The additional needs provision of Section 23 Paragraph 1 Sentence 2 of the Federal Social Assistance Act (BSHG) will not be adopted into Book XII of the Social Code (SGB XII).
Section 30, paragraph 1, number 2 of the German Social Code, Book XII (SGB XII) now only recognizes the additional needs allowance for elderly or incapacitated severely disabled persons with the disability marker "G". There are no constitutional concerns regarding this new regulation.
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – North Rhine-Westphalia State Social Court, decision of March 28, 2011, – L 19 AS 43/11 B –
No legal aid will be granted for a commitment to new accommodation pursuant to Section 22 Paragraph 2 of the German Social Code, Book II (SGB II), if the apartment is no longer available, thus the person in need of assistance lacks the necessary interest in a declaratory judgment for the continuation of the proceedings.
Such a prospect of success cannot be inferred simply from the fact that the defendant wrongly treated the objection as inadmissible. The decision of the benefit provider regarding the requested assurance pursuant to Section 22 Paragraph 2 of the German Social Code, Book II (SGB II) fulfills the requirements of an administrative act (see Berlit in LPK-SGB II, 3rd ed., Section 22, marginal note 83; Lauterbach in Gagel, SGB II/SGB III, Section 22, marginal note 67). According to Section 31 Sentence 1 of the German Social Code, Book X (SGB X), such an act is any order, decision, or other sovereign measure that an authority takes to regulate an individual case in the field of public law and that is directed at producing direct legal effects externally. This also includes assurances within the meaning of Section 34 of the German Social Code, Book X (SGB X) (Engelmann in von Wulffen, SGB X, 6th ed., Section 34, marginal note 5 with further references). With the assurance pursuant to Section 22 Paragraph 2 of the German Social Code, Book II (SGB II), the benefit provider not only acknowledges the recipient's entitlement to relocate, but is also obligated, based on this decision, to regulate the reimbursement of costs for the new accommodation to the extent indicated in a future benefit notice (Lang/Link in Eicher/Spellbrink, SGB II, 2nd ed., Section 22, marginal note 69; Piepenstock in jurisPK, 2nd ed., Section 22, marginal note 92). Thus, the assurance constitutes a regulation with corresponding external effect in the field of public benefit law.
The mere fact that the assurance is not a prerequisite for entitlement to higher housing costs in the event of a necessary move to suitable accommodation (Federal Social Court judgment of November 7, 2006 – B 7b AS 18/06 R = SozR 4-4200 § 22 No. 2 para. 27) and that, for this reason, the obligation of the SGB II benefit provider to issue the assurance is regularly rejected in preliminary injunction proceedings, does not negate the assurance's regulatory character. By issuing it, the relationship between the benefit provider and the benefit recipient is regulated such that the actual costs of the new accommodation are deemed suitable within the meaning of Section 22 Paragraph 1 of the SGB II and are therefore to be taken into account in future benefit awards.
Even if the rejection of the objection as inadmissible was therefore unlawful, the fact that the apartment for which the assurance was sought was no longer available at least upon submission of the complete application for legal aid has rendered the contested administrative act moot, so that there can no longer be any interest in the possible isolated annulment of the objection decision.
If the responsible benefits agency wrongfully refuses to grant an assurance under Section 22 Paragraph 2 of the German Social Code, Book II (SGB II), the person in need of assistance generally has a legitimate interest in having the refusal declared unlawful (see also Higher Social Court of Berlin-Brandenburg, Decision of December 15, 2006 – L 5 B 1147/06 AS ER-; with limitations, Higher Social Court of Berlin-Brandenburg, Judgment of May 11, 2010 – L 5 AS 1576/09 -; Krauß in Hauck/Noftz, SGB II, Section 22, marginal note 105). Otherwise, if the benefit recipient remains in their current apartment, they would be unable to clarify under what conditions a move to another apartment is possible without negative consequences for their benefits, or they would bear the risk of having to pay the difference in rent if the benefits agency's decision proves to be correct. This applies particularly in view of the fact that, according to the prevailing case law of the Higher Social Court of North Rhine-Westphalia (see, e.g., decision of May 27, 2008 – L 20 B 75/08 AS), an assurance under Section 22 Paragraph 2 of the German Social Code, Book II (SGB II) cannot be obtained by way of preliminary legal protection. Therefore, a legitimate interest in a declaratory judgment regularly exists not only insofar as the benefit provider has deemed the move itself unnecessary, but also insofar as it has rejected the assurance due to the inadequacy of the new accommodation (contra: Higher Social Court of Berlin-Brandenburg, judgment of May 11, 2010, loc. cit.; Krauß, loc. cit.). In this respect, it is not merely a matter of clarifying elements of the claim (contra LSG Berlin-Brandenburg Besch. v. 15.12.2006 aaO), but rather the legal relationship between the parties with regard to the appropriate living space to which they are entitled, including the right to the issuance of future benefit notices on this basis concerning the costs of accommodation pursuant to Section 22 Paragraph 1 SGB II, is clarified.
2.2 – North Rhine-Westphalia State Social Court, judgment of 16 February 2010, – L 20 AS 21/09 –, appeal pending before the Federal Social Court – B 4 AS 67/11 R –
The decision of the Federal Social Court (BSG) has been met with significant criticism in the literature; in particular, it is accused of an inadmissible view of family law maintenance provisions (cf. Großmann, in: NZS 2009, p. 641, Münder/Geiger, in: NZS 2009, p. 597) as well as significant methodological flaws (Münder/Geiger, ibid., p. 598).
For this reason, a further review by the highest court appears warranted. Waiting for the outcome of the Federal Constitutional Court proceedings before a decision in the present legal dispute is not an option; because a joint motion by the parties to suspend the proceedings until the Federal Constitutional Court's decision in case 1 BvR 1083/09 could not be obtained, even after a corresponding inquiry by the Senate; while a suspension of the proceedings is generally possible without consent, it would disregard the parties' right to a judicial decision in the legal dispute, which is ready for adjudication (see also Dollinger, in: Umbach/Clemens/Dollinger, Bundesverfassungsgerichtsgesetz [Federal Constitutional Court Act], 2nd ed. 2005, § 80 para. 90 et seq.).
Note: Obligation to provide support for partner children depends on actual services rendered: Münder and Geiger contradict the Federal Social Court's decision of November 13, 2008
Short news item on "The general obligation to provide support for partner's children in the household receiving social assistance according to § 9 para. 2 sentence 2 SGB II" by Prof. Dr. Johannes Münder and RiSG Udo Geiger, originally published in: NZS 2009 issue 11, 593 – 599.
Münder and Geiger comment on a decision of the Federal Social Court (BSG) of November 13, 2008 (Case No.: B 14 AS 2/08 R, NDV-RD 2009, 62). In this decision, the court assesses the obligation to provide for a partner's child within a social welfare benefit unit pursuant to Section 9 Paragraph 2 Sentence 2 of the German Social Code, Book II (SGB II), as a constitutionally compliant expression of the principle of subsidiarity.
The authors consider this broad assumption of constitutionality problematic. While they also believe that the regulation is ultimately constitutional, they maintain this is only true with a constitutionally compliant limitation. In light of the Federal Constitutional Court's decision of November 17, 1992 (Case No.: 1 BvL 8/87, BVerfGE 87, 234), it is untenable to simply assume that a child in a household receiving benefits receives them without verifying whether these benefits are actually being paid.
2.3 – Bavarian State Social Court decision of 21 January 2011, – L 7 AS 941/10 B ER –
When assessing whether a cohabiting relationship exists, the value that the individuals concerned attach to this term is irrelevant.
Rather, the decisive factor is whether external indicators point to a partnership that is intended to be permanent, does not allow for any other similar relationship, and is characterized by internal bonds that establish mutual support between the partners, thus going beyond the relationships of a purely domestic and economic partnership.
A commitment to cover housing procurement costs (e.g., for housing advertisements or broker fees for a suitable apartment) and moving costs according to § 22 para. 3 sentence 1 SGB II is also possible if no concrete new apartment is yet in sight.
However, this assurance is at the discretion of the responsible authority. Therefore, an entitlement to the benefits only exists if the discretion in favor of the applicants is reduced to zero.
The granting of a commitment to cover housing procurement and relocation costs pursuant to Section 22 Paragraph 3 Sentence 2 of the German Social Code, Book II (SGB II) is at the discretion of the authority. Such a commitment should be granted if the conditions stipulated therein are met. However, the necessity of moving out of the current residence is not sufficient for the relocation required under Sentence 2 – this has been repeatedly confirmed by the respondent – the specific future residence must also be considered. Moving to an unsuitable residence is generally not necessary because the long-term financing of the new residence would not be guaranteed (Münder LPK-SGB II, 3rd edition 2009, Section 22, marginal note 107). Therefore, a commitment under Sentence 2 must refer to a specific, prospective residence. The applicants have not requested such a commitment. Even now – after the move has evidently taken place – the applicants have provided no information that would allow for an assessment of the suitability of the new residence.
2.5 – Bavarian State Social Court decision of 22 December 2010, – L 7 AS 924/10 B ER –
There is no entitlement to initial furnishing of the apartment according to § 23 para. 3 sentence 1 no. 1 SGB II, because these are replacement purchases.
Because couches, beds, wardrobes, and shelves are already present. The mere desire for different furnishings does not justify a need for initial furnishings. Similarly, an injury to the wife's knee – the extent and duration of which are uncertain – does not entitle her to initial furnishings.
2.6 – Hessian State Social Court Judgment of 09.02.2011, – L 6 AS 338/09 –
The employer's contribution to employee savings plans is not considered income. Unlike regular wages or salary, employer contributions to employee savings plans are not intended to cover general living expenses, but rather to build wealth (as convincingly argued by the Berlin-Brandenburg Higher Social Court in its judgment of September 10, 2009 – L 34 AS 1308/08; left open in the Federal Social Court's judgment of February 27, 2008 – Case No.: B 14/7b AS 32/06 R).
The applicant's own contribution of €40, as shown in her payslip, is not deductible from income under Section 11 Paragraph 2 of the German Social Code, Book II (SGB II) within the framework of asset-building benefits.
Employee contributions to asset-building schemes are not mentioned in the list of privileged provisions. Likewise, the German Social Code, Book II (SGB II), does not contain any additional privilege for these contributions. This also seems consistent, because it is generally not the purpose of the SGB II to contribute to asset accumulation. According to Section 11, Paragraph 2, Number 3, Letters a and b, as well as Section 11, Paragraph 2, Number 4 of the SGB II, such accumulation of financial assets is only privileged if the assets are expressly intended for retirement provision (see Federal Social Court, Judgment of February 27, 2008 - B 14/7b AS 32/06 R, Paragraph 50).
2.7 – Hamburg State Social Court, Judgment of November 11, 2010, – L 5 AS 58/07 –, Appeal allowed
No insurance allowance is deductible from the income of minors living in a household with adults receiving social assistance. Documented premiums for insurance policies taken out specifically for the minor are deductible if they are reasonable in both amount and purpose.
This clear limitation of the group of persons benefiting from the regulation clarifies the legal provision in Section 11 Paragraph 1 Sentence 3, Section 9 Paragraph 2 Sentences 1 and 2 and Section 7 Paragraph 3 No. 4 of the German Social Code, Book II (SGB II), leaves the deductibility of legally required insurance unaffected and is therefore covered by the enabling provision of Section 13 of the German Social Code, Book II (SGB II) (cf. Federal Social Court judgment of March 19, 2008, file no.: B 11b AS 7/06 R and of June 18, 2008, file no.: B 14 AS 55/07 R).
The new version of Section 6 Paragraph 1 No. 2 of the German Social Code, Book II (SGB II), which came into force on August 1, 2009, and according to which the flat rate of €30 for contributions to private insurance policies pursuant to Section 11 Paragraph 2 Sentence 1 No. 3 SGB II, which are reasonable in principle and amount, is to be deducted from the income of minors as soon as they have taken out such insurance, is not applicable to the present case because the period in dispute here is still covered by the previously applicable, deviating versions of the German Social Code, Book II (SGB II).
If the recipient is not entitled to a deduction of the lump sum under Section 3 (Paragraph 1) No. 1 of the Regulation on Unemployment Benefit II (Alg II-V), he can nevertheless claim, by direct application of Section 11 Paragraph 2 No. 3 of the German Social Code, Book II (SGB II), to have the contributions to private insurance policies that he has specifically documented deducted from his income, provided that the insurance policies he has taken out meet the requirements of the regulation. In particular, the recipient is not excluded from the consideration of insurance contributions simply because he is exempt from the deduction of the lump sum under Section 3 (Paragraph 1) No. 1 of the Regulation on Unemployment Benefit II (Alg II-V) in the specific social welfare household he lives in with his mother.
The wording of the regulation does not preclude individuals who do not fall under the flat-rate deduction rule of the ordinance from nevertheless benefiting from the deduction of private insurance contributions under Section 11 Paragraph 2 Number 3 of the German Social Code, Book II (SGB II). The primary purpose of the Regulation on Unemployment Benefit II (Alg II-V) is to provide administrative guidance for the administration of large numbers of individual cases, ensuring uniform handling of standard cases. The flat-rate deduction is ultimately intended to provide relief to the majority of affected recipients and to save the administration time-consuming individual case investigations.
If, however, a set of circumstances falls outside the general framework of the regulation, the statutory provision of Section 11 Paragraph 2 Number 3 of the German Social Code, Book II (SGB II) applies directly. Section 11 Paragraph 2 Number 3 of the SGB II generally provides for a deduction from the recipient's income in cases of this kind. This higher-ranking statutory law cannot be overridden by the regulatory authority. If the recipient does not meet the requirements of Section 3 Paragraph 1 Number 1 of the German Regulation on Unemployment Benefit II (Alg II-VO), the flat rate of €30 specified therein is not to be deducted; however, this does not entail a complete denial of the cost deduction due to the recipient's lack of belonging to the group of persons privileged by the regulation.
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – Cologne Social Court, judgment of 29 March 2011, – S 32 AS 4740/10 –
No assurance regarding the expenses for a new apartment will be granted, because 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.
According to Section 22 Paragraph 2 Sentence 1 of the German Social Code, Book II (SGB II), employable individuals in need of assistance should obtain a commitment from the local authority previously responsible for providing benefits regarding the costs of the new accommodation before concluding a lease agreement. According to Section 22 Paragraph 2 Sentence 2 of the SGB II, the local authority is only obligated to provide this commitment if the move is necessary and the costs of the new accommodation are reasonable. Given this wording, applying for such a commitment is an obligation of the applicant to themselves. If they move into new accommodation without this commitment, this will not have any adverse consequences for them, provided the move was objectively necessary and the costs of the new accommodation are reasonable. The purpose of the commitment is therefore not to enable the move itself, but merely to ensure in advance that the costs of the new accommodation will be covered in the future. This protects the individual in need of assistance from the risk of not receiving the costs, or being limited to their previous accommodation costs, if they move without a commitment. This special assurance procedure must be distinguished, from a legal perspective, from the procedure for the actual payment of costs. A legal dispute concerning the granting of an assurance is therefore resolved upon actual occupancy of the new apartment or upon issuance of the relevant approval notice for the provision of benefits for accommodation and heating, since the purpose of the assurance is solely to clarify the assumption of costs in advance (State Social Court of Mecklenburg-Western Pomerania, decision of July 22, 2008, file no.: L 10 B 203/08; State Social Court of Baden-Württemberg, decision of November 19, 2011, file no. L 7 AS 4623/10 B).
3.2 – Duisburg Social Court Judgment of 10 February 2011, – S 5 AS 252/09 –
The mold infestation in the 15 sq m basement room, the low ceilings for the 196 cm tall person in need of assistance, the psychological history of the person under 25 years of age, and the overall family situation all fulfill the criteria for a hardship case within the meaning of Section 22 Paragraph 2a Sentence 2 No. 1 of the German Social Code, Book II (SGB II), which obliges the job center to approve the move
The absence of the conditions stipulated in Section 22 Paragraph 2a of the German Social Code, Book II (SGB II) does not automatically entitle the benefit provider to cover the actual costs of accommodation and heating. Rather, the unwritten requirement of Sections 22 Paragraph 2a and 20 Paragraph 2a of the SGB II is the appropriateness of the accommodation costs (see Lang/Link in Eicher/Spellbrink, 2nd edition 2008, Section 22, marginal note 80 et seq.). Therefore, in cases of hardship that trigger the obligation to provide a guarantee, the court assumes that the benefit provider is only obligated to guarantee the future coverage of reasonable accommodation costs as defined in Section 22 Paragraph 1 of the SGB II. Section 22 Paragraph 2a Sentence 2 of the German Social Code, Book II (SGB II) does not override the general requirements and limits for taking accommodation costs into account (as expressly stated by Berlit in: LPK-SGB II, 3rd edition 2009, Section 22, marginal note 97; Social Court Berlin, decision of February 16, 2006 – S 37 AS 1301/06 ER –; see also Federal Social Court, judgment of May 6, 2010 – B 14 AS 7/09 R-).
The inclusion of the rent including utilities paid by HB's mother as HB's income within the meaning of Section 11 Paragraph 1 of the German Social Code, Book II (SGB II), is not permissible.
According to established case law of the Federal Social Court, payments made by third parties on a temporary basis, because a benefit provider is not currently paying, are not considered income. Specifically, support payments between relatives are not considered income under the law if they constitute a loan under civil law and the borrower is subject to a genuine repayment obligation (Federal Social Court, judgment of August 19, 2010 – B 14 AS 10/09 R; judgment of June 17, 2010 – B 14 AS 46/09 R with further references).
A household consisting of two minors is entitled to a total standard benefit of 180 percent.
The legislator did not intend to disadvantage minor partners in a household receiving social assistance, as is also demonstrated by the provision in Section 20 Paragraph 2 Sentence 1 of the German Social Code, Book II (SGB II), according to which the partner of a minor receives the full standard benefit so that the partners in the household can have a total standard benefit of 180 percent. No reasons are apparent that could justify a reduction of the – hypothetical – total standard benefit from 180 percent to 160 percent in light of the constitutionally mandated guarantee of subsistence through the benefits provided under SGB II.
4. Decisions of the State Social Courts on Social Assistance (SGB XII)
4.1 – North Rhine-Westphalia State Social Court, Judgment of 10 February 2011, – L 9 SO 11/08 –
Section 54 Paragraph 1 Sentence 2 of the German Social Code, Book XII (SGB XII) does not preclude the provision of Petö therapy as a service of integration assistance.
The Federal Social Court (BSG) expressly rejected the opposing view of the social welfare agency, which argued that Petö therapy was a medical procedure whose costs were not covered by health insurance and therefore, pursuant to Section 54 Paragraph 1 Sentence 2 of the German Social Code, Book XII (SGB XII), was ineligible for reimbursement by the social welfare agency. The BSG held that Petö therapy, as a form of social welfare integration assistance for participation in community life, is not excluded simply because it cannot be prescribed as a remedy under statutory health insurance.
4.2 – Saxon State Social Court decision of 04.01.2011, – L 7 SO 28/10 B ER –
A Polish citizen living in Germany is entitled to subsistence assistance pursuant to Section 23 Paragraph 1 Sentence 1 of the German Social Code, Book XII (SGB XII), and is not excluded from benefits under the SGB XII pursuant to Section 23 Paragraph 3 Sentence 1, second alternative (SGB XII) (Saxony Higher Social Court decisions of October 14, 2008, L 7 B 293/08 SO ER, and of December 17, 2009, L 7 AS 416/09 B ER).
The exclusion clause of Section 7 Paragraph 1 Sentence 1 No. 2 of the German Social Code, Book II (SGB II), according to which foreigners whose right of residence is solely for the purpose of seeking employment and their family members are excluded from benefits under the SGB II, is not applicable to those foreigners living in Germany who can invoke the European Convention on Social and Cultural Rights (EFA) of 11 December 1953 (Federal Law Gazette II 1956, p. 564) (Federal Social Court, judgment of 19 October 2010, case no. B 14 AS 23/10 R).
Claims under the EFA are limited to citizens of the states that have ratified the EFA: Belgium, Denmark, Germany, Estonia, France, Greece, Ireland, Iceland, Italy, Luxembourg, Malta, the Netherlands, Norway, Portugal, Sweden, Spain, Turkey, and the United Kingdom. (Source: Council of Europe website, www.coe.int). Poland, however, has not acceded to this agreement, therefore the exclusion clause remains applicable.
Whether Section 23 Paragraph 3 Sentence 1 Alternative 2 of the German Social Code, Book XII (SGB XII) or Article 24 Paragraph 2 of Directive 2004/38/EC are compatible with the requirements of primary Community law (cf., with differing results, the decisions of the Higher Social Court of Baden-Württemberg of 23 July 2008, Case No. L 7 AS 3031/08 ER-B; the Higher Social Court of North Rhine-Westphalia of 15 June 2007, Case No. L 20 B 59/07 AS ER; the Higher Social Court of Hesse of 13 September 2007, Case No. L 9 AS 44/07 ER; and the Higher Social Court of Lower Saxony-Bremen of 9 August 2007, Case No. L 9 AS 447/07 ER) can remain undecided in the present case.
Because the applicants are not subject to the exclusion ground stipulated in Section 23 Paragraph 3 Sentence 1 Alternative 2 of the German Social Code, Book XII (SGB XII), social assistance must be granted at least as long as their residency status is not clarified or until their deportation has been ordered in view of their dependence on social assistance.
In this respect, it must be taken into account that the entitlement to benefits pursuant to Section 23 Paragraph 1 Sentence 1 of the German Social Code, Book XII (SGB XII) is linked to the actual residence in Germany (Münder et al., Social Code, Book XII, Commentary on Teaching and Practice, 8th edition 2008, Section 23, marginal note 5) and thus even foreigners who are residing illegally in Germany are entitled to social assistance benefits (to a limited extent).
5.1 – Duisburg Social Court Judgment of 15 February 2011, – S 44(2) SO 194/09 –
According to Section 104 Paragraph 1 of the German Social Code, Book X (SGB X), if a secondarily liable social security institution has provided social benefits without the conditions of Section 103 Paragraph 1 of the SGB X being met, the social security institution against which the entitled person has or had a primary claim is liable for reimbursement, insofar as the social security institution has not already provided benefits itself before becoming aware of the benefit provided by the other social security institution.
A claim for reimbursement does not exist to the extent that the secondary benefit provider would have had to provide its benefit even if the primary benefit provider had provided it. According to Section 104 Paragraph 3 of the German Social Code, Book X (SGB X), the scope of the reimbursement claim is governed by the regulations applicable to the primary benefit provider.
The book comprises approximately 800 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 legal aid publication). 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. Questions and answers about Hartz IV
100 Questions and Answers for Those Affected and Their Advisors - By Attorney Ludwig Zimmermann - 2011, 126 pages, Paperback, €16.90.
Following the long-awaited political agreement, numerous new regulations concerning social security law came into effect on January 1, 2011. In 100 questions and answers, Ludwig Zimmermann, author of the standard work "The Hartz IV Mandate," addresses everyday and specific questions regarding the application of the German Social Code, Book II (SGB II), in a concise and easily understandable manner. The book also outlines current developments in social court practice during 2009 and 2010. Newcomers gain an initial overview of the current issues, while experienced practitioners can glean valuable suggestions for dealing with the changes and update their expertise with minimal effort.
The work is aimed at practitioners in social administration in legal aid offices, advisors in social associations, lawyers and judges.
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
