1.1 – Berlin-Brandenburg State Social Court, Judgment of January 26, 2011, – L 28 AS 2276/07, Appeal allowed
A cost reduction request is unlawful if no consultation was provided by the job center.
The conditions under which a tenant who becomes dependent on assistance has a right to early release from a fixed-term tenancy against their landlord in the event of becoming dependent on assistance under the German Social Code, Book II (SGB II), require consultation with the job center in the case of a cost reduction request.
However, as long as the social security provider fails to clarify its legal position and the course of action it advocates towards the landlord in such a way as to enable the tenant to enforce their rights against the landlord, cost-reduction measures are regularly subjectively impossible for the employable person receiving assistance. These principles, developed by the Federal Social Court in connection with accommodation costs that are partly based on a legally invalid foundation (see Federal Social Court, judgment of September 22, 2009 – B 4 AS 8/09 R –, para. 23), are applicable here.
The allocation of costs for accommodation and heating according to capita shares must be carried out before deducting the flat-rate allowances for hot water.
Donations to a person in need from a family member, which are not made in the form of a loan and are transferred directly by the family member to the landlord of the apartment occupied by the person in need, do constitute earmarked income, but are not exempt from being counted as income, since they serve no other purpose than the benefits under the German Social Code, Book II (SGB II). However, in the interest of considering the intended purpose, these donations are primarily to be counted as income not towards the cost of living, but towards the costs of accommodation and heating.
1.2 – Baden-Württemberg State Social Court, decision of March 1, 2011, – L 12 AS 622/11 ER-B –
1.3 – North Rhine-Westphalia State Social Court, decision of 11 March 2011, – L 7 AS 1594/10 B –
No grant of legal aid on the occasion of the son's First Communion (see judgment of the Bavarian State Social Court of 23.04.2009 – L 11 AS 125/08).
++ Note: See also the decision of the Bavarian State Social Court of 13 October 2010, – L 11 AS 729/10 B ER –, published in the case law ticker of Tacheles KW 51/2010.
The costs of a confirmation celebration do not constitute an atypical need within the meaning of Section 21 Paragraph 6 of the German Social Code, Book II (SGB II).
The costs for new shoes and the cleaning of clothes are included in the standard allowance; this is not a special need within the meaning of Section 21 Paragraph 6 of the German Social Code, Book II (SGB II).
The costs of entertaining and accommodating guests are not expenses that the applicants are required to bear, as organizing the celebration is not the responsibility of the confirmands, but rather of their parents, meaning that, if applicable, their mother should have asserted the claim. Furthermore, this is not an unavoidable need within the meaning of Section 23 Paragraph 1 of the German Social Code, Book II (SGB II) – Section 21 Paragraph 6 of the SGB II is not applicable, as it is not a recurring expense.
1.4 – North Rhine-Westphalia State Social Court, Judgment of 20 January 2011, – L 7 AS 119/08 –, Appeal allowed
An entitlement to benefits based on a temporary community of need also exists if the claimant (minor child) has already received benefits (social assistance) as a member of another community of need, but the mother of the child has not paid him the pro rata social assistance for the time in which the child stayed with his father.
HB cannot be referred to asserting his needs against his mother through legal proceedings. Such a referral appears unsuitable because, according to Section 33 Paragraph 2 Sentence 1 of the German Social Code, Book II (SGB II), a potential maintenance claim of the recipient of benefits for securing subsistence under civil law does not transfer to the provider of benefits under the SGB II if the person entitled to maintenance lives in a household with the person obligated to pay. In this respect, the principle of self-help under Section 2 of the SGB II is superseded by the specific provision of Section 33 of the SGB II (Münder in LPK-SGB II, 3rd edition, 2009, Section 33, marginal note 34).
The claimant, as part of the household with his father, is entitled to social assistance amounting to 1/30 of the relevant standard rate.
++ Note: Appeal allowed, because there is no supreme court decision yet on the question of whether an entitlement to benefits based on a temporary community of need can also exist if the claimant has already received benefits as a member of another community of need for the period in dispute.
1.5 – North Rhine-Westphalia State Social Court, decision of 21 March 2011, – L 19 AS 66/11 B –
Granting of legal aid for the sufficient prospect of success that the job center, in carrying out its instructions, has made monthly deductions for the distribution of the income (inheritance) over twelve months in an amount that completely extinguishes HB's entitlement to benefits under the SGB II.
This approach will be assessed based on the Federal Social Court's (BSG) jurisprudence regarding the so-called distribution period. According to this jurisprudence, the distribution of one-off income is generally not to be fully offset against the monthly benefit; rather, a residual benefit amount must regularly be left over to ensure the continuation of compulsory insurance coverage (e.g., BSG judgments of September 30, 2008 – B 4 AS 29/07 R – and – B 4 AS 57/07 R –; however, regarding the amount of an inflow of €2,500.00, the BSG judgment of February 18, 2010 – B 14 AS 76/08 R –, paragraph 19, appears to differ).
1.6 – North Rhine-Westphalia State Social Court, decision of 16 March 2011, – L 19 AS 1563/10 B –
If the move has already been completed, the need for the assurance under Section 22 Paragraph 2 of the German Social Code, Book II (SGB II) ceases to exist, at least if, as in this case, the benefit provider has already made a decision regarding the costs of the (new) accommodation.
The assurance pursuant to Section 22 Paragraph 2 of the German Social Code, Book II (SGB II), which is issued as an administrative act, is, unlike the approval pursuant to Section 22 Paragraph 3 regarding moving costs (cf. Federal Social Court judgment of May 6, 2010 – B 14 AS 7/09 R –, paragraph 13), not a prerequisite for the entitlement to higher housing costs pursuant to Section 22 Paragraph 1 of the SGB II. Rather, the assurance procedure serves solely an informational and warning function to prevent benefit recipients from moving without sufficient reason and/or renting unsuitable accommodation
1.7 – Saxon State Social Court decision of 07.03.2011, – L 7 AS 735/10 B ER –
Exclusion according to § 7 para. 5 SGB II also applies to semesters on leave.
According to Section 7 Paragraph 5 Sentence 1 of the German Social Code, Book II (SGB II), trainees whose training is eligible for funding under the Federal Training Assistance Act (BAföG) are not entitled to benefits to secure their livelihood. In the Senate's view, higher education is also eligible for funding in this sense if a student enrolled at a university (or matriculated at a university) takes a leave of absence – for whatever reason (contra: Saxon State Social Court, decision of January 13, 2010 – L 2 AS 762/09 B ER – not published –; Berlin-Brandenburg State Social Court, decision of February 5, 2008 – L 25 B 146/08 AS ER, para. 7; Leipzig Social Court, decision of November 5, 2009 – S 9 AS 3293/09 ER, para. 22).
1.8 – Bavarian State Social Court decision of 17 January 2011, – L 11 AS 889/10 B ER –
An order for periods prior to a court decision can only be granted in exceptional cases, if a serious, irreparable and unreasonable disadvantage that is still present is credibly demonstrated, and a particular need to catch up due to the refusal of benefits in the past will continue to have an effect in the future, or if a claim clearly exists (cf. decision of the Senate of 12.04.2010 – L 11 AS 18/10 B ER -).
1.9 – Bavarian State Social Court Judgment of 24 November 2010, – L 16 AS 260/10 –
1.10 – Bavarian State Social Court decision of 04.11.2010, – L 7 AS 714/10 B ER –
In its decision of July 7, 2010, file number 1 BvR 2556/09, the Federal Constitutional Court ruled that the fundamental right to a guaranteed minimum standard of living that ensures human dignity is not violated by the crediting of income. This fundamental right only applies if and to the extent that other means of guaranteeing a dignified minimum standard of living are not available.
The applicant does not define the level of the subsistence minimum, even though she argues that at least €780 is needed to cover basic necessities in addition to child benefit and maintenance advance payments. The Federal Constitutional Court ruled in its judgment of February 9, 2010 (case number 1 BvL 1/09) that the provisions of the German Social Code, Book II (SGB II) regarding the level of standard benefits must be applied until the end of 2010.
In a further ruling dated March 11, 2010 (case number 1 BvR 3163/09), the Federal Constitutional Court determined that the crediting of child benefit against benefits under the German Social Code, Book II (SGB II), is specifically compatible with the Basic Law. Child benefit serves to exempt the child's subsistence minimum from income tax for taxpayers. However, the legislature is not obligated to provide corresponding social benefits to individuals who do not earn taxable income.
1.11 – Bavarian State Social Court decision of 29.11.2010, – L 7 AS 822/10 B ER –
The applicant has no right to demand that the job center grant benefits without examining an inheritance.
The respondent is obligated to verify the eligibility requirement of need. If there are indications of need, the respondent must, on its own initiative, investigate whether the applicant has income or assets from an inheritance (for the distinction between income and assets based on availability, see Federal Social Court, judgment of August 30, 2010, B 4 AS 70/09 R, paragraph 15).
At the same time, pursuant to Section 60 Paragraph 1 of the First Book of the Social Code, the applicant is obligated to provide relevant facts and, upon request from the authorities, to submit documents or consent to their submission. Whether a case truly involves a "pseudo-inheritance" can only be verified if the applicant cooperates in accordance with the law. Failure to do so risks the denial of benefits due to lack of cooperation.
1.12 – Bavarian State Social Court Judgment of 24 November 2010, – L 16 AS 426/09 –
No retraining as a makeup artist or beautician (stylist), because according to § 85 para. 1 no. 1 SGB III, it must be established that the measure is also appropriate in light of the situation and development of the labor market.
A measure is inappropriate in light of the situation and development of the labor market if it prepares for a professional activity for which no significant suitable employment opportunity is expected to exist within a reasonable time on the relevant labor market (Stratmann in Niesel/Brandt, SGB III, 5th ed., § 85, marginal note 5 with reference to the highest court rulings of the Federal Social Court).
2. Decisions of the social courts on basic income support for job seekers (SGB II)
2.1 – SG Karlsruhe decision of 26.10.2010, – S 5 AS 3363/10 –
A household unit as defined in Section 7 Paragraph 3 Number 3 c) of the German Social Code, Book II (SGB II), can only exist between two partners. Such a partnership presupposes a relationship of a certain exclusivity (fidelity), i.e., a long-term connection between two people that does not permit any other cohabitation of the same kind.
Section 7, paragraph 3a of the German Social Code, Book II (SGB II) does not provide a legal definition of the term "partner," but rather refers to it. It does not establish a presumption of a partnership, but only – if a partnership is proven – a presumption of the mutual intention to assume responsibility for one another and to stand up for one another.
2.2 – Social Court Dresden Judgment of 29.06.2010, – S 40 AS 390/09 –
A restrictive application of the German Social Code, Book II (SGB II), such that the reimbursement of operating costs only reduces the costs of accommodation for the following month to the extent that it is based on advance payments made by the basic income support provider, is not warranted.
2.3 – Social Court Dresden Judgment of 22.09.2010, – S 29 AS 3431/10 –
When determining income from dependent employment, the amount added to the gross salary in the payroll statements for the possibility of private use of a company car is not to be taken into account.
The possibility of using a company car for private purposes does not constitute income in the form of money, but rather a benefit in kind. The use of the company car thus represents a benefit in kind tied to a specific purpose, since the company car is to be used for business purposes according to the company car agreement. The possibility of private use of the company car does not affect the plaintiff's situation so favorably that benefits under the German Social Code, Book II (SGB II) would no longer be justified.
2.4 – Berlin Social Court, decision of 17 February 2011, – S 149 AS 414/11 ER –
1. There are doubts as to whether the indefinite exclusion from benefits pursuant to Section 7 Paragraph 1 Sentence 2 Number 2 of the German Social Code, Book II (SGB II), without differentiation as to whether job seeking was already the purpose of entry or later became the sole purpose of residence, is compatible with the European enabling provision of Article 24 Paragraph 2 of Directive 2004/38/EC (Citizens' Rights Directive) in conjunction with Article 14 Paragraph 4 Letter b of the Citizens' Rights Directive.
2. The conformity of the exclusion of benefits with European law is irrelevant if another right of residence exists. Such a right can arise not only from the freedom of movement for workers and the right of establishment, but also, under certain circumstances, from parental responsibility for a minor child entitled to freedom of movement.
3. Insofar as it cannot be sufficiently clarified within the framework of preliminary legal protection proceedings whether another right of residence exists, a balancing of interests regularly weighs in favor of the applicants, given that benefits under the German Social Code, Book II (SGB II) continuously ensure the guarantee of a dignified minimum standard of living under Article 1 Paragraph 1 of the German Basic Law (GG) in conjunction with the social state principle of Article 20 Paragraph 1 of the German Basic Law (GG).
2.5 – Social Court Berlin Judgment of 04.03.2011, – S 37 AS 18517/10 –
A rent reduction request is always necessary when those affected have a need for advice regarding the values deemed relevant by the job center, or when circumstances have arisen that mean they could no longer expect that only part of the costs would be covered when they became dependent on assistance (increase in the household size, newly established ties to the immediate living environment, onset of a disability affecting the apartment, revision of the AV values, etc.).
In Berlin, regarding the size of the living space for a household of three people receiving social assistance, a two- to three-room apartment with a size of up to 80 square meters and a basic rent of up to €369.90 is considered appropriate.
To determine reasonable operating costs, the local operating cost index must be consulted (Federal Social Court ruling of October 19, 2010 – B 14 AS 2/10 R). No deductions should be made from the abstractly reasonable operating costs, because the amount of ancillary costs is not primarily determined by the living standard (elevator, green space, etc.), but rather by the building's age and type. Therefore, it is not the case that high operating costs are typically incurred for apartments with upscale amenities or in better locations.
2.6 – Social Court Berlin, judgment of 17 February 2011, – S 157 AS 32385/10 –
Hartz IV recipients in Berlin are not entitled to have the costs of move-in renovations for a newly rented apartment covered.
Because the big city offers enough apartments that are ready to live in immediately without renovation.
3. Decisions of the State Social Courts on Social Assistance (SGB XII)
3.1 – Rhineland-Palatinate State Social Court, Judgment of 18 February 2011, L 1 SO 33/09 –, Appeal allowed
Offsetting against an overpayment arising from the service provision relationship between the care facility and the social welfare agency is possible in the case of a simple overpayment. If the social welfare agency asserts changes to the benefit entitlement of the social welfare recipient, a reversal of the transaction must be carried out in accordance with Sections 45 and 48 of the German Social Code, Book X (SGB X).
Claims by operators of inpatient care facilities against social welfare providers for the inpatient care of social welfare recipients are subject to a four-year limitation period.
No repayment of social assistance is required if the relevant grant notice has not been revoked.
She must continue to be held to its binding effect (§§ 77 SGG, 39 para. 2 SGB X), in particular over the entire period, since this approval was granted until further notice – as a permanent administrative act.
This failure to withdraw the decision is a substantial error which, contrary to the opinion of the social assistance provider, is not comparable to a clerical or arithmetic error that can be corrected according to § 38 SGB X.
3.3 – Berlin-Brandenburg State Social Court, Judgment of 10 March 2011, – L 15 SO 83/09 –
When granting integration assistance for attending a day care center for disabled people, no contribution towards the cost of lunch there is to be made for pension income below twice the standard rate.
The shared lunch in a workshop for disabled people is an integral part of integration assistance under social welfare law and is therefore not to be classified as subsistence assistance (see BSG judgment of 09.12.2008, -B 8/9b SO 10/07 R -).
4. Decisions of the social courts on social assistance (SGB XII)
4.1 – Social Court Karlsruhe, judgment of 11 February 2011, – S 1 SO 5181/10 –
The marital property regime of separation of property agreed upon in a prenuptial agreement, as well as a mutual waiver of maintenance for the past, present and future including in cases of hardship agreed upon between spouses, does not preclude the crediting of income exceeding the needs of one spouse against the social welfare needs of the other spouse.
5. Recalculation of the standard benefit rates for SGB II and SGB XII
Author: Beate Mogwitz, LL.M. (Warwick), Judge at the Federal Social Court, currently Federal Ministry of Labour and Social Affairs, Source: jurisPR-SozR 6/2011 Note 1
I. Introduction
The starting point for the recalculation of standard benefit rates is the ruling of the Federal Constitutional Court of February 9, 2010 (1 BvL 1/09, 1 BvL 3/09, 1 BvL 4/09 – BVerfGE 125, 175 = NJW 2010, 505) on the unconstitutionality of the standard benefits for adults and children under the German Social Code, Book II (SGB II). The ruling was based on a referral order from the Higher Social Court of Darmstadt of October 29, 2008 (L 6 AS 336/07) and two referral orders from the Federal Social Court of January 27, 2009 (B 14 AS 5/08 R and B 14/11b AS 9/07 R) concerning the constitutional question of whether the amount of the standard benefit for securing subsistence for adults under Section 20, paragraphs 1 to 3, of the SGB II and for children up to the age of 14 is unconstitutional. Section 28 Paragraph 1 Sentence 3 Number 1 of the German Social Code, Book II (SGB II), as amended on December 24, 2003 (Federal Law Gazette I, p. 2954), is compatible with the German Basic Law (GG).
The Federal Constitutional Court (BVerfG) found a violation of the fundamental right to a guaranteed minimum standard of living that ensures human dignity, as enshrined in Article 1 Paragraph 1 of the Basic Law in conjunction with the social welfare principle of Article 20 Paragraph 1 of the Basic Law. This violation was not due to the level of the standard benefit and the social allowance being manifestly insufficient in itself, but rather because the manner in which they were determined and calculated did not meet the constitutional requirements of coherence and transparency. In its ruling, the Federal Constitutional Court issued a number of specific requirements to the legislature for the new determination of the standard benefits in a constitutionally compliant procedure and set a deadline of December 31, 2010, for this purpose. On December 3, 2010, the German Bundestag passed the Act on the Determination of Standard Needs and the Amendment of Books Two and Twelve of the Social Code in its third reading (BT-Drs. 17/3404, BT-Drs. 17/4032, BT-Drs. 17/4095). The Act implements the ruling of the Federal Constitutional Court, but in addition to the recalculation of standard needs and educational and participation benefits for children and young people, it also contains a number of other changes to the benefit provisions of SGB II and SGB XII. After the Bundesrat rejected the Act on December 17, 2010, two mediation procedures followed. On February 25, 2011, the Bundestag and Bundesrat finally adopted the law on the determination of standard needs and the amendment of the Second and Twelfth Books of the Social Code, including the amendments proposed by the Mediation Committee (BT-Drs. 17/4719, BT-Drs. 17/4830), which, however, essentially concerned other aspects than the determination of standard needs.
II. Systematics of Laws
The determination of standard benefit rates is now carried out by parliamentary law, in accordance with the requirements of the Federal Constitutional Court. The Ordinance implementing Section 28 of Book Twelve of the Social Code (Standard Benefit Rate Ordinance) of June 3, 2004 (Federal Law Gazette I, p. 1067) is repealed.
Section 28 of Book Twelve of the Social Code establishes the framework and principles for determining standard benefit rates. The specific calculation of these rates, however, is governed by the separate Act on the Determination of Standard Benefit Rates pursuant to Section 28 of Book Twelve of the Social Code (Standard Benefit Rate Determination Act – RBEG). This Act specifies the details and concrete parameters for calculating the amount of the standard benefit rate. Section 28 of Book Twelve of the Social Code and the RBEG are related to each other like the "Basic Law" and the "implementing law." This structure is intended to allow the determination of standard benefit rates for the next income and expenditure survey to be carried out without amendments to Book Twelve of the Social Code, solely through a new Standard Benefit Rate Determination Act. The annex to Section 28 of the German Social Code, Book XII (SGB XII) contains, in tabular form, the classification into standard benefit levels and assigns to these levels the corresponding euro amounts applicable from January 1, 2011. This annex is to be continued in future updates and recalculations of the standard benefit rates and serves as a clear overview. The SGB XII, in conjunction with the Standard Benefit Rate Adjustment Act (RBEG), remains the reference system for the German Social Code, Book II (SGB II) (Section 20, Paragraph 5, Sentence 2, SGB II).
III. Recalculation of standard benefit rates
1. The Income and Expenditure Survey (EVS)
The Income and Expenditure Survey (EVS) remains the basis for determining standard benefit rates (§ 28 para. 1, para. 2 sentence 2 SGB XII). The EVS 2008 is the relevant data for the current calculation of standard benefit rates (§ 1 RBEG). The EVS is an official statistic of the Federal Statistical Office, compiled according to the Law on Statistics of Private Household Accounts, and has been collected every five years since approximately 1963. Up to 60,000 households, or approximately 0.2% of all private households in Germany across all social strata, participate in the survey. The EVS provides information on the income, assets, and debt situation, as well as the consumption expenditures of private households. Four groups each record their consumption expenditures in a household ledger for one quarter, thus continuously for a total of one year. The Federal Statistical Office analyzes the household ledgers, a process that takes approximately one and a half years. The results of the samples are weighted and extrapolated to the entire population. To determine the standard benefit rates, special analyses of the samples are prepared. The Federal Ministry of Labour and Social Affairs commissions these analyses from the Federal Statistical Office in accordance with the requirements of Section 28 of the German Social Code, Book XII (SGB XII), in conjunction with the Standard Benefit Rate Calculation Act (RBEG) (Section 28, Paragraph 3, Sentence 1, SGB XII). These requirements concern the type and composition of the households to be analyzed (Section 28, Paragraph 3, Sentence 2, SGB XII), the delimitation of the reference group according to its income (Section 28, Paragraph 3, Sentence 3, SGB XII), and the determination of the specific lower income bracket as the benchmark (Section 8, Paragraph 3, Sentence 4, SGB XII).
Editor's note:
The next issues of the juris PraxisReport Sozialrecht will contain further articles dealing with the new regulations of the German Social Code, Book II (SGB II) and Book XII (SGB XII):
Overview of the reform of SGB II benefit law (Dr. Karola Piepenstock)
New benefits for education and participation in SGB II, SGB XII and BKGG (Dr. Andy Groth)
Continue here:
6. Collection of texts on securing one's livelihood. Here are a few more comments from Harald Thome on the subject.
The book comprises approximately 750 pages. The texts were compiled by me to the best of my knowledge and belief, in consultation with various experts. Special features include: a complete collection of texts from the German Social Code (SGB II/SGB XII/SGB I/SGB X/SGG) with all regulations and, for the complete statutes, a table of contents. The SGB III is also fully covered in the benefit-related sections, along with various other laws such as housing benefit, child benefit, the Code of Civil Procedure (ZPO), the German Civil Code (BGB)... right up to the Passport Act, the Düsseldorf Table, and attachment exemption limits. Each sentence is preceded by a superscript sentence number. This is a comprehensive practical reference work at the unbeatable price of €10, plus €1 for Tacheles (a German acronym for "Tacheles"). If the book achieves sufficient distribution—which I expect it will—it will be regularly reprinted. This is crucial for practitioners, given the rapid pace of change in social law
Sample text: www.nomos-shop.de (pdf)
7. HEGA 03/11 – 09 – Withdrawal, revocation of the grant notice and recovery of benefits under the German Social Code, Book II (SGB II) – Individual claim
Reference number: SP II 21 – II-2080.3 / II-1403
Valid from: 21.03.2011
Valid until: 31.12.2012
SGB II: Directive (GA No. 06/2011)
SGB III: –
Reference: HEGA 04/07- 26 – (GA 04/2007), HEGA 09/10 – 08 – Guidance on Individual Claims dated 20.09.2010
Here: The directive is being revised due to the adaptation of the chapter on the withdrawal of an unlawful, favorable administrative act pursuant to Section 45 of the German Social Code, Book X (SGB X).
Note regarding the introduction of ERP: For the correct recording of debit entries and offsets within the framework of individual claims, please refer to the technical working aid "Cancellation and reimbursement with ERP - individual claim - valid from 01.01.2011".
Reporting obligation: –
Summary
The directive essentially corresponds to General Administrative Regulation No. 04/2007, which expired on December 31, 2010. The procedure for recourse against members of the household receiving benefits is being adjusted. A reversal of the decision is not possible with respect to all members of the household receiving benefits, as the actions of the authorized representative or partner cannot be attributed to them.
1. Initial situation
2. Mandate and intention of the higher management level
3. Own decision and intention
4. Individual tasks
1. Initial situation
The presumption of representation under Section 38 of the German Social Code, Book II (SGB II) only applies to the application for and receipt of benefits under the SGB II. Notices regarding the reversal of claims must be addressed individually to the respective members of the household receiving benefits.
Numerous social court rulings (including those of the Social Courts of Dortmund, Koblenz, Lüneburg, Saarland, and Schleswig) and the Federal Ministry of Labor and Social Affairs' directive on the individual principle make the guidelines for the procedure of reversing wrongfully paid benefits indispensable. To continue ensuring lawful procedures at job centers, the existing directive must be replaced by the new business instruction. The procedure for recourse against members of the benefit unit will be adjusted. This adjustment corresponds to the guidance document on individual entitlement published on September 20, 2010. Revocation is not possible with respect to all members of the benefit unit, as the actions of the authorized representative or partner cannot be attributed to them.
2. Mandate and intention of the higher management level
The Federal Ministry of Labor and Social Affairs (BMAS) expects job centers to follow lawful procedures when withdrawing or revoking benefit approval notices and reclaiming benefits under the German Social Code, Book II (SGB II). Numerous social court rulings and the BMAS directive on the individual principle necessitate this directive.
3. Own decision and intention
The aim is to ensure nationwide that job centers adhere to lawful procedures when withdrawing or revoking benefit approvals and reclaiming benefits under the German Social Code, Book II (SGB II).
3.1 Effects
Since, according to the concept of the German Social Code, Book II (SGB II), benefit entitlements are not structured as a collective entitlement of the household but as individual entitlements, this means that decisions regarding repayment must differentiate between the individual members of the household. Cancellation and repayment can only be based on the amount wrongfully paid to each individual. This must already be taken into account during the hearing pursuant to Section 24 of the German Social Code, Book X (SGB X) (corresponding template texts are available). These are primarily cases involving income crediting according to the needs-based allocation method.
The presumption of authorization under Section 38 of the German Social Code, Book II (SGB II), applies, according to the explicit wording of the provision, only to the application for and receipt of SGB II benefits (see paragraph 38.4 of the Technical Note on Section 38 SGB II). For other procedural stages, in particular the revocation and recovery proceedings, recourse cannot be made to Section 38 SGB II and the presumed authorization of the household unit. If a member of the household unit is not authorized to represent the household unit in another way, e.g., as a legal representative, then notices must be addressed exclusively to the respective affected party. In this case, the hearing must also take place directly with the affected party. However, minor children are generally represented by their parents. Therefore, the limitation of the power of representation does not apply here. The parents, as legal representatives, are the addressees of the notices, and the notice must clearly state which minor child(ren) is/are affected by the revocation and reimbursement and to what extent. If declarations need to be made to the child, it is sufficient to make them to one parent.
3.2 Legal Assessment
Whether and to what extent benefit award notices should be revoked or withdrawn must be examined individually for each benefit recipient within the household. The legal basis for this is found in Sections 45 and 48 of the German Social Code, Book X (SGB X).
When examining grounds for revocation or withdrawal, it must be noted that the represented party must accept responsibility for the declarations of their representative, as well as the representative's knowledge or constructive knowledge of certain circumstances (§§ 164, 166 para. 1 of the German Civil Code). However, fault on the part of the representative (intent or gross negligence) is only attributed to the represented party if a legal representative (in particular, parents for their minor children) acted (§ 278 of the German Civil Code), but not if the authorization is based on the presumption rule of § 38 of the German Social Code, Book II. In the latter case, a revocation or withdrawal pursuant to Section 45 Paragraph 2 Sentence 3 Number 2 or Number 3 Alternative 2 of the German Social Code, Book X (SGB X) and Section 48 Paragraph 1 Sentence 2 Number 2 or Number 4 Alternative 2 of the German Social Code, Book X (SGB X) is only possible if the beneficiary himself acted intentionally or with gross negligence or by disregarding the required care.
The overpayment amount attributable to each individual member of the benefit unit can be determined via the "Personal Account" screen in A2LL. For periods prior to August 2010, this determination is only possible manually by comparing the horizontal overview in A2LL before and after the income deduction.
3.3 Cancellation in case of change of circumstances pursuant to Section 48 SGB X
With respect to the person who earned the income (regardless of whether they are an authorized representative or another individual), a revocation pursuant to Section 48 Paragraph 1 Sentence 2 Number 2 of the German Social Code, Book X (SGB X) may be considered, as they have failed to comply with the obligation to report significant changes. The reporting obligations apply both to the (presumed) authorized representative and to the other members of the benefit unit; granting power of attorney does not negate an individual member's status as a party to the proceedings. Section XI of the application form refers to these reporting obligations; the authorized representative must ensure that the members of the benefit unit are informed of these obligations. The person must have intentionally or through gross negligence violated the reporting obligations. If the person who earned the income is also the applicant, at least gross negligence will generally be assumed.
If there is no intentional or grossly negligent breach of notification obligations, the decision regarding the granting of benefits must be revoked pursuant to Section 48 Paragraph 1 Sentence 2 Number 3 of the German Social Code, Book X (SGB X). In exceptional cases, revocation pursuant to Section 48 Paragraph 1 Sentence 2 Number 4 of the SGB X may also be considered if the recipient knew, or due to a particularly serious breach of the duty of care, did not know, that the entitlement had lapsed in whole or in part.
For other individuals who did not earn the income themselves but are affected by the overpayment due to the application of the needs-based calculation method, the reversal is only possible under Section 48 Paragraph 1 Sentence 2 Number 3 of the German Social Code, Book X (SGB X). Due to the neutral wording ("income has been earned"), this provision also applies if not the claimant, but another person whose financial circumstances are relevant to the benefit entitlement, has earned income (see also von Wulffen/Wiesner, SGB X, Section 48, marginal note 24).
3.4 Withdrawal of an unlawful favorable administrative act pursuant to Section 45 of the German Social Code, Book X (SGB X)
Whether an unlawful, favorable administrative act can be revoked retrospectively is to be assessed according to Section 45 Paragraph 2 Sentence 3 of the German Social Code, Book X (SGB X).
The revocation for the past is possible according to § 45 para. 2 sentence 3 SGB X, among other things, if the administrative act is based on information that the beneficiary intentionally or grossly negligently provided in a materially incorrect or incomplete manner (No. 2), or if the beneficiary knew of the illegality of the administrative act or did not know of it due to gross negligence (No. 3).
With respect to the (presumed) authorized representative (regardless of whether he himself earned the income), it will generally be possible to revoke the approval in the amount of the overpayment attributable to him, since he either provided false information during the application process (No. 2) or did not sufficiently examine the approval notice (No. 3).
A revocation of payments made against minor children is possible, as they are responsible for the actions of their legal representative. Due to the principle of individual liability, minor children are also liable for any benefits wrongfully granted to them. The repayment notice is addressed to the minor child but must also be served on their legal representative. This is reflected in the wording: "Insofar as this notice concerns your child, it is addressed to you as their legal representative.".
Adult children and the partner's children (not the applicant's own children) are not subject to recourse. Benefits paid to these individuals generally cannot be reclaimed from them because they did not cause the unlawful granting of benefits or were unaware of the unlawfulness of the administrative act, and the actions of the authorized representative cannot be attributed to them. This also applies to the partner insofar as the repayment claims are directed against the authorized representative. If the partner themselves had, for example, income or assets that were not declared in the application, grounds for revocation exist against them pursuant to Section 45 Paragraph 2 Number 2 or 3 of the German Social Code, Book X (SGB X).
3.5 Pending proceedings
In objection or legal proceedings, the decisions issued against the authorized representative or the person who earned the income must be amended accordingly by limiting the revocation and reimbursement to the portion attributable to these persons. A revocation or cancellation and reimbursement decision must be issued against other members of the household if the one-year period under Section 45 Paragraph 4 of the German Social Code, Book X (SGB X) has not yet expired.
An appeal against judgments issued by the Social Court (SG) is not advisable due to lack of prospects of success. However, if the one-year period stipulated in Section 45 Paragraph 4 of the German Social Code, Book X (SGB X) has not yet expired, corresponding notices must be issued to all members of the benefit unit (BG).
Pending objection and legal proceedings must be examined to determine whether, due to the one-year deadline not having expired, the decisions can still be corrected – as described above.
++ Note: Is the withdrawal and cancellation of benefits under SGB II against a minor in need of assistance due to false information provided by the mother unlawful?
No, because the withdrawal and cancellation of benefits under the Second Book of the Social Code against a minor, 15-year-old in need of assistance, due to false statements made by his mother as representative of the household in relation to the concealment of her widow's pension when applying for unemployment benefit II, is permissible (Bavarian State Social Court judgment of 01.07.2010 - L 11 AS 162/09, appeal allowed at the Federal Social Court under file number: B 14 AS 144/10 R).
Source: Questions and answers on basic income support under the German Social Code, Book II (SGB II), published in the Tacheles legal news ticker, week 42/2010, author: Willi 2 of Tacheles
++ Note: An adult Hartz IV recipient living in the same household is not responsible for the fault of their mother if she provided false information when applying for ALG II (unemployment benefit II)
Because his mother's legal power of representation under Section 1629 of the German Civil Code (BGB), and thus any attribution of fault under Sections 166 and 278 of the BGB (for application, see BSGE 28, 258 et seq.; 42, 184, 186; 57, 274, 279; Steinwedel in Kasseler Kommentar SGB X § 45 Rn 36, von Wulffen § 45 Rn 59), ended upon reaching the age of majority. After reaching the age of majority, the representative's fault can only be attributed to him within the framework of voluntary representation (see Section 13 of the German Social Code, Book X (SGB X), Udsching/Link, Aufhebung von Nutzenbescheiden im SGB II in Die Sozialgerichtsbarkeit 2007, pp. 513, 517). Section 38 of the German Social Code, Book II (SGB II) allows a presumption of authorization only in the context of applying for and receiving benefits. However, the provision does not establish a general presumption of authorization beyond this; the represented party is not liable for the representative's negligence (cf. Udsching/Link, "Aufhebung von Leistungbescheiden im SGB II" in "Die Sozialgerichtsbarkeit 2007, pp. 513, 517; Eicher/Spellenbrink, 2nd ed., § 38, para. 19 (explicitly abandoning the different view held in the previous edition); LPK Münder/Schoch, 2nd ed., § 38, para. 17).
Source: Fundamental principles regarding revocation and recovery orders, published in the Tacheles legal news ticker, week 22/2010. Author: Willi 2 of Tacheles
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
