Federal Social Court (BSG) judgment of 18 January 2011, – B 4 AS 90/10 R-
Hospital daily allowance is also considered income even if the person in need of assistance has financed the insurance from their regular benefits.
Firstly, the insurance allowance was deducted from the income in the form of the hospital daily allowance before it was considered in the calculation of benefits to secure subsistence. Expenses for insurance that the benefit provider paid from the standard benefit were not counted twice against them. Insofar as this is done on a lump-sum basis, it is not objectionable according to the established case law of the Federal Social Court (see, for example, Federal Social Court judgment of November 7, 2006 – B 7b AS 18/06 R, BSGE 97, 254 = SozR 4-4200 § 22 No. 3; decision of April 15, 2008 – B 14/11b AS 41/07 B; judgment of September 30, 2008 – B 4 AS 57/07 R – SozR 4-4200 § 11 No. 16).
The HB are not entitled to a hardship payment according to § 21 para. 6 SGB II.
In the present case, no ongoing, not merely one-off, need can be identified. Even according to HB's presentation, the need for hospitalization amounted to only two instances of a few days each in March and April 2007.
For this reason, a claim under Section 73 of the German Social Code, Book XII (SGB XII) also fails (see regarding its general applicability in the German Social Code, Book II (SGB II): Federal Social Court (BSG) judgment of August 19, 2010 – B 14 AS 47/09 R). Furthermore, the benefit provider has neither specified a concrete nor an abstract need in this respect, but merely offsets it against the hospital daily allowance paid to cover an abstract need in the event of a hospital stay (see in this regard the different case: Federal Social Court (BSG) judgment of February 18, 2010 – BSGE 105, 279, 291 = B 4 AS 29/09 R – SozR 4-1100 Art. 1 No. 7).
A preferential treatment of hospital daily allowance pursuant to Section 11 Paragraph 3 No. 1 Letter a SGB II is not possible.
A service provided on a private-law basis is considered to be earmarked within the meaning of this provision if, beyond the determination of its use for repayment, it is recognizably assigned a specific purpose.
This is to be understood as an agreement from which it is objectively recognizable that the benefit is to be used for a specific purpose (private-law purpose; Federal Social Court judgment of 3 March 2009 – B 4 AS 47/08 R – BSGE 102, 295 = SozR 4-4200 § 11 No. 24; Federal Social Court judgment of 1 June 2010 – B 4 AS 89/09 R – SozR 4-4200 § 11 No. 29). Such a purpose is lacking in the case of hospital daily allowance.
2. Decision of the Federal Social Court of 15 December 2010 on basic income support for job seekers (SGB II)
The subsidy for the costs of accommodation and heating of a trainee excluded from benefits under SGB 2, who receives vocational training assistance from the BA, is calculated according to the uncovered accommodation requirement within the meaning of SGB 2, taking into account income received including vocational training assistance, and is limited by the difference between the accommodation requirement according to SGB 2 and the accommodation component included in the training assistance benefit.
3. Decisions of the Federal Social Court of 19 October 2010 on basic income support for job seekers (SGB II)
3.1 – Federal Social Court (BSG) judgment of 19 October 2010, – B 14 AS 2/10 R –
The AV-Wohnen Berlin regulations are merely administrative rules that have no direct legal effect on those affected.
For a one-person household in Berlin, up to 50 square meters is considered appropriate. The entire city area of Berlin should be used as a comparison area.
Housing costs are reimbursed in the amount of the actual expenses, provided they are reasonable (see Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II). This includes all payment obligations arising from the tenancy agreement for the accommodation (see, most recently, Federal Social Court, SozR 4-4200 § 22 No. 20, marginal note 20, regarding the usage fee for kitchen furnishings, with further references). In addition to the net rent owed and the advance payment for utilities, this also includes the costs for the cable connection (see, for example, Federal Social Court, BSGE 102, 274 = SozR 4-4200 § 22 No. 18) and the modernization surcharge. If the landlord passes on the costs of a modernization measure to the tenant pursuant to Section 559 of the German Civil Code (BGB), these costs, even if they continue to be itemized separately, are part of the contractually owed (net) rent.
Further differentiations according to the number of rooms (insofar as they could even be understood in a rule-exception relationship) are irrelevant for the interpretation of Section 22 Paragraph 1 SGB II.
The senates responsible for basic income support have already ruled similarly for other federal states, where the number of rooms is also decisive in addition to the size of the apartment (see for Bavaria BSGE 97, 231 = SozR 4-4200 § 22 No. 2, each at para. 24; BSGE 102, 263 = SozR 4-4200 § 22 No. 19, each at para. 15 ff; BSG judgment of 20 August 2009 – B 14 AS 41/08 R, juris para. 15; for Rhineland-Palatinate BSG SozR 4-4200 § 22 No. 26 para. 14 and BSG SozR 4-4200 § 22 No. 34; for North Rhine-Westphalia BSG SozR 4-4200 § 22 No. 27 para. 16).
For the question of the appropriateness of the costs, the number of members of the household is decisive, even during a stay abroad, due to the size of the apartment.
Insofar as state law provisions refer to the number of persons in a household, the starting point for calculating living space is the number of members of the benefit unit (see, for example, BSG SozR 4-4200 § 22 No. 12, para. 21). This also applies, in principle, if partners in the benefit unit within the meaning of Section 7 Paragraph 3 No. 3 Letter a or b of the German Social Code, Book II (SGB II), live permanently in separate apartments without any intention to separate, and therefore no shared household exists. Overall, housing costs can only be claimed up to the amount that partners living in a shared apartment would be entitled to (BSG Judgment of February 18, 2010 – BSGE 105, 291 = SozR 4-4200 § 7 No. 16, para. 17 in each case). However, special considerations regarding the determination of the relevant apartment size are conceivable in cases where a household community continues to exist under Section 7 Paragraph 3 Number 3 Letter a or b of the German Social Code, Book II (SGB II), despite the dissolution of the shared household due to a lack of intent to separate as defined in Section 1567 Paragraph 1 of the German Civil Code (BGB) or Section 15 Paragraph 5 of the German Registered Partnership Act (LPartG), but one partner in the household community does not use the apartment due to a permanent stay away from home and is therefore ineligible for benefits under the SGB II. Specifically, the dissolution of the shared household due to a partner's extended stay outside the area specified in Section 7 Paragraph 4a of the SGB II (such as a long-term stay abroad) or a stay in an inpatient facility resulting in exclusion from benefits under Section 7 Paragraph 4 of the SGB II (such as serving a prison sentence) may make it reasonable for the remaining partner to reduce the overall costs incurred and adapt their living arrangements to their permanent sole occupancy of the apartment. The right to obtain a larger apartment suitable for two people with the help of benefits under the German Social Code, Book II (SGB II), is not worthy of protection indefinitely.
The implementing regulations (AV-Wohnen) used by the basic income support provider to determine an appropriate price per square meter within the local comparative standard (of the entire city of Berlin) are not suitable for determining the appropriate costs of accommodation, because they are not based on a coherent concept that offers sufficient assurance that it reflects the current conditions of the local housing market.
According to the product theory, the appropriate price per square meter must include not only the net rent but also, as stated in Section 22 Paragraph 1 of the German Social Code, Book II (SGB II), the so-called "cold operating costs" (or "cold operating costs"). These costs, unlike heating costs, are not subject to separate assessment of their appropriateness. For the assessment of appropriateness, it seems reasonable to refer to local overviews and, consequently, to the resulting average values for all cost categories covered by the German Operating Costs Ordinance. Cold operating costs are primarily determined by regional characteristics. In contrast, it does not appear necessary to further differentiate cold operating costs based on the location of the property, as the amount of these costs is largely independent of the location. Only if no regional overviews are available can the German Tenants' Association's operating cost index be consulted
Employable severely disabled recipients of basic income support under the German Social Code, Book II (SGB II), who have the disability marker "G", are not entitled to the additional needs allowance for disability under Section 21 Paragraph 4 of the SGB II if they only receive integration assistance for outpatient assisted living.
The approved assistance for independent living in supported housing, as a benefit for participation in society, is legally based on Section 55 Paragraph 2 Number 6 of the German Social Code, Book IX (SGB IX) in conjunction with Section 54 Paragraph 1 Sentence 1 of the German Social Code, Book XII (SGB XII). It is therefore not among the benefits expressly mentioned in Section 21 Paragraph 4 Sentence 1 of the German Social Code, Book II (SGB II), namely Section 33 of the SGB IX and Section 54 Paragraph 1 Sentence 1 Numbers 1 to 3 of the SGB XII. Nor is it any other form of assistance for obtaining suitable employment. Assistance under Section 54 Paragraph 1 Sentence 1 of the SGB XII in conjunction with Section 55 Paragraph 2 Number 6 of the SGB IX concerns housing-related support for the disabled person, which – as in this case – can also be provided on an outpatient basis. The benefits, which according to § 55 para. 1 SGB IX are subordinate to, among other things, the benefits for participation in working life under §§ 33 to 43 SGB IX (Chapter 5), are essentially aimed at enabling disabled people to perform all important everyday tasks in their living environment independently, to orient themselves in their living environment, or at least to achieve all of this with sporadic support from third parties (Luthe in jurisPK-SGB IX, as of September 2010, § 55 marginal note 44).
Such assistance, which is not provided as vocational integration measures relating to working life, does not constitute other assistance within the meaning of Section 21 Paragraph 4 Sentence 1 of the German Social Code, Book II (SGB II) (similarly O. Loose in GK-SGB II, as of July 2010, Section 21 Paragraph 27.1; Münder in LPK-SGB II, 3rd edition 2009, Section 21 Paragraph 22).
Furthermore, the additional needs allowance for employable disabled persons in need of assistance due to the granting of benefits for participation in working life requires participation in a regular measure (see BSG judgment of 22.3.2010 – B 4 AS 59/09 R – SozR 4-4200 § 21 No. 9), which is lacking in the present case.
The employable HB cannot derive a claim for additional needs from a corresponding application of Section 28 Paragraph 1 No. 4 SGB II (BSG Judgment of 21.12.2009 – B 14 AS 42/08 R – BSGE 105, 201 = SozR 4-4200 § 8 No. 1, each paragraph 23 ff).
4.1 – North Rhine-Westphalia State Social Court decisions of 03.03.2011, – L 19 AS 70/11 B ER – and – L 19 AS 71/11 B –
According to established case law of the Senate and the North Rhine-Westphalia State Social Court (see North Rhine-Westphalia State Social Court decision of 24 September 2010 – L 19 AS 1405/10 B ER – with further case law references), even if there is a coverage gap between the subsidy granted under Section 26 Paragraph 2 of the German Social Code, Book II (SGB II) and the actual contribution payable to private health insurance, in view of the provisions of Section 193 of the German Insurance Contract Act (VVG) on the termination of the suspension of health insurance coverage due to contribution arrears upon the onset of need for assistance (Paragraph 6 Sentence 5), there is no ground for an order for emergency treatment during the suspension of the benefit entitlement (Paragraph 6 Sentence 6).
The Senate maintains its established case law, even in light of the Federal Social Court's decision of January 18, 2011 – B 4 AS 108/10 R – at least until the grounds for that decision are published. The applicant can reasonably be expected to await the outcome of the main proceedings.
++ Note: Recipients of unemployment benefit II who are privately insured will have their contribution to their private health insurance reimbursed retroactively to 18.1.2011 by the basic income support providers up to half the amount of the basic tariff.
This is evident from an answer by the Federal Government (BT-Drs. 17/4962 – PDF, 52 KB) to a minor interpellation by the Left Party parliamentary group (BT-Drs. 17/4709 – PDF, 56 KB).
4.2 – North Rhine-Westphalia State Social Court, decision of 11 January 2011, – L 6 AS 1602/10 B –
There is no need for judicial intervention if it was reasonable for the applicant to first point out the obvious error to the respondent or the main customs office and await their reaction before seeking legal protection (see also LSG NRW, decision of 15.02.2008, L 19 B 98/07 AS).
In light of the respondent's immediate reaction after receipt of the second application for preliminary relief, contrary to the applicant's assertion, it must be assumed that a phone call could have rectified the error. Had this not been the case, the applicant would have had a legitimate interest in legal protection for the (second) application for preliminary relief underlying this case, following her – ultimately unsuccessful – inquiry. Only when an applicant has exhausted all reasonable means of achieving the desired objective without involving the court – and without success – can the necessity of judicial intervention be affirmed (see Higher Social Court of North Rhine-Westphalia, decision of July 29, 2009, L 19 B 158/09 AS).
4.3 – North Rhine-Westphalia State Social Court, decision of March 4, 2011, – L 7 AS 1781/10 NZB –
In view of the clear wording of Section 21 Paragraph 3 of the German Social Code, Book II (SGB II), an additional allowance is only to be granted to persons who live with a minor child or several minor children.
4.4 – North Rhine-Westphalia State Social Court, decision of March 4, 2011, – L 7 AS 25/11 B ER –
The German Social Code, Book II (SGB II), contains no provision that restricts Section 23 Paragraph 5 of the SGB II to the extent that a loan can only be granted for a narrowly limited period.
According to case law, the granting of benefits in the form of a loan pursuant to Section 23 Paragraph 5 Sentence 1 of the German Social Code, Book II (SGB II) is only excluded if the asset holder has not taken initial steps to realize the value of their assets (Lower Saxony-Bremen State Social Court, decision of August 20, 2009, file no.: L 7 AS 852/09 B ER, para. 6; Saxony-Anhalt State Social Court, decision of May 26, 2009, file no.: L 5 AS 56/09 B ER, para. 34).
4.5 – North Rhine-Westphalia State Social Court, decision of 03.03.2011, – L 7 AS 2237/10 B –
An increased nutritional requirement due to illness is to be denied in the case of diabetes mellitus (cf. LSG NRW decision of 14.01.2010, L 7 B 480/09 AS).
If a person in need of assistance informs the benefit provider under the German Social Code, Book II (SGB II), that the reason for moving in together was the duration and intensity of their acquaintance and not merely the desire for a shared apartment, this suggests a marriage-like living situation.
A household unit, as defined in Section 7 Paragraph 3 Number 3c of the German Social Code, Book II (SGB II), includes a partner of the employable person receiving assistance if they live together in a shared household in such a way that, upon reasonable assessment, a mutual intention to assume responsibility for and support one another can be assumed. Such an intention is presumed, among other things, if partners have lived together for more than one year (Section 7 Paragraph 3a Number 1 SGB II). This refers to cohabiting relationships similar to marriage (see Brühl/Schoch in LPK-SGB II, 3rd edition, Section 7, marginal note 72). Such a relationship is a long-term partnership between a man and a woman, which does not permit any other partnership of the same kind and is characterized by inner bonds that establish mutual support between the partners, thus going beyond the relationships in a purely domestic and economic partnership (Federal Constitutional Court judgment of 17 November 1992 – 1 BvL 8/87 = BVerfGE 87, 234; Federal Constitutional Court decision of 2 September 2004 – 1 BvR 1962/04 = info also 2004, 260).
4.7 – Baden-Württemberg State Social Court, decision of 08.02.2011, – L 13 AS 2819/10 B –
1. Section 172 paragraph 3 no. 2 of the Social Courts Act (SGG) does not, by its very wording, cover appeals against a decision revoking the grant of legal aid pursuant to Section 124 no. 2 of the Code of Civil Procedure (ZPO).
2. A power of attorney granted in the proceedings also extends to the review proceedings pursuant to Section 120 Paragraph 4 Sentence 2 of the German Code of Civil Procedure (ZPO) if it is clear from the power of attorney document that the authorization does not end with the main proceedings and the authorized representative has also conducted the legal aid proceedings.
3. If the power of attorney must also be observed in the review proceedings, the request for a declaration pursuant to Section 120 Paragraph 4 Sentence 2 of the German Code of Civil Procedure (ZPO) and also a decision pursuant to Section 124 No. 2 of the German Code of Civil Procedure (ZPO) must be addressed to the authorized representative.
4.8 – Berlin-Brandenburg State Social Court, decision of 02.03.2011, – L 18 AS 2267/10 B –
There is no room for an analogous application of Section 99 Paragraph 2 of the Administrative Court Procedure Act (VwGO) in social court proceedings if the defendant has restricted access to the files pursuant to Section 120 Paragraph 1 of the Social Court Procedure Act (SGG).
The Social Court Act (SGG) does not grant parties an unrestricted right to inspect files. The law provides for limitations or restrictions in Section 120, paragraphs 1 and 3. Restricting access to files does not conflict with the right to be heard (see Section 62 SGG), but is protected by Section 128, paragraph 2 SGG (see Federal Social Court (BSG), decision of July 5, 1956 – 1 RA 69/56 – juris). The restriction or exclusion of access to files by the authority pursuant to Section 120, paragraph 1 SGG is generally binding on the court (see Federal Social Court (BSG), judgment of November 15, 2007 – B 3 KR 13/07 R – juris). The plaintiff's objection that Article 19 Paragraph 4 of the Basic Law (GG) must provide effective legal protection against the authority's refusal under Section 120 Paragraph 1 of the Social Court Act (SGG) is unconvincing in this context, because violations of the right to be heard under Section 62 SGG and violations of Section 128 Paragraph 2 SGG can be raised as procedural errors within the framework of the appeal against the main decision, even up to the appeal on points of law (see Section 144 Paragraph 2 No. 3 SGG and Section 160 Paragraph 2 No. 3 SGG). Moreover, this represents a significantly more effective legal remedy compared to the legal protection against a decision of the Social Court (SG) under Section 99 Paragraph 2 of the Administrative Court Procedure Act (VwGO); because decisions of the Higher Social Court (LSG) cannot be appealed to the Federal Social Court (see Section 177 SGG).
4.9 – Berlin-Brandenburg State Social Court, Judgment of 2 December 2010, – L 25 AS 759/10 –
The term "distance kilometer" refers, in accordance with Section 9 Paragraph 1 Sentence 3 No. 4, Paragraph 2 of the German Income Tax Act (EStG), to the one-way distance and not to the total number of kilometers traveled for the outward and return journey (see Lower Saxony-Bremen State Social Court, judgment of December 3, 2009 – L 13/6 AS 8/06 – with further references).
4.10 – State Social Court of Saxony-Anhalt, decision of 18 January 2011, – L 5 AS 433/10 B –
In principle, a legally valid lawsuit cannot be filed by sending the file to the social court via email.
According to Section 65a of the Social Court Act (SGG), parties may submit electronic documents to the court, provided this has been authorized for the respective jurisdiction by a statutory instrument of the Federal Government or the state governments. According to the annex to Section 1 of the Ordinance on Electronic Legal Transactions at the Courts and Public Prosecutor's Offices of the State of Saxony-Anhalt (ERVVO LSA), valid from February 20 to September 7, 2009, only the Stendal Local Court, the Higher Administrative Court of the State of Saxony-Anhalt, and the Magdeburg Administrative Court were authorized for electronic legal transactions, but not the Magdeburg Social Court. Therefore, the effective transmission of electronic documents of any kind was not possible.
However, the Social Court printed out the email along with the attached PDF file and filed it under the reference number S 1 AR 15/09. The statement of claim was therefore submitted to the court in a form that satisfied the written form requirement (see Federal Court of Justice, decision of July 15, 2008, X ZB 8/08, para. 12). The printout constitutes the claim in a single document and concludes with the signature of the plaintiff's attorney. Similar to the case of a document transmitted by computer fax, the fact that the signature is only reproduced as a copy is harmless. While the Social Court was not obligated to open and print the email and the attached PDF file, it was nevertheless compelled to do so.
However, if the court accepts the electronically transmitted document, it must also consider it sufficient even with a copied signature. Otherwise, access to the court would be unreasonably impeded in a manner that can no longer be justified by objective reasons (cf. Federal Constitutional Court, decision not to accept the case of April 18, 2007, 1 BvR 110/07, para. 15, regarding computer faxes).
5. Decisions of the social courts on social assistance (SGB XII)
5.1 – Aachen Social Court judgments of 01.03.2011, – S 20 SO 109/10 – and -S 20 SO 110/10 –
The husband of the (potentially) liable party for maintenance, from whom she is not separated, is obligated to provide information pursuant to Section 117 Paragraph 1, just like her. There are no constitutional concerns regarding the obligation to provide information pursuant to Section 117 Paragraph 1 of the German Social Code, Book XII (see Higher Social Court of North Rhine-Westphalia, judgment of June 9, 2008 – L 20 SO 36/07).
According to Section 117 Paragraph 1 Sentence 1 of the German Social Code, Book XII (SGB XII), all potentially liable persons for maintenance, in particular direct relatives (see, for example, Wahrendorf in: Grube/Wahrendorf, SGB XII, 3rd edition 2010, Section 117, marginal note 9) and their spouses who are not living separately, must provide the social welfare agency with information about their income and assets, insofar as this is required for the implementation of the SGB XII. The obligation of these persons to provide information is not dependent on whether a maintenance claim exists in the specific case, just as it is not dependent on the transfer of claims pursuant to Section 93 of the SGB XII. Only after receiving this information can the social welfare agency gain an overview of whether and to what extent it can restore the principle of subsidiarity under social welfare law by pursuing a third party. The purpose of this provision makes it possible to consider all persons who could be considered liable for maintenance within the meaning of social welfare regulations and who are not obviously excluded (so-called negative evidence). The objections raised by the person obligated to provide information against the maintenance obligation concern the case-specific decision regarding the relevant maintenance amount. These objections remain subject to clarification by the civil courts (Wahrendorf, in: Grube/Wahrendorf, SGB XII, 3rd ed. 2010, § 117 para. 12 with further references to the case law of the Federal Administrative Court; Higher Social Court of North Rhine-Westphalia, judgment of 16 April 2008 – L 12 SO 4/07, of 14 September 2009 – L 20 SO 96/08 and of 1 September 2010 – L 12 SO 61/09; decision of 19 April 2010 – L 20 SO 77/10 B ER).
6. Münder: Constitutional review of the draft law on standard needs
Does the government's draft law of October 20, 2010, on determining standard benefit rates and amending Books Two and Twelve of the Social Code comply with the constitutional requirements of the Federal Constitutional Court's decision 1 BvL 1/09 of February 9, 2010? – A legal opinion –
by Prof. Dr. Johannes Münder, TU Berlin, Chair of Social Law and Civil Law
7. Slide presentation on ALG II / Status: March 10, 2011, prepared by Harald Thome
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
