1.1 – Federal Social Court (BSG) judgment of 06.04.2011, – B4 AS 117/10 R-
Long-term unemployed people participating in further training measures are entitled to mileage allowance for the journey to and from their internship placement.
The decision regarding the amount of travel expenses to be reimbursed is governed exclusively by the provisions of the German Social Code, Book III (SGB III), if the measure itself – as in this case – has been approved as a further training measure pursuant to Section 77 SGB III. While the decision to grant such a measure is at the discretion of the basic income support provider pursuant to Section 16 Paragraph 1 Sentence 2 of the German Social Code, Book II (SGB II), the granting of travel expense reimbursement is, as a consequence of the fundamental decision, a mandatory decision pursuant to Section 81 SGB III.
As far as the scope of travel expense reimbursement is concerned, there is no deviating regulation within the meaning of Section 16 Paragraph 2 Sentence 1 of the German Social Code, Book II (SGB II), in the basic income support law. An analogous application of Section 6 Paragraph 1 Number 3b of the German Regulation on Unemployment Benefit II (Alg II-V) is not possible. There is no unintended gap in the regulations concerning travel expense reimbursement within the SGB II.
1.2 – Federal Social Court (BSG) judgment of 6 April 2011, – B 4 AS 5/10 R-
The action for performance brought by HB, correctly seeking to establish whether proof of a concrete offer to conclude a lease agreement can be required as a prerequisite for an assurance, has become inadmissible at the latest in the appeal proceedings.
The legal interest in obtaining this assurance has ceased to exist. Because HB has since moved, the subject matter of any potential assurance must now be decided in separate legal proceedings concerning the amount of housing costs. The claim in those proceedings must be pursued as a combined action for annulment and performance. As a preliminary issue, the necessity of the move must necessarily be determined in these proceedings. Against this background, there is no longer any legal interest in obtaining a separate assurance as a preliminary partial settlement.
The desired clarification of the legal question of whether the abstract necessity of a move can also be the subject of an assurance can only be clarified on the basis of a concrete set of facts.
1.3 – Federal Social Court (BSG) judgment of 6 April 2011, – B 4 AS 3/10 R-
No entitlement to lump-sum benefits for additional needs due to the provision of services for participation in working life within the meaning of Section 21 Paragraph 4 of the German Social Code, Book II (SGB II).
Advice and support provided by the basic income support provider are not, in principle, required standard measures under Section 21 Paragraph 4 of the German Social Code, Book II (SGB II). Rather, they are provided based on the general duty of the benefit provider to provide advice and support under Sections 13 and 14 of the German Social Code, Book I (SGB I), as well as the specific duty to provide advice within the framework of the basic income support mandate under Section 14 Sentence 1 of the German Social Code, Book II (SGB II).
This is therefore not a case of other assistance to obtain a suitable place in the workforce. For systematic reasons alone, the other assistance within the meaning of Section 21 Paragraph 4 of the German Social Code, Book II (SGB II) must go beyond what is assigned to the job center as a general support task, for example, under Section 14 Sentence 1 of the SGB II.
The therapy, in terms of its content and focus, does not constitute a measure for participation in working life according to Section 33 of the German Social Code, Book IX (SGB IX). Its focus was on the medical care of the person with disabilities. The goal of the therapy, as described by the person with disabilities, to achieve a minimum level of functional capacity, is not a specific goal with regard to the ability to participate in working life, but can equally refer to physical and mental health. Moreover, it is inherent in the nature of many rehabilitation measures, even specific ones, that they have a multifunctional effect. Medical rehabilitation measures can also be aimed at restoring or maintaining employability according to Section 26 of the German Social Code, Book IX (SGB IX).
1.4 – Federal Social Court (BSG) judgment of 6 April 2011, – B 4 AS 12/10 R-
Additional payments for operating costs relating to a period in which the benefit provider also had to cover unreasonable costs within the meaning of Section 22 Paragraph 1 of the German Social Code, Book II (SGB II), are considered costs of accommodation under Section 22 Paragraph 1 Sentence 1 of the SGB II, even if the ongoing costs can no longer be fully borne.
The additional claim must be considered as an actual, current need at the time it becomes due. However, this does not mean that this need is also to be assessed for appropriateness based on the circumstances in the month it becomes due. Rather, the assessment of appropriateness is based on the actual and legal conditions during the period in which the costs were incurred. Only such an interpretation of Sections 22 Paragraph 1 Sentences 1 and 3 of the German Social Code, Book II (SGB II) does justice to the protective function inherent in these provisions. The fact that the job center had already made it clear through cost-reduction requests that it considered the accommodation costs to be unreasonably high is irrelevant due to a lack of concrete implementation.
Only to the extent that the standard benefit is intended to cover the costs of hot water preparation on a flat-rate basis, a deduction can be made to the detriment of the person in need of assistance due to otherwise existing double coverage of needs.
2. Decision of the Federal Social Court of 16 December 2010 on social assistance (SGB XII)
2.1 – Federal Social Court (BSG) judgment of 16 December 2010, – B 8 SO 7/09 R-
Social welfare providers do not cover co-payments for medications and doctor's fees for HIV-infected individuals covered by statutory health insurance
3. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
3.1 – Berlin-Brandenburg State Social Court, decision of 16 February 2011, – L 29 AS 2314/10 B PKH –
No legal aid granted under Section 73a of the Social Courts Act (SGG) in conjunction with Section 114 of the Code of Civil Procedure (ZPO) in a minor legal dispute concerning EUR 27.
The fact that a constitutional complaint against the case law on legal aid in so-called minor legal disputes is pending before the Federal Constitutional Court (see 1 BvR 411/10) does not lead to a change in the factual or legal situation. This is all the more true since the deciding panel, in its decision of November 6, 2008, already referred to the fundamental decision of this very Federal Constitutional Court of January 22, 1959 (1 BvR 154/55) and current case law (inter alia, the decision of March 13, 1990, 2 BvR 94/88).
Note: See the decision of the Federal Constitutional Court of 24 March 2011 – 1 BvR 2493/10 –, a commentary by attorney Ludwig Zimmermann
This is very good news for all needy plaintiffs and their lawyers.
The Federal Constitutional Court has overturned the Berlin-Brandenburg State Social Court's ruling on minor offenses.
By decision of the Federal Constitutional Court of 24 March 2011 – 1 BvR 2493/10, a decision of the 10th Senate of the Higher Social Court of Berlin-Brandenburg of 11 January 2010 was overturned. See also Higher Social Court of Berlin-Brandenburg, 11 March 2011, L 10 SF 295/10 B PKH, juris, with further references.
The decision in brief:
"Whether legal aid is granted in social court proceedings depends primarily on whether the appointment of a lawyer is necessary. This is the case if an indigent person in the same situation engages a lawyer. Contrary to the opinion of the Higher Social Court, the decisive factor is not primarily the lawyer's fees, but rather the disparity between the plaintiff and the authority in terms of their knowledge and experience in litigation. It is also not unreasonable that a person with sufficient means would not shy away from relatively high legal fees if they expect to prevail and have their expenses reimbursed."
The issue concerned heating costs of 7 EUR per month and 42 EUR over half a year.
3.2 – Berlin-Brandenburg State Social Court, decision of 26 January 2011, – L 5 AS 2197/10 B ER –
3.3 – Berlin-Brandenburg State Social Court, decision of 21 February 2011, – L 5 AS 2430/10 –
In disputes concerning the waiver or deferral of court fees in specialized courts, recourse to the administrative courts is available (Higher Administrative Court of Berlin-Brandenburg, decision of 10 January 2011, OVG 1 S 1.11).
3.4 – Berlin-Brandenburg State Social Court, decision of 23 March 2011, – L 5 AS 2297/10 B PKH –
For the assessment of sufficient prospects of success within the meaning of Section 114 Sentence 1 of the German Code of Civil Procedure (ZPO), the decisive factor is the point in time when the case is ready for a decision. The point in time of the court's decision is irrelevant in this respect. Findings that come to light after the point in time when the case is ready for a decision and before the court's decision on the granting of legal aid are irrelevant for the decision on legal aid. The case is ready for a decision only when the complete application for legal aid, in the form prescribed by Section 117 Paragraph 1 of the ZPO, including the declaration of personal and financial circumstances required under Section 117 Paragraph 2 of the ZPO and the necessary supporting documents, has been received, and the court has given the opposing party reasonable time to comment in accordance with Section 118 Paragraph 1 Sentence 1 of the ZPO and, if necessary, given the parties the opportunity to substantiate their factual assertions in accordance with Section 118 Paragraph 2 of the ZPO (Bavarian State Social Court, Decision of March 19, 2009, L 7 AS 64/09 B PKH).
A declaratory judgment action is only admissible to the extent that the subject matter of the dispute was encompassed by the original claim for annulment and performance. Therefore, continuing the claim with the assertion that the rejection notice was unlawful is generally only possible if the relevant point in time for such a determination coincides with that of the claim for performance, since otherwise the declaratory judgment action would exceed the scope of an action for performance (Federal Administrative Court, judgment of May 16, 2007, 3 C 8/06; judgment of January 24, 1992, 7 C 24/91).
3.5 – Berlin-Brandenburg State Social Court, Judgment of March 24, 2011, – L 5 AS 1349/10 –
Hartz IV recipients are not entitled to a one-off grant of €500,000 and a corresponding increase in their standard benefits based on general human rights, in particular the general principle of equality, after the Federal Government supported economically distressed banks with substantial financial resources.
There is no legal basis in the German Social Code, Book II (SGB II) for granting €500,000 to compensate for social injustices.
To the extent that HB believes it can derive a claim from its status as a natural subject of international law because the Four-Power status continues unlawfully under international law and the Federal Republic of Germany lacks any legitimacy, this is already contradicted by the fact that this status was terminated by Article 7 of the Treaty on the Final Settlement with Respect to Germany of 12 September 1990 (Federal Law Gazette II p. 1317), so that Germany has regained full sovereignty over its internal and external affairs (Federal Constitutional Court, decision of 12 July 1991, 2 BvR 1463/90; decision of 18 October 1994, 2 BvR 611/91).
The right to bring an action under Section 54 Paragraph 1 Sentence 2 of the Social Court Act (SGG) is lacking if the plaintiff cannot be entitled to the asserted claim under any conceivable aspect (cf. Federal Social Court, Judgment of October 28, 2009, B 6 KA 42/08 R; Judgment of August 30, 2001, B 4 RA 114/00 R; Judgment of April 28, 1967, 3 RK 26/63).
Unreasonable costs for roof renovation are also not to be covered by a loan if the property was already acquired by HB with a damaged roof and a complete renovation was foreseeable at the time of purchase.
The possibility of granting a loan pursuant to Section 22 Paragraph 5 of the German Social Code, Book II (SGB II), is merely an ancillary measure to a legitimate desire, also with regard to further costs, to use and maintain the accommodation (see decision of the Higher Social Court of Saxony-Anhalt of December 22, 2010, L 2 AS 425/10 B ER).
Furthermore, granting a loan is not advisable because there is currently a significant backlog of maintenance work, which will necessitate further substantial repair or renovation costs. The costs for restoring the property cannot be considered reasonable if the property is in such poor condition that substantial repairs are to be expected in the future. This is because it is not the purpose of benefits under the German Social Code, Book II (SGB II), to provide funds for extensive renovation work on a property (Judgment of the Higher Social Court of Berlin-Brandenburg, L 29 AS 328/10; Decision of the Higher Social Court of North Rhine-Westphalia of August 30, 2007, L 9 B 136/07 AS ER).
3.7 – Berlin-Brandenburg State Social Court, decision of April 4, 2011, – L 10 AS 517/11 B ER –
Booking and undertaking a joint trip strongly suggests that a partnership exists within the meaning of the presumption rule, which refers to a relationship that is geared towards a certain exclusivity (fidelity) (cf. Spellbrink in Eicher/Spellbrink, SGB II, 2nd ed., § 7 para. 45).
However, it cannot be established with the required degree of probability that both live together within the meaning of Section 7 Paragraph 3a Alternative 1 of the German Social Code, Book II (SGB II), which presupposes the management of a joint household, which in turn requires the existence of a residential and economic community – the latter requiring the sharing of resources (cf. Brühl/Schoch in LPK-SGB II, 3rd edition, Section 7, marginal notes 84, 58; Bundestag printed matter 15/1516, p. 53).
3.8 – Berlin-Brandenburg State Social Court, Judgment of March 24, 2011, – L 5 AS 1547/09 –
The one-year period stipulated in Section 48 Paragraph 4 of the German Social Code, Book X (SGB X), in conjunction with Section 45 Paragraph 4 Sentence 2 of the SGB X, only begins to run when the revocation no longer requires any further investigation. Only then may the benefit recipient assume that the authority will not revise the legally flawed decision within one year. This is regularly the case only after the hearing of the affected party has been conducted in accordance with Section 24 of the SGB X (Federal Social Court, Judgment of July 27, 2000, B 7 AL 88/99 R; Judgment of November 28, 1996, 7 RAr 56/96; Judgment of February 8, 1996, 13 RJ 35/94; Federal Administrative Court, Judgment of July 18, 2006, 1 C 15/05; Judgment of September 20, 2001, 7 C 6/01).
The general principles set out in Section 338 of the German Social Code, Book III (SGB III) shall apply to interim calculations (Federal Social Court, judgment of March 19, 2008, B 11b AS 23/06 R).
The rounding rule of Section 41 Paragraph 2 of the German Social Code, Book II (SGB II) does not apply when it comes to benefits for accommodation and heating, for which, according to Section 22 Paragraph 1 Sentence 1 of the SGB II, the actual expenses are decisive.
There is no entitlement to the distribution of a one-off payment – holiday pay – over future periods if taking a one-off payment into account does not fully eliminate the need of the person in need and the obligation of the basic income support provider to provide benefits in the month of receipt (Judgment of 18 January 2011, B 4 AS 90/10 R; Judgment of 19 May 2009, B 8 SO 35/07 R-).
The monthly contribution of EUR 30.90 to the company pension scheme is deductible from income in accordance with Section 11 Paragraph 1 No. 3 of the German Social Code, Book II (BSG, Judgment of November 9, 2010, B 4 AS 7/10 R).
3.9 – Berlin-Brandenburg State Social Court, Judgment of March 24, 2011, – L 5 AS 365/08 –
If a court of first instance has ordered a party joined to provide benefits in principle, and that party has subsequently expressly acknowledged its jurisdiction, an appeal against this judgment lacks standing if its sole aim is to have the originally defendant party, instead of the joined party joined to provide benefits, ordered to provide the same benefits in principle.
The habitual residence within the meaning of Section 36 of the German Social Code, Book II (SGB II) is not decisive for the question of whether the costs for maintaining two households are deductible from income.
The amount of accommodation and heating expenses to be considered under Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), is to be assessed according to the actual housing needs (Federal Social Court, Judgment of June 17, 2010, B 14 AS 79/09 R). Whether a dual household is to be recognized depends on whether the person seeking assistance is employed outside the place where they maintain their own household and whether neither moving nor commuting daily is reasonable for them (Mecke in Eicher/Spellbrink, SGB II, 2nd edition 2008, Section 11, marginal note 118).
3.10 – Bavarian State Social Court decision of 09.03.2011, – L 7 AS 151/11 B ER –
According to Section 65a Paragraph 1 Sentence 1 of the Social Court Act (SGG), electronic documents may be submitted to the court insofar as this has been permitted by statutory order for the respective jurisdiction. No such statutory order exists in Bavaria. Therefore, no pleadings relevant to the proceedings may be submitted by email (Breitkreuz/Fichte, Social Court Act, 2009, Section 65a, marginal note 4). This applies to both appeals and applications for preliminary legal protection at first instance. Applications for preliminary relief at first instance are also only possible in electronic form under the conditions of Section 65a SGG (Meyer-Ladewig, Social Court Act, 9th edition 2008, Section 86b, marginal note 8b).
The appeal submitted by email is invalid for another reason. An email intended to be equivalent to a signed document must, according to Section 65a Paragraph 1 Sentences 3 and 4 of the Social Court Act (SGG), be provided with a qualified electronic signature or transmitted via another approved secure method. An appeal must be filed in writing according to Section 173 Sentence 1 of the SGG. This means that a document signed by hand must be submitted (cf. Section 126 Paragraph 1 of the German Civil Code (BGB) and Meyer-Ladewig, Social Court Act, 9th edition 2008, Section 173, marginal note 3). There is no provision that waives the signature requirement (as in Section 92 Paragraph 1 Sentence 3 of the SGG for actions: "The action shall be signed") for appeals. The email of February 17, 2011, however, did not have a qualified electronic signature.
3.11 – Bavarian State Social Court decision of 03.01.2011, – L 7 AS 921/10 B ER –
The applicant's brief, wordless appearance does not constitute fulfillment of the reporting obligation under Section 59 of the German Social Code, Book II (SGB II) in conjunction with Section 309 of the German Social Code, Book III (SGB III).
For employment promotion under Book III of the German Social Code (SGB III), it is sometimes argued that the person required to report is only obligated to appear in person (Niesel, SGB III, § 309 para. 18). This view is partially contradicted for basic income support for job seekers (Eicher/Spellbrink, SGB II, 2nd edition 2008, § 59 para. 13a). Such a passive understanding of the reporting obligation would defeat the purpose of a reporting appointment, and a mere passive appearance could lead to the complete withdrawal or denial of benefits under § 66 of Book I of the German Social Code (SGB I), while someone who fails to appear would only face a generally minor reduction in benefits. Furthermore, this passive understanding is incompatible with the strong principle of "demanding" in § 2 of Book II of the German Social Code (SGB II). The extent to which an active understanding of the reporting obligation leads to problems of demarcation (what activities constitute fulfilling the reporting obligation?) need not be decided here.
Simply appearing at the scheduled appointment without saying a word constitutes a complete refusal and is to be considered as a non-appearance.
3.12 – Hessian State Social Court decision of 17.03.2011, – L 7 AS 687/10 B ER –
Half of the proceeds from the sale of the inherited house property, valued at €103,500.00, are not to be considered as assets of the applicant.
Claims that the person in need of assistance has already assigned before the time of the application for benefits or the renewal of benefits do not belong to the assets of the person in need.
In the case of assignment pursuant to Section 389 of the German Civil Code (BGB), the new creditor takes the place of the old creditor, and the assigned claim is thus removed from the assets of the previous creditor (Palandt, BGB, 70th ed. 2011, Section 389, marginal note 2; Mecke in: Eicher/Spellbrink, 2nd ed. 2008, Section 12, marginal note 23; Brühl in LPK-SGB II, 3rd ed. 2009, Section 312, marginal note 9).
3.13 – North Rhine-Westphalia State Social Court decisions of 06.04.2011, – L 12 AS 74/11 B ER – and – L 12 AS 75/11 B –
The job center does not have to bear extrajudicial costs if it would have been reasonable for the applicant, before hiring a lawyer and initiating legal proceedings for preliminary legal protection, to assert the non-payment of ALG II by telephone or – if this was unsuccessful, as the applicant claims – in person.
It is generally considered equitable that the losing party bears the costs (Leitherer, in: Meyer-Ladewig/Keller/Leitherer, SGG, 9th ed. 2008, § 193 para. 12a with further references). However, all circumstances of the individual case must be taken into account, so that the outcome of the legal dispute alone is not sufficient. Thus, a decision on costs can also be made taking into account the so-called causation principle (cf. Leitherer, in: Meyer-Ladewig/Keller/Leitherer, ibid., § 193 para. 12b with further references)
A certificate of incapacity for work does not automatically prove that the applicant was also unable to appear in person before the respondent for health reasons. Incapacity for work is not in every case synonymous with an illness-related inability to attend a scheduled appointment (Federal Social Court, 09.11.2010 – B 4 AS 27/10 R – para. 32).
3.14 – North Rhine-Westphalia State Social Court, decision of 30 March 2011, – L 19 AS 230/11 B –
1. Granting of legal aid, because in the present case the special protection of the marriage of a German national resulting from Article 6 Paragraph 1 of the Basic Law (GG) could justify a deviation from the principle of equal shares per capita.
2. Granting of legal aid, whether the provision of Section 20 Paragraph 3 of the German Social Code, Book II (SGB II) regarding the reduced standard benefit of 90% applies when an adult in need of assistance lives with an adult partner in a household unit – in this case according to Section 7 Paragraph 3 No. 3a of the SGB II – but the partner – as in the present case – is excluded from benefits under the SGB II according to Section 7 Paragraph 1 Sentence 2 No. 1 of the SGB II.
Regarding point 1: Since the three-month exclusion of a foreign spouse from benefits under the German Social Code, Book II (SGB II), when moving to live with a German spouse, may jeopardize the continued existence of the shared residence, which is necessary for establishing and maintaining a cohabitation, due to rent arrears resulting from the benefit reduction, when applying the per capita principle.
Article 6, paragraph 1 of the Basic Law (GG) contains both a classic fundamental right to protection from state interference, an institutional guarantee, and a fundamental principle of value for all private and public law concerning marriage and family. It protects the interest of the German spouse to establish and continue their marriage as a life partnership of equal partners within the federal territory. Since, in principle, only the spouses themselves have the right to determine the spatial and social center of their shared life independently and free from state interference, the free decision of both spouses to live together within the federal territory deserves special state protection according to the jurisprudence of the Federal Constitutional Court if one of the spouses possesses German citizenship (see Federal Constitutional Court decision of July 18, 1979 – 1 BvR 650/77 = BVerfGE 51, 386).
2. Case law holds that the provision of Section 20 Paragraph 3 of the German Social Code, Book II (SGB II) only applies to households in which both partners are entitled to benefits under the SGB II, or where the partner excluded from the SGB II benefit system has a correspondingly equal entitlement to benefits from another benefit provider (see, in this regard, the judgment of the Higher Social Court of Hamburg of September 2, 2010 – L 5 AS 19/08 – with further references, appeal pending: – B 14 AS 171/10 R –; the judgment of the Higher Social Court of Berlin-Brandenburg of April 14, 2010 – L 10 AS 1228/09 –; contra: the judgment of the Higher Social Court of Berlin-Brandenburg of December 2, 2010 – L 20 AS 2022/09 – with further references)
3.15 – North Rhine-Westphalia State Social Court, decision of 30 March 2011, – L 19 AS 212/11 B ER –
If the applicant does not submit an application for the suspension of the effect of his objections – insofar as he has lodged them – or has filed lawsuits against these decisions with the Social Court, the immediate enforceability of these decisions precludes a provisional obligation of the Job Center to provide benefits.
In the absence of a decision by the Social Court on the provisional enforceability of these decisions, there is also no appealable first-instance decision in this respect, so that no ruling can be made on this matter in the pending appeal proceedings, because the appellate court is not the court of first instance competent to decide the main issue within the meaning of Section 86b of the Social Courts Act (SGG).
3.16 – North Rhine-Westphalia State Social Court decisions of 04.04.2011, – L 6 AS 406/11 B ER RG – and – L 6 AS 409/11 B RG –
If a violation of the right to be heard has occurred, a further requirement for the success of a complaint of violation of the right to be heard is that the challenged decision is based on a violation of Article 103 Paragraph 1 of the Basic Law. Such a violation can be assumed if it cannot be ruled out that a more favorable decision would have been reached had the violation not occurred (Federal Constitutional Court decision of October 3, 1961 – 2 BvR 4/60 – BVerfGE 13, 132; Higher Social Court of North Rhine-Westphalia decision of February 8, 2010 – L 19 B 381/09 AS ER RG; Leitherer in Meyer-Ladewig/Keller/Leitherer, SGG, 9th ed. 2008, § 178a Rn 5b with further references).
3.17 – Saxon State Social Court, decision of 22 March 2011, – L 7 AS 217/09 B ER –
The exclusion rule in Section 7 Paragraph 5 Sentence 1 of the German Social Code, Book II (SGB II) is based on the consideration that educational assistance under the Federal Training Assistance Act (BAföG) or assistance under Sections 60 to 62 of the German Social Code, Book III (SGB III) already covers the costs of living, and that basic income support under the SGB II is not intended to enable the pursuit of training that is, in principle, eligible for other forms of support by ensuring general subsistence.
The exclusion clause in the German Social Code, Book II (SGB II), is intended to prevent the subsidiary basic income support (cf. Section 3 Paragraph 3 SGB II) from enabling – hidden – educational assistance at a second level. The mere fact that the training is eligible for funding in principle triggers the legal consequence of Section 7 Paragraph 5 Sentence 1 SGB II. Individual reasons for refusal that have arisen in relation to the provider of the support benefit are disregarded in this context (Federal Social Court -BSG-, Judgment of August 19, 2010 – B 14 AS 24/09 R, Paragraph 15 with further references).
4. Decisions of the social courts on basic income support for job seekers (SGB II)
4.1 – Social Court Neuruppin Decision of 04.04.2011, – S 26 AS 316/11 ER –
As part of the obligation to cooperate, the recipient of benefits is generally not required to conduct investigations towards third parties.
He is not required to obtain any information. It follows that there is also no obligation to procure and submit evidence – such as documents – from a private third party. The applicant does not have the legal authority to demand proof of income and assets from the applicant or to compel the applicant to complete the relevant application forms (see Lower Saxony-Bremen State Social Court, decision of June 29, 2006 – L 9 AS 239/05 ER –).
Since the job center demanded something subjectively impossible from the applicant, a breach of the duty to cooperate within the meaning of Sections 60 Paragraph 1, 66 Paragraph 1 Sentence 1 of the German Social Code, Book I (SGB I) cannot be assumed from the outset (cf. Kampe: juris PK-SGB I, Section 65 Paragraph 18).
5. Decisions of the social courts on social assistance (SGB XII)
5.1 – Social Court Düsseldorf Judgment of 22.03.2011, – S 42 SO 70/09 –
However, this only applies to parents with joint custody. If only one parent has custody and represents the children to the social welfare office, the other parent cannot be held liable for reimbursement of costs – as in this case.
The wording of the provision explicitly refers to a representative – and not to a third party. It is precisely from the interplay of the regulations concerning the reimbursement of costs for unlawfully provided benefits – namely Section 104 Sentence 1 of the German Social Code, Book XII (SGB XII) and Section 103 Paragraph 1 Sentence 2 of the SGB XII – that it follows that Section 103 Paragraph 1 Sentence 2 of the SGB XII, which refers only to representatives authorized by law or contract, is narrower than the group of persons covered by Section 104 Sentence 1 of the SGB XII (cf. Weber, Reimbursement of Costs and Cost Compensation for Unlawfully or Wrongly Granted Social Assistance under the SGB XII, DVP 2010, 278, 279). This distinction between a representative in the sense of an exclusively contractual or statutory representative on the one hand, and a third party on the other, also appears appropriate with regard to the other prerequisites for reimbursement of costs pursuant to Section 103 Paragraph 1 Sentence 2 of the German Social Code, Book XII (SGB XII) or Section 104 Sentence 1 of the SGB XII: while the third party is only liable pursuant to Section 104 of the SGB XII if he has brought about the granting of assistance intentionally or through gross negligence, in the case of a representative – and only in the case of a representative who can act in a legally binding manner for the recipient of assistance – knowledge or grossly negligent ignorance of the illegality of the administrative act underlying the benefit is sufficient.
No integration assistance will be granted if there is no prospect, or at most only a slight prospect that does not establish an entitlement, that the task of the rehabilitation service integration assistance will be fulfilled specifically through the specialist service hours within the framework of supported living.
Because of the principle of subsidiarity in Section 2 Paragraph 1 of the German Social Code, Book XII (SGB XII), and the specific provision in Section 53 Paragraph 2 Sentence 2 of the SGB XII applicable in cases of imminent disability, it follows for social assistance law under the SGB XII that integration assistance is only granted if medical treatment is insufficient to achieve the identical goal of integration assistance. The integration assistance to be provided by social assistance providers is a rehabilitation service (cf. Section 6 Paragraph 1 No. 7 in conjunction with Section 5 Paragraph 1 No. 4 of the German Social Code, Book IX (SGB IX)).
6. Slides on the German Social Code, Book II (SGB II), prepared by Harald Thome, as of April 8, 2011
7. Collection of texts on securing one's livelihood. Here are a few more comments from Harald Thome on the subject.
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 slang term for a more direct, straightforward approach). 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
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
