1.1 – Federal Social Court (BSG) judgment of 18 January 2011 – B 4 AS 99/10 R –
A continuation application is required for the continued approval of unemployment benefit II
According to Section 37 Paragraph 1 of the German Social Code, Book II (SGB II), benefits are granted upon application and not retroactively to periods prior to the application (Section 37 Paragraph 2 Sentence 1 SGB II). The only legally stipulated exception to this rule applies if the eligibility requirements are met on a day when the responsible agency for benefits under the SGB II is closed. In this case, an application submitted without delay is retroactive to that day (Section 37 Paragraph 2 Sentence 2 SGB II). The application requirement applies not only to the initial request for benefits but also to continued payments
The wording of Section 37 of the German Social Code, Book II (SGB II) does not indicate a different treatment of initial and continued benefit applications. The provision generally refers to the requirement of submitting an application as a prerequisite for the commencement of benefits. The explanatory memorandum to the draft legislation emphasizes that the application for benefits has constitutive effect, meaning that benefits are only payable from the date of application (Bundestag printed matter 15/1516, p. 62). There is no indication that a distinction should be made between an initial request for benefits and an entitlement to continued payments.
If an application has procedural, in this case constitutive, significance, then the point in time at which benefits commence depends on the application. However, the application is also exhausted upon its decision. With the decision, the administration has acted – in accordance with the function of the application – and, from the moment of application, has examined whether the eligibility requirements for benefits are met, and has granted or denied benefits (see Federal Social Court judgment of October 28, 2010 – B 14 AS 56/08 R, SozR 4-4200 § 37 No. 1). For this reason alone, the application has not remained inactive in this respect
There is no entitlement to benefits based on a social security restitution claim if the basic income support provider has promptly pointed out the application requirement and sent a corresponding application before the end of the previous approval period.
Reinstatement to the previous status under Section 27 of the German Social Code, Book X (SGB X) is not to be granted, because Section 37 of the German Social Code, Book II (SGB II) does not set a deadline, but merely regulates the relationship between the commencement of benefits and the application. The application itself is not subject to a deadline, and the exclusion of benefits before the date of application does not constitute a substantive legal limitation period (see also Eicher in Eicher/Spellbrink, SGB II, 2nd edition 2008, Section 40, marginal note 106b).
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – State Social Court of Saxony-Anhalt, Judgment of March 3, 2011, – L 5 AS 181/07 –, Appeal allowed
In principle, street improvement charges are to be taken into account as actual costs incurred for housing needs, provided that the total housing costs are reasonable.
If – as in this case – the reasonable costs of accommodation are not exceeded by the ongoing housing cost benefits, an owner whose self-occupied house is considered protected assets is entitled to further housing cost benefits for one-off accommodation expenses, whether for maintenance or for unavoidable public charges, at least up to the reasonable limit (see the minutes of the oral hearing of the 14th Senate of the Federal Social Court of February 24, 2011, file number: B 14 AS 61/10 R).
The tax claim must be taken into account as the actual current need at the time it becomes due (see BSG, judgment of 23 March 2010, file no.: B 4 AS 62/09 R, para. 13, and judgment of 15 April 2008, file no.: B 14/7b AS 58/06 R).
2.2 – Lower Saxony-Bremen State Social Court, decision of 01.04.2011, – L 6 AS 761/10B –
Legal aid for legal action against exclusion from benefits pursuant to Section 7 Paragraph 1 Sentence 2 No. 1 SGB II also applies in cases of foreigners moving in with spouses.
Quote: “The question of whether the exclusion of benefits stipulated in Section 7 Paragraph 1 Sentence 2 No. 1 of the German Social Code, Book II (SGB II) also applies when foreigners move in with their spouses cannot be readily denied, particularly in light of the fundamental rights implications raised by the plaintiff, and the examination of the prospects of success pursuant to Section 114 Sentence 1 of the German Code of Civil Procedure (ZPO) must not lead to the transfer of the examination of this difficult, controversial and still unresolved legal question (decision of the Higher Social Court of North Rhine-Westphalia of December 7, 2009 – L 19 B 363/09 AS –, see also the decision of the 7th Senate of the Court of February 17, 2011 – L 7 AS 1323/10 B –) to the summary proceedings for legal aid.”.
Rather, the granting of legal aid is intended to enable even plaintiffs with limited legal experience to have a difficult and complex legal question clarified through legal proceedings (in a main action) (BVerfGE 81, 347/357 ff). In such a case, the prospects of success may not be denied
Note: See also the decision of the Higher Social Court of North Rhine-Westphalia of December 7, 2009 – L 19 B 363/09 AS –
It is disputed whether the exclusion of benefits under Section 7 Paragraph 1 Sentence 2 No. 1 of the German Social Code, Book II (SGB II) is compatible with EU law in light of the case law of the European Court of Justice (see, for the state of opinion, the decision of the Lower Saxony-Bremen Higher Social Court of 29 September 2009 – L 15 AS 905/09 B ER with further references to case law and literature).
Family members who enter Germany to join a foreign national who has a longer-term right of residence are not covered by this exclusion from benefits (Brühl/Schoch in LPK-SGB II, 3rd edition, § 7 para. 31).
2.3 – North Rhine-Westphalia State Social Court, decision of 20 April 2011, – L 6 AS 473/11 B ER –
The actual structure of their shared life, including permanent cohabitation in a shared household after even moving in together and the applicant also providing care for the child, provides sufficient evidence to assume a community of responsibility and mutual support, even according to the jurisprudence of the Federal Constitutional Court (see Federal Constitutional Court judgment of 17 November 1992 – 1 BvL 8/87 Rn 95 – BVerfGE 87, 234).
Insofar as the applicant argues that the term "partnership" presupposes "exclusivity," it is already questionable whether this criterion can be considered a necessary prerequisite for the assumption of a community of need pursuant to Section 7 Paragraph 3 of the German Social Code, Book II (SGB II). The wording of the law does not provide for such a restriction. Rather, Section 7 Paragraph 3 No. 3c SGB II defines "partner" of the employable benefit recipient as a person who lives with them in a shared household in such a way that, upon reasonable assessment, a mutual intention to assume responsibility for one another can be assumed. Insofar as Section 7 Paragraph 3a SGB II repeats the term "partner" in its presumption rules, this must be considered a legislative oversight and understood to mean "persons." If two persons are already considered partners according to the definition in Section 7 Paragraph 3 No. 3c SGB II because of a mutual intention to support one another, a presumption rule for when such an intention exists is no longer necessary.
The presumption rule of Section 7 Paragraph 3a of the German Social Code, Book II (SGB II) would thus be rendered ineffective. Whether a restrictive interpretation of the term "partner," including the criterion of exclusivity, can be derived from the legislative materials is questionable, but this point need not be decided here. The applicant has not presented any reasons indicating that he or she currently maintains another similar relationship in addition to the one they already have. The mere absence of sexual relations, which the applicant apparently uses to define a "partnership" within the meaning of Section 7 Paragraph 3 of the SGB II, does not preclude the assumption of a cohabiting partnership (cf. Federal Constitutional Court – loc. cit., para. 109).
2.4 – North Rhine-Westphalia State Social Court, decision of 20 April 2011, – L 6 AS 227/11 B ER –
There is a general principle that no one may use the courts unnecessarily or unfairly, or exploit a legally provided procedure to pursue objectives that are contrary to its intended purpose and therefore not worthy of protection (Keller in Meyer-Ladewig/Keller/Leitherer, SGG, 9th ed. 2008, before § 51 para. 16).
As long as he has not exhausted all reasonable means of achieving the desired goal without involving the court, there is no need for judicial intervention (cf. decisions of the adjudicating Senate of 19.04.2011 – L 6 AS 399/11 B ER and of 31.03.2011 – L 6 B 86/09 AS with further references).
2.5 – Saxon State Social Court decision of 30 March 2011, – L 7 AS 793/10 B PKH –
The need for legal advice cannot always be denied in a constitutionally compliant manner by referring to a parallel proceeding, since the very question of whether a parallel case exists can justify the need for advice for those without legal expertise (cf. Federal Constitutional Court, decision not to accept the appeal of 02.09.2010 – 1 BvR 1974/08, para. 16).
Whether legal representation is necessary or whether the person seeking legal assistance can reasonably be expected to help themselves must be weighed by the court, taking into account the specific circumstances of the individual case. In particular, it depends on whether the underlying facts raise difficult factual or legal questions and whether the person seeking legal assistance possesses special legal knowledge (cf. Federal Constitutional Court, decision not to accept the appeal of 2 September 2010, loc. cit., para. 14). The Federal Constitutional Court (e.g., decision of May 11, 2009 – 1 BvR 11517/08, para. 31) expressly abandoned its previous case law on granting legal aid for preliminary proceedings after the introduction of Section 63 of Book Ten of the Social Code (SGB X), pointing out that the legislature had long since introduced legal aid for lower courts, proceeding on the assumption (see Bundestag printed matter 8/3068, pp. 22 et seq.) that social law is a specialized field that poses difficulties not only for parties lacking legal knowledge but also for trained lawyers. Whether a financially secure litigant reasonably exercises their right to legal representation depends on the circumstances of the individual case. A cost-conscious litigant will, in particular, consider the extent to which they need external assistance to effectively exercise their procedural rights or are capable of doing so themselves.
3.1 – Social Court Karlsruhe Judgment of 31.03.2011, – S 4 AS 2626/09 –
Lactose intolerance does not justify the granting of additional needs allowances for costly diets according to § 21 para. 5 SGB II
Probiotic food supplements are no longer considered to be covered by social assistance within the meaning of Section 21 Paragraph 5 of the German Social Code, Book II (SGB II)
The entitlement to additional needs according to § 21 para. 5 SGB II, which is part of the necessary subsistence minimum, requires that the person in need of assistance requires a special diet due to an illness or disability and that this diet is actually more expensive than that of a healthy or non-disabled person.
The cost comparison refers to the amount for food and beverages recognized in the care allowance. The recognition of additional needs is conceptually only possible in relation to this standard allowance.
How the additional needs are specifically composed and what additional costs they cause is a question of fact (cf. Saxony State Social Court, decision of February 13, 2009, L 3 B 428/08 AS – NZW), which is primarily to be answered by nutritional science on the basis of nutritional medical findings and taking into account the price development for the required foodstuffs.
Note: See also an article by social law expert Attorney Ludwig Zimmermann in the Nomos specialist forum for livelihood security
Reference should be made here to the decision of the Federal Social Court (BSG) of February 25, 2011, – B 14 AS 49/10 R. This decision concerned an allergy to parabens, a commonly used preservative in food. The lower courts had rejected the additional needs allowance because the person in need could have avoided the substance by carefully reading the package insert. The BSG rejected this precedent and remanded the case for a new decision. Lactose intolerance is also a condition whose onset can be managed by carefully reading the package insert.
4. Decisions of the State Social Courts on Social Assistance (SGB XII)
4.1 – Baden-Württemberg State Social Court, Judgment of 02.03.2011, – L 2 SO 4920/09 –
Claims for additional electricity costs for electric heating must be considered as a current need at the time they become due - § 29 para. 1 sentence 3 SGB XII - but not spread over longer periods (Federal Social Court, judgment of 15 April 2008, B 14/7b AS 68/06 R).
When electricity consumption is recorded with only one meter, an estimate can be made to differentiate between electricity costs covered by the standard allowance (household electricity) and electricity costs as accommodation costs (heating costs) (following BSG judgment of 20.8.2009 – B 14 AS 41/08 R -; LSG Baden-Württemberg judgment of 23.10.2009 – L 12 AS 4179/08 -).
4.2 – Baden-Württemberg State Social Court, Judgment of 30 March 2011, – L 2 SO 1196/10 –
The provision of provisional services – integration assistance during a stay in a facility – within the framework of the transfer of responsibilities under Section 12 of the Baden-Württemberg Welfare Act (Welfare Assistance Act) in cases of dispute regarding the locally responsible city or district, is also to be resolved via the reimbursement provisions of Sections 102 et seq. of the German Social Code, Book X (SGB X), even if the beneficiary does not have their habitual residence there. These provisions are not precluded by the more specific regulation of Section 106 Paragraph 1 Sentence 2 of the German Social Code, Book XII (SGB XII), because its factual prerequisites are not met in such cases.
5. Ralf Hess: Malnutrition in children from families receiving Hartz IV benefits
Selection at the kitchen table. According to findings from the University of Hohenheim in Stuttgart, children can only be inadequately nourished with current Hartz IV welfare payments. The health consequences, as well as the social ones, are considerable.
6. Visitation costs under the new legal situation
Especially for employable individuals receiving basic income support under the German Social Code, Book II (SGB II) (ALG II recipients), maintaining contact with children living far away can be a costly matter. The much-discussed amendment to the SGB II (Federal Law Gazette I 2011, 453 – for the explanatory memorandum: Bundestag Printed Paper 17/3404), which largely came into force on January 1st or April 2011, also brought positive changes in this area:
The following costs will be reimbursed by the job center responsible for the person entitled to visitation rights – after prior application:
• Costs for exercising visitation rights, Section 21 Paragraph 6 SGB II (see point 1) and
• Children's living expenses during visitation time without requiring the consent of the other parent (see point 2).
In contrast, the additional needs for single parents according to § 21 para. 3 SGB II cannot, in principle, be claimed by the parent entitled to visitation rights (see point 3).
Note: North Rhine-Westphalia State Social Court judgment of 20 January 2011, – L 7 AS 119/08 –, appeal allowed, published in the case law ticker of Tacheles week 13/2011.
An entitlement to benefits based on a temporary community of need also exists if the claimant (minor child) has already received benefits (social assistance) as a member of another community of need, but the mother of the child has not paid him the pro rata social assistance for the time in which the child stayed with his father.
HB cannot be referred to asserting his needs against his mother through legal proceedings. Such a referral appears unsuitable because, according to Section 33 Paragraph 2 Sentence 1 of the German Social Code, Book II (SGB II), a potential maintenance claim of the recipient of benefits for securing subsistence under civil law does not transfer to the provider of benefits under the SGB II if the person entitled to maintenance lives in a household with the person obligated to pay. In this respect, the principle of self-help under Section 2 of the SGB II is superseded by the specific provision of Section 33 of the SGB II (Münder in LPK-SGB II, 3rd edition, 2009, Section 33, marginal note 34).
The claimant, as part of the household with his father, is entitled to social assistance amounting to 1/30 of the relevant standard rate.
The appeal was admitted because there is no supreme court decision yet on the question of whether an entitlement to benefits based on a temporary community of need can also exist if the claimant has already received benefits as a member of another community of need for the period in dispute.
7. Lutz Hausstein, Empirical analysis of the level of a social minimum income based on regional price data, March 2011
8. 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, and the text was 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 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)
What the first readers say about the collection of texts, with commentary by Harald Thome:
9. 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.
Note: The second edition of the handbook "The Hartz IV Mandate" will be published shortly. It includes the legal changes and the latest case law from 2010 and 2011.
Ludwig Zimmermann, The Hartz IV Mandate, 2nd edition Baden-Baden 2011
The book still costs only 44 EUR incl. VAT and can also be purchased together with the book "Die neue Grundsicherung" by Groth, Luik and Siebel-Huffmann at the favorable package price of 59 EUR.
Reviews of the previous edition: "This work will be helpful not only for lawyers but also for other legal advisors specializing in SGB II (German Social Code, Book II)."
Attorney Birgit Scheibe, Sozialrecht aktuell 6/10
"This very informative book has every chance of becoming the standard legal handbook on 'Hartz IV' issues. It can be recommended to every lawyer and legal advisor, as well as to those caring for people receiving benefits, and also to employees of benefit-providing agencies."
Horst Marburger, RV 12/10
"The Hartz IV Mandate is an absolutely excellent work that can be recommended to all professional groups dealing with the subject of Hartz IV."
Attorney Jens Jenau, Social Law + Practice 9/10
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
