1.1 – North Rhine-Westphalia State Social Court, Judgment of 25 January 2011, – L 6 AS 413/10 –, Appeal allowed
HB's request to benefit from the insurance allowance even if she does not actually receive any income in the form of maintenance payments finds no support in the overall legislative regulations.
There is no apparent intention on the part of the legislature to generally increase the benefits of those receiving assistance by adding a lump sum for insurance payments. Rather, this lump sum was expressly (merely) provided as a deduction factor when considering income (see also Federal Social Court, judgment of December 21, 2009, B 14 AS 42/08 R, para. 28 in BSGE 105, 201 et seq.). If, however, the legislature intended to establish regulations only regarding deductions when income is earned, then there is no unintended gap in the law if such deductions do not apply when no income is earned.
There is no constitutionally guaranteed right to specific tax deductions for specific needs (BSG, judgment of 18.06.2008, B 14 AS 55/07 R Rn 44 in SGb 2009, 548).
If a provision is to be applied analogously, this requires an inherent gap in the law in the sense of an unintended incompleteness of the legal regulations that contradicts the meaning and purpose as well as the intentions of the legislator (cf. Federal Constitutional Court, decision of 28 July 2010, 1 BvR 2133/08 para. 8; decision of 3 April 1990, 1 BvR 1186/89 para. 23 in BVerfGE 82, 6 ff; Federal Social Court, judgment of 25 February 2010, B 10 LW 1/09 R in Breithaupt 2010, 952 ff.). Whether an unintended gap exists within the regulatory context of a law – in the sense of a lack of legal provisions where they are expected for specific situations – is determined based on the legal provision itself, the underlying regulatory intentions, the pursued purposes and values, also measured against the standard of the entire legal system (BSG, Judgment of 18.01.2011, B 4 AS 108/10 R Rn 24).
1.2 – North Rhine-Westphalia State Social Court, decision of 06.04.2011, – L 19 AS 546/11 B –
Income from the subsequent fulfillment of employment law claims is subject to the same crediting rules within the German Social Code, Book II (SGB II) as severance payments, insofar as neither constitutes a privileged component of income within the meaning of Section 11 Paragraph 3 No. 1a SGB II (e.g., judgment of the Federal Social Court of 18 February 2010 – B 14 AS 86/08 R – with further references).
The distribution of the credit over twelve months completely eliminates the plaintiff's entitlement to benefits under the German Social Code, Book II (SGB II), which, according to the case law of the Federal Social Court (BSG) on the so-called "distribution period" (e.g., judgments of September 30, 2008 – B 4 AS 57/07 R –, of May 7, 2009 – B 4 AS 14/08 R –), could be problematic from the perspective that the plaintiff's health insurance coverage would also cease entirely with the complete elimination of the entitlement to benefits under the SGB II.
A distribution of benefits while preserving a legal entitlement under the German Social Code, Book II (SGB II), was not necessary because the plaintiff was granted unemployment benefit I (ALG 1) for the period, thus ensuring health insurance coverage.
Complaints based on inaction are generally considered inadmissible because there is no statutory basis for them (see, among others, the decision of the European Court of Human Rights, Grand Chamber, of 8 June 2006 – 75529/01 –; the Federal Social Court's decision of 19 January 2010 – B 11 AL 13/09 C –; the decisions of the Higher Social Court of North Rhine-Westphalia of 30 January 2008 – L 19 B 16/08 AS ER –, of 4 March 2010 – L 6 AS 304/10 B ER –, of 29 March 2010 – L 20 AS 324/10 B – and of 6 December 2010 – L 19 AS 1995/10 B ER; the decision of the Higher Social Court of Berlin-Brandenburg of 30 June 2010 – L 13 SB 49/10 B –; left open). in the decision of the Bavarian State Social Court of 28.04.2010 – L 1 R 132/10 B -).
According to the jurisprudence of the Federal Constitutional Court, it is constitutionally required that legal remedies be regulated in the written legal order and that their prerequisites be readily apparent to citizens. It therefore violates the constitutional requirements for clarity of legal remedies if the courts create extraordinary legal remedies outside of written law in order to close actual or perceived gaps in the existing system of legal protection (Plenary Decision of the Federal Constitutional Court of April 30, 2003 – 1 PBvU 1/02 –; Chamber Decision of the Federal Constitutional Court of January 16, 2007 – 1 BvR 2803/06).
It has been definitively established by the highest court that the provision of Section 7 Paragraph 4a of the German Social Code, Book II (SGB II) does not constitute the establishment of positive eligibility requirements, but rather an exclusion of benefits (see Federal Social Court judgment of October 19, 2010 – B 14 AS 50/10 R, paragraph 19).
However, it cannot be inferred from this that the exclusion of benefits does not apply if the person in need of assistance leaves the area of local and local proximity without prior contact with the defendant, but it is subsequently determined that consent would have been given had prior contact been made, i.e., before the trip. According to the clear wording of Section 7 Paragraph 4a of the German Social Code, Book II (SGB II), anyone who, without the consent of their personal contact person, is outside the area of local and local proximity defined in the accessibility order of October 23, 1997, is not entitled to benefits under the SGB II.
According to the unanimous opinion in case law (LSG Bavaria, judgment of October 28, 2010 – L 8 AS 215/10 –; LSG Baden-Württemberg, judgment of July 14, 2010 – L 3 AS 3552/09 –) and legal literature (cf. Spellbrink in Eicher/Spellbrink, SGB II, 2nd ed., § 7 para. 88), the entitlement to benefits generally lapses if the person in need of assistance is absent from their local area without authorization, i.e., without the prior consent of their personal contact person. A complete suspension of benefits for the period of absence pursuant to § 40 SGB II in conjunction with §§ 330 SGB III, 48 para. 1 sentence 2 no. 2 SGB X is therefore possible if a person in need of assistance leaves their local area without notifying the benefit provider beforehand.
The incorrectness of a decision in an individual case does not constitute a divergence within the meaning of Section 144 Paragraph 2 No. 2 of the Social Court Act (SGG) (cf. Federal Social Court decision of October 5, 2010 – B 8 SO 61/10 B, Rn 11 with further references to case law on the identically worded Section 160 Paragraph 2 No. 2 of the Social Court Act (SGG)).
1.5 – North Rhine-Westphalia State Social Court, decision of 15 April 2011, – L 19 AS 495/11 B ER –
The provision of Section 22 Paragraph 2a of the German Social Code, Book II (SGB II aF), is not applicable to persons who, at the time of moving out of their parents' household, were not members of a benefit unit and were receiving benefits (Federal Social Court (BSG) judgment of December 15, 2010 – B 14 AS 23/09 R, para. 16; Higher Social Court (LSG) of Saxony, decision of July 14, 2010 – L 7 AS 175/10 B ER; Higher Social Court (LSG) of Saxony-Anhalt, decision of June 3, 2010 – L 5 AS 155/10 B ER; Higher Social Court (LSG) of Lower Saxony-Bremen, decision of November 6, 2007 – L 7 AS 626/07 ER; Higher Social Court (LSG) of Mecklenburg-Western Pomerania, judgment of May 21, 2008 – L 10 AS 72/07; Higher Social Court (LSG) of Saxony, judgment of July 2, 2009 – L 3 AS 128/08) and literature (Berlit in LPK-SGB II, 3rd ed., § 22 para. 90; Lang/Link in Eicher/Spellbrink, SGB II, 2nd ed.; § 22 para. 80b ff).
For the interpretation of the term "serious social reasons," the provisions of Section 64 Paragraph 1 Sentence 2 No. 4 of the German Social Code, Book III (SGB III), as well as the maintenance law provision of Section 1612 Paragraph 2 of the German Civil Code (BGB), can be consulted (Lang/Link in Eicher/Spellbrink, SGB II, Section 22, marginal note 80p). According to established case law on maintenance law, cramped living conditions and a lack of separate space for an adult child (cf. Higher Regional Court of Düsseldorf, decision of February 22, 1993 – 3 Wx 520/92 = FamRZ 1994, 460) constitute grounds that adult children are not required to accept in-kind support in the form of being taken into a parent's household.
1.6 – North Rhine-Westphalia State Social Court decisions of 18 April 2011, – L 6 AS 122/11 B ER – and – L 6 AS 123/11 B –
1.7 – North Rhine-Westphalia State Social Court, decision of 19 April 2011, – L 6 AS 399/11 B ER –
The application for provisional granting of basic income support benefits for job seekers under the German Social Code, Book II (SGB II), pursuant to Section 86b Paragraph 2 Sentence 2 of the Social Courts Act (SGG), lacks a legitimate interest in legal protection.
The applicant does not require judicial assistance to obtain the SGB II benefits he seeks. As long as he has not exhausted all reasonable means of achieving his desired goal without involving the court, there is no need for judicial intervention (see the decision of the adjudicating Senate of 31 March 2011 – L 6 B 86/09 AS with further references).
When the approval period expires, a new application is required (BSG judgment of 18.02.2011 – B 4 AS 29/10 R; judgment of 18.02.2011 – B 4 AS 99/10 R).
1.8 – North Rhine-Westphalia State Social Court, decision of 11 April 2011, – L 6 AS 458/11 B –
Complaints against the revocation of legal aid are not covered by the wording of Section 172 Paragraph 2 Sentence 3 of the Social Court Act (SGG).
An expansive interpretation or analogous application of the provision is not justified. According to the legislative materials, neither an unintended gap in the law nor are there comparable factual situations. The revocation of previously granted legal aid goes beyond the rejection of an application for legal aid, as it deprives the applicant of a legal position already acquired (LSG NRW, decision of August 26, 2010 – L 6 AS 1300/10 B; see also LSG Rheinland-Pfalz, decision of January 14, 2010 – L 1 AL 137/09 B; LSG Baden-Württemberg, decision of October 1, 2009 – L 11 R 898/09 PKH; LSG Rheinland-Pfalz, decision of June 16, 2008 – L 5 B 163/08 AS).
Missing information and evidence regarding personal and economic circumstances can also be submitted subsequently during the appeal proceedings, as Section 120 Paragraph 4 Sentence 2 of the German Code of Civil Procedure (ZPO) does not provide for a deadline for submitting the required party declaration (Thuringian Higher Social Court decision of August 4, 2008 – L 6 B 191/07 SF; Baden-Württemberg Higher Social Court – L 11 R 898/09 PKH-B).
1.9 – North Rhine-Westphalia State Social Court, decision of 31 March 2011, – L 6 B 86/09 AS –
A prerequisite for the need for legal protection within the framework of an application pursuant to Section 86b Paragraph 1 Sentence 1 No. 2 of the Social Court Act (SGG) is not that an applicant must first contact the benefit provider to obtain a decision on the suspension of immediate enforcement pursuant to Section 86a Paragraph 3 Sentence 1 of the SGG (see Higher Social Court of North Rhine-Westphalia, decision of November 23, 2009 – L 19 B 262/09 AS with further references).
In preliminary legal protection proceedings, 100 percent of the standard benefit is generally to be granted.
Only in exceptional circumstances can a person in need of assistance be denied the right to seek legal protection to secure their livelihood. This is the case when judicial intervention is unnecessary because the person in need has not first exhausted all reasonable means of achieving their desired goal without involving the courts (see the decision of the adjudicating panel of judges of January 11, 2011 – L 6 AS 1602/10 B; LSG NRW – decision of July 29, 2009 – L 19 B 158/09 AS – para. 6 with further references). In particular, contacting the responsible administrative or benefit provider is required when applying for benefits for the first time.
It is not possible to establish a general legal principle that urgency is automatically excluded simply because a certain percentage of the standard benefit rate is available (see also LSG NRW decision of 19.11.2008 – L 19 B 178/08 AS – Rn 8; LSG NRW decision of 10.09.2009 – L 7 B 269/09 AS ER – Rn 4; cf. also LSG NRW decision of 16.10.2008 – L 7 B 289/08 AS ER – Rn 6).
In preliminary injunction proceedings, 100 percent of the standard benefit is generally awarded (see, e.g., Higher Social Court of North Rhine-Westphalia, decision of November 19, 2008 – L 19 B 178/08 AS – juris para. 7; decision of September 10, 2009 – L 7 B 269/09 AS ER – juris para. 4; decision of July 8, 2009 – L 7 B 188/09 AS ER – juris para. 6 with further references; decision of October 16, 2008 – L 7 B 289/08 AS ER – juris para. 6; Higher Social Court of Lower Saxony-Bremen, decision of February 13, 2008 – L 13 AS 237/07 ER – juris para. 43; Higher Social Court of North Rhine-Westphalia, decision of May 2, 2007 – L 20 B 310/06 AS ER). – juris para. 21; Decision of 29 September 2006 – L 9 B 87/06 AS ER – juris para. 27; contra with a reduction of 20% or less: LSG Berlin-Brandenburg Decision of 19 May 2010 – L 5 AS 797/10 B ER – juris para. 3; LSG Baden-Württemberg Decision of 29 January 2007 – L 7 SO 5672/06 ER-B – juris para. 6; LSG Saxony-Anhalt Decision of 30 March 2009 – L 5 B 121/08 AS ER – juris para. 27; with a reduction of up to 30%: LSG Berlin-Brandenburg Decision of 9 September 2010 – L 10 AS 1023/10 B ER – juris para. 20; LSG Bavaria Decision of 24.06.2010 – L 7 AS 322/10 B ER – juris Rn 21; LSG Berlin-Brandenburg decision of 02.02.2006 – L 14 B 1157/05 AS ER – juris Rn 10).
Basic income support benefits under the German Social Code, Book II (SGB II), are designed with such a limited scope due to their lump-sum payment and the principle of covering basic needs that, given the typically long duration of main proceedings, it is unreasonable to grant only a regularly reduced benefit rate over this extended period (see also Lower Saxony-Bremen Higher Social Court, decision of February 13, 2008 – L 13 AS 237/07 ER – juris para. 43). Since a person's basic needs can only be met at the moment they arise (the so-called principle of immediacy), the impairment caused by a (general) benefit reduction could not be subsequently remedied (Federal Constitutional Court, decision of May 12, 2005 – 1 BvR 569/05, para. 19). This does not preclude, in justified individual cases, granting benefits only with a reduction as part of the balancing of interests – however, this does not affect the fundamental existence of the grounds for the order (see also LSG NRW decision of 19 November 2008 – L 19 B 178/08 AS – juris Rn 7, 8 with reference to BVerfG decision of 12 May 2005 – 1 BvR 569/05 Rn 26; cf. also LSG NRW decision of 10 September 2009 – L 7 B 269/09 AS ER – juris Rn 4; decision of 29 September 2005 – L 9 B 49/05 AS ER – juris Rn 11).
1.10 – North Rhine-Westphalia State Social Court, decision of 14 April 2011, – L 6 AS 1595/10 B ER –
The exclusion of entitlement under Section 7 Paragraph 5 of the German Social Code, Book II (SGB II) covers the additional needs regulated in Section 21 Paragraph 4 of the SGB II, because this is an additional benefit due to training (Lang/Knickrehm in Eicher/Spellbrink, SGB II, 2nd edition 2008, Section 21, marginal note 40; Münder in LPK-SGB II, 3rd edition 2009, Section 21, marginal note 19).
Granting benefits in the form of a loan based on hardship pursuant to Section 7 Paragraph 5 Sentence 2 of the German Social Code, Book II (SGB II) is also not an option. According to the case law of the Federal Social Court, a hardship case can be assumed if a need for assistance has arisen due to an educational situation that cannot be covered by BAföG (Federal Training Assistance Act) and there is therefore reasonable cause to believe that the training, which is nearing completion, must be discontinued (see Federal Social Court judgment of July 1, 2009 – B 4 AS 67/08 R, paragraph 19 – SGb 2009, 536).
1.11 – North Rhine-Westphalia State Social Court decisions of 04.04.2011, – L 6 AS 2060/10 B ER – and – L 6 AS 2061/10 B ER –
Such a binding effect precludes the award of benefits in the main proceedings and, consequently, even more so in the preliminary injunction proceedings, because no more can be obtained in the preliminary injunction proceedings than in the main proceedings (see decision of the adjudicating Senate of 27 September 2010 – L 6 AS 1099/10 ER; decision of 16 September 2010 – L 6 AS 949/10 B ER; similarly, LSG NRW – decision of 12 March 2009 – L 19 B 45/09 AS ER; decision of 9 July 2009 – L 7 B 132/09 AS ER; Keller in Meyer-Ladewig/Keller/Leitherer, SGG, 9th ed. 2008, § 86b para. 26 d).
The possibility of accessing so-called account master data via the Federal Central Tax Office pursuant to Section 93 Paragraph 8 of the German Fiscal Code proves the existence of accounts and their assignment to an account holder. Account balances and transactions, however, are not transmitted. If the applicant – obviously – has an account, the submission of bank statements can be required to prove their need for assistance (see Federal Social Court judgment of September 19, 2008 – B 14 AS 45/07 R, paragraphs 13 et seq. – BSGE 101, 260). The applicant is seeking state welfare benefits under Book II of the German Social Code (SGB II), which are granted to them without any obligation on their part and solely on the basis of their need for assistance, in accordance with the conditions of Sections 9 and 7 of Book II of the German Social Code (SGB II). The state is entitled to protect itself from the possibility of granting basic income support to individuals who are not in need but possess undisclosed or unreported assets. The requirement to submit bank statements for the account at T-bank is a comparatively minor intrusion in relation to this protective purpose (see also BSG, aaO, Rn 26).
If, contrary to the prima facie evidence generated by the information provided by the Federal Central Tax Office, such an account does not exist – as claimed by the applicant – he must submit a negative certificate from the bank.
1.12 – Bavarian State Social Court Judgment of 26 January 2011, – L 16 AS 526/09 –
According to the case law of the Federal Social Court (BSG), living space up to 90 square meters is protected for single property owners (BSG – of 07.11.2006, BSGE 97, 203 ff. on owner-occupied residential property).
1.13 – Baden-Württemberg State Social Court, Judgment of March 25, 2011, – L 12 AS 910/10 – Appeal allowed
No overlapping benefit units under SGB II
The provision of Section 7 Paragraph 3 Number 2 of the German Social Code, Book II (SGB II) is to be interpreted restrictively if the unmarried, employable child under 25 years of age lives in a benefit unit with their own child or partner. In this case, the parents or parent of this child are not included in their benefit unit (no overlapping benefit units).
Provisional benefits pursuant to Section 43 Paragraph 1 of the German Social Code, Book I (SGB I) can no longer be provided if the actually responsible agency has already definitively rejected the provision of the benefits.
1.14 – Baden-Württemberg State Social Court, Judgment of March 25, 2011, – L 12 AS 2404/08 –
Expenses for electricity required to operate a heating system are included in the costs of accommodation and heating according to Section 22 Paragraph 1 Sentence 1 SGB II.
If the electricity consumption of the heating system is not separately recorded by a meter, it can be estimated (§§ 202 SGG, 287 para. 2 ZPO). Based on principles of tenancy law regarding heating cost accounting in a rental agreement, and using relevant empirical data, it can be assumed that the operating electricity costs for the heating system amount to (at most) 5% of the fuel costs.
1.15 – Baden-Württemberg State Social Court, Judgment of 13 April 2011, – L 3 AS 332/10 –
Refusal to conclude an integration agreement does not justify a reduction in benefits under Section 31 of the German Social Code, Book II (SGB II).
All state action is subject to the principle of proportionality. Every legal system must prevent excessive infringements on citizens' legal rights that are not justified by more important public interests. The principle of proportionality is derived from the rule of law and arises from the very nature of fundamental rights themselves, which, as an expression of the general right to freedom of the citizen vis-à-vis the state and public authorities, may be restricted to the extent that this is essential for the protection of public interests (see Federal Constitutional Court, decision of December 15, 1987 – 1 BvR 563/85, 582/85, 974/86 – and – 1 BvL 3/86 – published in juris). The elements of the principle of proportionality consist of three requirements against which state measures must be measured: suitability, necessity, and proportionality in the narrower sense, as well as a preliminary examination of the legitimate purpose of the measure. The conclusion of an integration agreement is required so that the employable person in need of assistance can actively participate in overcoming their unemployment within the scope of their abilities and what is reasonable for them, and so that the most effective and individualized support possible can be provided through cooperation with the social welfare agency. Such a purpose is readily compatible with the legal system.
A similar conclusion can be drawn regarding the requirement of suitability, also considering that the refusal to conclude an integration agreement is subject to sanctions. The sanctions stipulated in Section 31 Paragraph 1 Sentence 1 No. 1a of the German Social Code, Book II (SGB II), can promote the desired outcome, as the threat of sanctions for non-compliance will encourage many people in need of assistance to agree to such an agreement, thereby bringing them closer to the goal of providing meaningful assistance and eliminating unemployment. However, imposing a sanction in this case violates the principle of necessity. According to this principle, no measure may exceed what is necessary to achieve its purpose. This principle is violated if the objective of the state measure can be achieved by another, equally effective means that does not restrict the relevant fundamental right or restricts it to a significantly lesser extent. In the event of a refusal to conclude an integration agreement, Section 15 Paragraph 1 Sentence 6 of the German Social Code, Book II (SGB II) allows the basic income support provider to establish the relevant regulations by means of an administrative act. In view of this possibility, the basic income support provider's insistence on the conclusion of an agreement as defined in Section 15 Paragraph 1 Sentence 1 of the SGB II is disproportionate, because it can achieve the same legal consequence—the legally binding establishment of obligations for the employable person in need of assistance—by a less intrusive means, namely the issuance of an administrative act.
The Senate is also supported in this by the fact that the legislature, with the Act on the Determination of Standard Needs and the Amendment of the Second and Twelfth Books of the Social Code of March 24, 2011 (Federal Law Gazette I, p. 453), deleted the provision of Section 31 Paragraph 1 Sentence 1 No. 1a of the Second Book of the Social Code (SGB II). According to the draft bill submitted by the CDU/CSU and FDP parliamentary groups, this was done expressly with reference to the fact that the option of issuing an administrative act provides the basic income support agencies with a less intrusive means of regulating binding obligations for the employable benefit recipient (Bundestag Printed Matter 17/3404, p. 111).
2. Decisions of the social courts on basic income support for job seekers (SGB II)
2.1 – Social Court Neuruppin Judgment of 12.04.2011, – S 17 AS 334/10 –
The far-reaching consequences of sanctions law in the area of subsistence benefits mean that the standards applied to the agreement of obligations are just as strict as those applied to the instruction regarding the consequences of potential breaches of these obligations. In this respect, merely designating a measure within the context of the benefit provider's consent to its implementation is insufficient without an agreement on a corresponding obligation for the benefit recipient.
A legally binding agreement to participate in a program cannot be assumed simply because the recipient of benefits obviously believed they were obligated to attend. A tacit obligation to participate through attendance at the program is precluded if the recipient's conduct does not convey a sufficiently clear and binding agreement.
2.2 – Social Court Neuruppin Judgment of 12.04.2011, – S 17 AS 627/07 –
The cancellation of benefits for a member of a household receiving benefits, as a global cancellation encompassing all cancellations affecting the household as a whole, is no longer merely a monetary error but a fundamentally different matter. Therefore, a reduction to the extent applicable to the individual receiving the cancellation is not possible (following the ruling of the Berlin-Brandenburg State Social Court, judgment of May 7, 2009 – L 28 AS 1354/08).
According to Section 33 Paragraph 1 of the German Social Code, Book X (SGB X), an administrative act must be sufficiently specific in its content, particularly with regard to the addressee and the operative provisions. This is an expression of the rule of law principle derived from Article 20 Paragraph 3 of the German Basic Law (GG), which serves legal certainty and clarity. For an administrative decision to be sufficiently specific, it must be formulated so unambiguously that it is clear, without further inquiry, for whom, what, and how it is regulated. Accordingly, the subject matter, objective, and regulatory content of the decision must be so clear and complete for the addressee that they can align their actions accordingly and fully assess the legal consequences of the decision (Higher Social Court of Berlin-Brandenburg, Decision of October 10, 2008 – L 25 B 1646/07 AS PKH – para. 7). Whether sufficiently specific operative provisions exist must be determined through interpretation. The standard for interpreting the administrative act is the view of a reasonable recipient who, as a party involved, takes into account the context which the authority, according to its true intention, has included in its decision, whereby ambiguities are to the detriment of the authority (cf. BSG, judgment of 14.08.1996 – 13 RJ 9/95 – para. 38 with further references).
Furthermore, there are fundamental concerns about allowing a blanket cancellation of benefits in the sense of a reduction that preserves the validity of the benefit claim to the extent that is mathematically and materially correct with regard to the addressee(s). This would give the authorities the power to inadvertently include the correct amount as a "minus" by canceling benefits in a way that is invariably too high. The complex legal construct of the benefit unit, with its allocation of individual claims based on benefits and income, precludes, in the Senate's opinion, the conclusion that a materially correct individual cancellation with respect to the addressee is substantively correct based on a potentially correct total amount. Global cancellations of benefits, even against a member of the household receiving benefits, without specific provisions regarding the respective benefit relationship, must be cancelled in their entirety due to a lack of specificity, and not only in their excess portion – affecting the other members (contra: Schleswig-Holstein Higher Social Court, judgment of November 13, 2008 – L 6 AS 16/07 – para. 27; similarly, Baden-Württemberg Higher Social Court, judgment of November 18, 2007 – L7 SO 2899/06 – para. 19)
2.3 – Bremen Social Court decision of 14 April 2011, – S 23 AS 357/11 ER –
Since the entry into force of Section 28 Paragraph 5 of the German Social Code, Book II (retroactive to January 1, 2011), the provision of remedial instruction (tutoring) no longer requires that an atypical situation exists (unlike the old legal situation: decision of the Chamber of May 11, 2010 – S 23 AS 409/10 ER).
The funding now only requires that it is suitable and additionally necessary to achieve the essential learning objectives defined by school regulations.
Introduction
“Children are not small adults.” With this statement, the Federal Constitutional Court (BVerfG) succinctly summarized its admonition in its decision on standard benefits under Book II of the German Social Code (SGB II), emphasizing the need to give greater consideration to the age-specific needs of children and young people when calculating subsistence-level benefits (BVerfG, Judgment of February 9, 2010 – 1 BvL 1/09, 3/09, 4/09 – BVerfGE 125, 175 para. 191). The Act on the Determination of Standard Benefit Rates and the Amendment of Book II and Book XII of the German Social Code (SGB II and SGB XII) of March 24, 2011 (Federal Law Gazette I 2011, 453) is based on these principles. This applies not only to the standard benefits for children and young people (see Section 8 para. 1 nos. 4 to 6 of the Act on the Determination of Standard Benefit Rates). The "benefits for education and participation" in the German Social Code, Book II (SGB II), Book XII (SGB XII), and the Federal Child Benefit Act (BKGG) have created a new type of benefit to provide targeted support for children and young people at risk of poverty. These regulations came into effect retroactively to January 1, 2011 (Article 14, Paragraph 1 of the Law on Determining Standard Needs and Amending the German Social Code, Book II (SGB II) and Book XII (SGB XII)).
II. Basic income support for job seekers
1. Entitlement to benefits
Benefits for education and participation are provided in addition to unemployment benefit II/social assistance. The entitlement to these benefits is regulated in Section 19 Paragraph 2 of the German Social Code, Book II (SGB II), and the specific needs are regulated in Section 28 SGB II. Benefits for education and participation, with the exception of personal school supplies, must be applied for separately (Section 37 Paragraph 1 Sentence 2 SGB II). Unlike the previous system, for example, the additional school allowance (Section 24a SGB II, old version), these benefits are not only provided in addition to existing benefit entitlements. Needs for education and participation increase the overall needs of the benefit recipient and can trigger the need for assistance, especially since income and assets are only considered last when calculating these needs (Section 19 Paragraph 3 Sentence 3 SGB II). The purposefulness of the benefits is expressed in Section 29 Paragraph 4 SGB II: If, in a justified individual case, proof of the appropriate use of the benefit is not provided, the approval decision is generally to be revoked. This was not possible under § 24a SGB II aF (see Groth/Leopold, info also 2009, 59, 62).
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