Federal Social Court (BSG) judgment of 18 January 2011, – B 4 AS 108/10 R –
Privately insured recipients of unemployment benefit II are entitled to full reimbursement of contributions
Ultimately, the constitutionally guaranteed minimum subsistence level of privately insured recipients of benefits under Book II of the German Social Code (SGB II) would be affected if the contributions they owe to their private health insurance were not covered by the basic income support provider. The unintended regulatory gap regarding the coverage of private health insurance contributions must therefore be closed with respect to the outstanding contribution amounts by applying the regulations for individuals voluntarily insured under the statutory health insurance system by analogy. This results in an obligation for the basic income support provider under SGB II to cover the contributions in full.
2. Decision of the Federal Social Court of 09.11.2010 on basic income support for job seekers (SGB II)
Federal Social Court (BSG), Judgment of November 9, 2010, – B 4 AS 78/10 R –
Maintenance payments must be taken into account as reducing income if these payments are based on a legally established maintenance claim – in this case, a maintenance certificate signed at the youth welfare office – this is not contradicted by the fact that the employable person in need of assistance cannot already cover their own maintenance from their own income.
A maintenance order is a maintenance title within the meaning of Section 11 Paragraph 2 Sentence 1 No. 7 of the German Social Code, Book II (SGB II). The scope of the legal maintenance obligation is not to be determined independently in each individual case, but rather the maintenance claim stipulated in the order is to be taken into account.
The maintenance obligation is not disregarded due to the general duty of self-reliance under Section 2 of the German Social Code, Book II (SGB II). This follows from the fact that the legal provision expressly permits the arrangement chosen by the recipient.
3.1 – Baden-Württemberg State Social Court, Judgment of 22 December 2010, – L 12 AS 5641/09 –
The investigations by the basic income support provider in the Rhein-Neckar district meet the requirements of the Federal Social Court for a coherent concept and are meaningful with regard to the abstract appropriateness of accommodation costs in the local area.
3.2 – Baden-Württemberg State Social Court, decision of February 8, 2011, – L 12 AS 4387/10 –
Rent is not considered reasonable accommodation costs if the lease is concluded despite an existing right of residence under Section 1093 of the German Civil Code (BGB) in order to obtain further benefits under Book II of the German Social Code (SGB II) while the tenant is in need of assistance. Such a lease is immoral and void under Section 138 of the German Civil Code (BGB).
According to Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), benefits for accommodation and heating costs are provided in the amount of the actual expenses, provided these are reasonable. It is required that the person in need of assistance is subject to a concrete payment obligation (see Federal Social Court (BSG) SozR 4-4200 § 22 No. 21; BSG, Judgment of August 20, 2008 – B 14 AS 34/08 R – FEVS 61, 243). This is not the case here.
Legal transactions that, by their content, purpose, and motive, are primarily designed to regulate financial circumstances to the detriment of social welfare agencies or providers of benefits under Book II of the German Social Code (SGB II), and thus at the expense of the general public, violate public policy within the meaning of Section 138 of the German Civil Code (BGB), unless special grounds for justification exist (see BGHZ 86, 82, 86 et seq.; Sock in Staudinger, BGB, Section 138, marginal note 359 et seq. with further references). In principle, benefits under Book II of the German Social Code (SGB II) are subsidiary in nature and only come into play secondarily if no private sources of support are available (Sections 3 para. 3, 9 para. 1 sentence 1 SGB II).
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3.3 – Saxon State Social Court decision of 04.03.2011, – L 7 AS 753/10 B ER –
There is no general principle in social assistance law or in the law on basic income support under the German Social Code, Book II (SGB II), that every child, regardless of age, must have their own room and that the move is therefore necessary.
The currently occupied apartment falls below the standard for adequate living space. Since it only has three rooms, there is not enough space for each person in the household, as the square footage figures are maximum, not minimum, values, and a slight shortfall does not indicate a housing shortage.
A move is not necessary, as it is generally considered reasonable for two preschool-aged children to share a common children's room.
The specific circumstances of each individual case must always be taken into account.
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3.4 – North Rhine-Westphalia State Social Court, decision of 09.03.2011, – L 19 AS 2058/10 B –
The payment of the pension on the last day of the month does not lead to the income being taken into account only in the following month (cf. BSG judgment of 30.07.2008 – B 14 AS 26/07 R para. 27; BSG decision of 23.11.2006 – B 11b AS 17/06 B), rather the change in circumstances must be taken into account in the entire month in which the income is received.
3.5 – North Rhine-Westphalia State Social Court, decision of 14 March 2011, – L 19 AS 347/11 NZB –
The Federal Constitutional Court (BVerfG) has also addressed this issue (see judgment of February 9, 2010 – 1 BvL 1/09 = NZS 2010, 270). It expressly stated that the legislature "has not provided a sound justification for the deductions in Department 04 (housing, water, electricity, gas and other fuels) for the expenditure item electricity (reduction of 15%) and in Department 07 (transport) for the expenditure item spare parts and accessories for private vehicles (reduction of 80%)" (BVerfG, ibid., p. 279, para. 177). Therefore, the applicant's claim that the flat-rate deduction is unconstitutional has already been established; nevertheless, the Federal Constitutional Court has ordered the continued application of the standard rates of Section 20 Paragraph 2 of the German Social Code, Book II (SGB II) until December 31, 2010 (Federal Constitutional Court, ibid., p. 284, para. 216), so that, even considering the unconstitutionality of the current legal situation, the plaintiff cannot obtain higher benefits for the period in dispute here.
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4. Decisions of the social courts on social assistance (SGB XII)
4.1 – Osnabrück Social Court, Judgment of December 2, 2010, – S 5 SO 177/09 –, Appeal allowed
No income deduction and no deviation from the standard allowance due to free lunch in the hospital
According to Section 28 Paragraph 1 Sentence 2 of the German Social Code, Book XII (SGB XII), needs are determined differently if, in an individual case, a need is fully or partially covered by another service. These conditions are not met here, as such a different determination is only permissible if the need is covered by another benefit under the SGB XII. This is not the case with hospital meals, as these are generally a benefit under the German Social Code, Book V (SGB V).
A reduction in benefits due to payments under Section 28 Paragraph 1 Sentence 2 of the German Social Code, Book XII (SGB XII) is only possible if these payments are provided by a social assistance provider as benefits under the SGB XII. Consideration as income is precluded because, according to Section 82 Paragraph 1 Sentence 1 of the SGB XII, benefits under the SGB XII are expressly excluded from the definition of income. This is the decisive factor for distinguishing between the two provisions. Therefore, the scope of application of Section 28 Paragraph 1 Sentence 2 of the SGB XII is opened to avoid double payments when the provision of subsistence benefits – for example, as part of integration assistance – overlaps with the actual needs covered by the standard rate under Section 28 Paragraph 1 Sentence 1 of the SGB XII. Such an overlap cannot be addressed through income considerations, but only by reducing the need pursuant to Section 28 Paragraph 1 Sentence 2 of the German Social Code, Book XII (SGB XII), provided the conditions of this provision for a reduction of the standard benefit rate are met. In other cases, where – as here – the benefit is not (institutionally) provided as social assistance, its consideration as income within the meaning of Section 82 of the SGB XII must be examined within the framework of the normative delimitation; thus, income does not automatically reduce the need within the meaning of the statutory provision (cf. Federal Social Court, Judgment of March 23, 2010 – B 8 SO 17/09 R). In the present case, the need was not covered by another benefit under the SGB XII, because HB has statutory health insurance, so the costs of the hospital stay were borne by her health insurance fund.
Free meals provided in hospitals cannot be counted as income under Section 82 Paragraph 1 of the German Social Code, Book XII (SGB XII), as this would lead to unequal treatment compared to recipients of benefits under the German Social Code, Book II (SGB II). According to Section 1 Paragraph 1 Number 11 of the Ordinance on the Calculation of Income and the Disregard of Income and Assets for Unemployment Benefit II/Social Assistance (ALG II-VO), meals provided outside the categories of income listed in Sections 2, 3, and 4 Number 4 are not to be considered income. No such provision is found in the Ordinance Implementing Section 82 of the SGB XII. Section 1 paragraph 1 number 11 of the ALG II-VO (Regulation on Unemployment Benefit II) is to be applied accordingly, because recipients of benefits under the SGB XII (Social Code, Book XII) must not be placed in a worse position in this respect (cf. Gutzler, in: jurisPK-SGB XII, § 28, Rn. 58; generally on the necessity of harmonizing SGB II and SGB XII: Stölting/Greiser, SGb 2010, 631 ff.).
Accordingly, in accordance with the general principle of equality (Article 3, Paragraph 1 of the Basic Law), recipients of benefits under the German Social Code, Book II (SGB II) and Book XII (SGB XII) must be treated equally when assessing benefits in kind, unless there is a (justifying) reason for different treatment. In this respect, the assessment of free meals as income under SGB II is not related to the employment-related nature inherent in SGB II (see Federal Social Court, Judgment of March 23, 2010 – B 8 SO 17/09 R). In light of this case law – which the Chamber endorses – Section 1, Paragraph 1, No. 11 of the German Unemployment Benefit II Ordinance (ALG II-VO) must be applied analogously in the present proceedings for constitutional reasons, as it is not apparent how the different treatment of free meals under SGB II and SGB XII could be justified. If, according to Section 1 Paragraph 1 No. 11 of the ALG II-VO (Regulation on Unemployment Benefit II), it is not considered income, then this must also apply to recipients of benefits under the SGB XII (Social Code Book XII).
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Note: As far as can be seen, the question of the analogous application of Section 1 Paragraph 1 No. 11 of the ALG II-VO to benefits under the SGB XII has not yet been decided by the highest court.
++ Note: See also Social Court Detmold judgment of 01.06.2010, – S 2 SO 74/10 -, appeal against the refusal of leave to appeal was filed with the Higher Social Court of North Rhine-Westphalia – L 12 SO 321/10 NZB -, published in the case law ticker of Tacheles 29/2010.
Reducing the standard benefit rate for social assistance recipients due to hospital meals is unlawful if the social assistance provider has not conducted individual investigations into which expenses were actually saved by the hospital stay (cf. Federal Social Court, judgment of 11.12.2007, B 8/9b SO 21/06 R)
This is because there is also no alternative coverage of needs as defined in Section 28 Paragraph 1 Sentence 2 of the German Social Code, Book XII (SGB XII). A need is generally considered covered by other means if the beneficiary receives individual benefits from third parties. On the other hand, considerations of compensation must be taken into account, such that higher costs arise elsewhere due to the particular situation (see Grube-Wahrendorff, Commentary on the SGB XII, Section 28, marginal notes 1 and 2; Schellhorn, Commentary on the SGB XII, Section 28, marginal notes 12 and 13, there with the example of a homeless person who, although they do not consume household energy, incurs higher costs elsewhere, for example, for the purchase of hot meals, precisely because they live on the street). An overall assessment is decisive.
4.2 – Social Court Aachen Judgment of 01.03.2011, – S 20 (19) SO 139/09 –
The question of which social security provider is primarily responsible for providing benefits in the case of multiple disabilities in the form of mental and psychological disorders does not depend on where the main focus of the need and the assistance provided lies.
The decisive factor for the application of the rule on the priority between youth welfare services and social assistance pursuant to Section 10 Paragraph 4 Sentence 2 of the German Social Code, Book VIII (SGB VIII), is that the recipient had both an entitlement to youth welfare services and an entitlement to social assistance, and that both services are equal, similar, corresponding, congruent, overlapping, or identical (Federal Administrative Court, Judgment of September 23, 1999 – 5 C 26/98; Hessian State Social Court, Judgment of February 18, 2008 – L 9 SO 44/07).
5. Decision on employment promotion according to the German Social Code, Book III (SGB III)
State Social Court of Baden-Württemberg, Judgment of 25 February 2011, – L 8 AL 3458/10 –
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6. Slide presentation on ALG II / Status: March 16, 2011, prepared by Harald Thome
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
