of his need for assistance. The state is entitled to protect itself from the possibility that basic income support benefits are also granted to those who are not in need but possess undisclosed or unreported assets. The request to submit bank statements from the date of the foster mother's death onwards represents a comparatively minor intrusion in relation to this protective purpose (cf. Federal Social Court, judgment of September 19, 2008, loc. cit. (26)).
1.4 – North Rhine-Westphalia State Social Court, decision of 17 January 2011, – L 6 AS 1914/10 B ER-
Recipients of basic income support (Hartz IV) cannot enforce a claim for a guarantee of cost coverage for a new apartment before a move by means of an emergency ruling against the responsible authority.
The applicants are able to rent the new apartment initially even without prior assurance from the benefits provider that the housing costs will be covered. Refusal of such assurance does not constitute a legal violation that cannot be remedied later. In the main proceedings, the responsible authority can be ordered to retroactively cover the costs of the new apartment, even without prior assurance, provided these costs are reasonable.
For your information: According to Section 22 Paragraph 2 of the German Social Code, Book II (SGB II), employable individuals receiving social assistance should obtain a commitment from the responsible authority regarding the costs of new accommodation before concluding a lease agreement. The local authority is only obligated to provide this commitment if the move is necessary and the costs of the new accommodation are reasonable. The commitment – or its refusal – serves an informational and cautionary purpose.
++ Note: See also the decision of the North Rhine-Westphalia State Social Court of 03.09.2010, - L 19 AS 1085/10 B ER -, published in the case law ticker of Tacheles 37/2010.
The fact that a move has taken place in the meantime eliminates the grounds for an order in the EA procedure.
The fact that the move was financed by a loan from family members does not establish any particular urgency. The applicant can reasonably be expected to clarify, in the main proceedings, whether her move, in light of the landlord's termination of the lease for personal use, constitutes a necessary move within the meaning of Section 22 Paragraph 3 Sentence 2 of the German Social Code, Book II (SGB II), which obligates the respondent to bear the reasonable moving costs (Federal Social Court judgment of May 6, 2010 – B 14 AS 7/09 R – paragraphs 15 et seq.), or a move within the meaning of Section 22 Paragraph 3 Sentence 1 of the SGB II (Federal Social Court judgment of May 6, 2010 – B 14 AS 7/09 R – paragraphs 18 et seq.), in which case the respondent has discretion regarding both whether and how much the moving costs will be covered.
The granting of an assurance pursuant to Section 22 Paragraph 2 of the German Social Code, Book II (SGB II) is not a prerequisite for the reimbursement of relocation costs pursuant to Section 22 Paragraph 3 of the German Social Code, Book II (SGB II).
The assumption of relocation costs pursuant to Section 22 Paragraph 3 of the German Social Code, Book II (SGB II) by the Jobcenter only requires that the Jobcenter gives the applicant an assurance regarding these costs before the contractual establishment of the housing procurement and relocation costs to be assumed (cf. in this regard LSG NRW, decision of 03.07.2009 – L 19 B 138/09 AS ER with further references).
The assurance under Section 22 Paragraph 2 of the German Social Code, Book II (SGB II) is not identical in content to that under Section 22 Paragraph 3 of the SGB II. Furthermore, the granting of an assurance under Section 22 Paragraph 2 of the SGB II does not necessarily imply that the benefit provider must also issue an assurance regarding the assumption of relocation costs under Section 22 Paragraph 3 of the SGB II (cf. regarding the requirements for an assurance under Section 22 Paragraph 3 of the SGB II: Federal Social Court (BSG) judgment of May 6, 2010 – B 14 AS 7/09 R).
2. Decisions of the social courts on basic income support for job seekers (SGB II)
2.1 – Social Court Neuruppin Judgment of 02.11.2010, – S 17 AS 1204/09 -, Appeal allowed
Payments from health insurance companies – reimbursements – are not to be counted as income.
Payments from health insurance funds – provided they are classified as income and not as assets – constitute a designated receipt. (§ 11 para. 3 no. 1 a SGB II; cf. BSG judgment of June 1, 2010 – B 4 AS 89/09 R -).
The purpose of the reimbursement by the health insurance fund is determined in accordance with Section 29 Paragraphs 2 and 3 of the German Social Code, Book V (SGB V).
The payment is ultimately only due to the legally prescribed payment method. The claim against the health insurance fund arises not only from the completion of treatment but also from the insured's payment of their co-payment (§ 29 para. 3 sentence 2 SGB V). The insured cannot claim payment, nor can they receive their co-payment without having previously paid the treating orthodontist. Furthermore, the claim against the health insurance fund arises solely from the advance payment of the co-payment and only to that extent. Therefore, there is no risk of double payment for the same purpose (cf. Federal Social Court, loc. cit.). Nor is there any risk of an undue improvement in the recipient's financial situation, as the payment of the co-payment is a pass-through item for the insured.
2.2 – Darmstadt Social Court Judgment of 07.02.2011, – S 20 AS 258/08 –
According to Section 33 Paragraph 2 of the German Social Code, Book II (SGB II), claims against employers are not transferable, as Sections 115 and 116 of the German Social Code, Book X (SGB X) take precedence in this respect.
The right to severance pay agreed upon in a labor court settlement is only transferred to the social security agency (SGB II) pursuant to Section 115 Paragraph 1 of the German Social Code, Book X (SGB X), insofar as the settlement stipulates termination of the employment relationship before the end of the notice period. Only in this case does the severance pay constitute wages; otherwise, it represents compensation for the loss of employment.
3. Press release from the Federal Social Court (BSG) dated February 17, 2011, No. 8/11
Regulations for calculating parental allowance after receiving strike pay, sick pay or unemployment benefits are constitutional
Parental allowance is generally calculated based on the average income from employment earned in the twelve calendar months prior to the child's birth. This income includes the sum of positive earnings from agriculture and forestry, business operations, self-employment, and employment as defined by income tax law. Months in which the eligible person received parental allowance or maternity allowance for an older child, or in which earned income was lost due to an illness related to the pregnancy, are disregarded when determining the relevant twelve calendar months for income calculation.
The 10th Senate of the Federal Social Court ruled on February 17, 2011, that neither strike pay nor sick pay nor unemployment benefits are to be regarded as income from employment within the meaning of the provisions of the Federal Parental Allowance and Parental Leave Act.
Ref.: B 10 EG 17/09 R, B 10 EG 20/09 R and B 10 EG 21/09 R
4. Materials from the Mediation Committee – Information from Harald Thome
Today I would like to draw your attention to the information currently available from the mediation committee. The agreements of February 9th have already been implemented in the form of a draft law. This draft law specifically addresses the inclusion of hot water in housing costs, the extension of midday meals to include daycare and day care, the extension of school and participation allowances to children receiving housing benefits and those eligible for child supplements, and the retroactive application of school and participation allowances to the beginning of 2011. It also repeals the regulation regarding the offsetting of income from expense allowances and trainer's fees. The draft law from February 9th is available here:
The following is a summary from February 10th:
It is worth noting that "white goods" (stove, refrigerator, and washing machine) are to be excluded from the standard benefit, as are mobility costs. All welcome developments; however, from the perspective of those affected, the demand should now be made that household energy costs also be excluded from the standard benefit.
5. Info also 2011 Issue 1
Elimination of parental allowance for recipients of basic income support – a disaster in terms of equality law
Essay by Prof. Dr. Anne Lenze, Youth Welfare Law, Darmstadt University of Applied Sciences
