1.1 – Federal Social Court (BSG) judgment of 15 December 2010, – B 14 AS 61/09 R-
The revocation of grant notices pursuant to Section 44 Paragraph 1 of the German Social Code, Book X (SGB X), which deducted flat-rate allowances for hot water preparation from the heating costs pursuant to Section 22 of the German Social Code, Book II (SGB II) in an unlawful amount, is not excluded pursuant to Section 40 Paragraph 1 Sentence 2 Number 1 of the German Social Code, Book II (SGB II) in conjunction with Section 330 Paragraph 1 of the German Social Code, Book III (SGB III), even for the period before the decision of the Federal Social Court (BSG) of February 27, 2008 – B 14/11b AS 15/07 R.
Section 330 Paragraph 1 of the German Social Code, Book III (SGB III) does not apply because, with regard to the deduction of the costs of hot water preparation, there was a lack of uniform administrative practice among the municipal benefit providers until the establishment of the consistent case law of the Federal Social Court (BSG) (see also BSG, judgment of 1 June 2010 – B 4 AS 78/09 R –, SozR 4-4200 § 22 No. 36).
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – Berlin-Brandenburg State Social Court, decision of April 29, 2011, – L 5 AS 525/11 B ER –
A withdrawal notice pursuant to Section 66 Paragraph 1 of the German Social Code, Book I (SGB I) cannot be based on the fact that the person concerned has not provided proof of having applied for BAföG benefits.
In accordance with Section 5 Paragraph 3 of the German Social Code, Book II (SGB II), the benefit provider may counteract a violation by the person seeking assistance of their obligation under Section 12a SGB II to apply for other social benefits, insofar as this is necessary to avoid, eliminate, shorten or reduce the need for assistance, by submitting the application on behalf of the person seeking assistance.
Part-time vocational training is not eligible for funding in principle within the meaning of Section 7 Paragraph 5 of the German Social Code, Book II (SGB II).
2.2 – Berlin-Brandenburg State Social Court, decision of 6 April 2011, – L 5 AS 397/10 B PKH –
For the assessment of the sufficient prospect 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 timing of the court's decision is therefore irrelevant. Findings that come to light after the case is ready for a decision and before the court's decision on granting legal aid are immaterial to the legal aid decision. A 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 German Code of Civil Procedure (ZPO), including the declaration of personal and financial circumstances required under Section 117 Paragraph 2 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 ZPO and, if necessary, given the parties the opportunity to substantiate their factual assertions in accordance with Section 118 Paragraph 2 ZPO (Bavarian State Social Court, Decision of March 19, 2009, L 7 AS 64/09 B PKH).
The granting of legal aid cannot be challenged on the grounds that the claim only has a minor prospect of success (here EUR 0.01), provided that the total amount in dispute is not a trivial sum.
2.3 – Berlin-Brandenburg State Social Court, decision of April 5, 2011, – L 5 AS 57/11 B ER –
Based on the comprehensive self-help obligations of the person seeking assistance under Section 2 of the German Social Code, Book II (SGB II), according to which all possibilities for ending or reducing the need for assistance – in particular through the use of one's labor – must be exhausted, it is to be expected of an employable person seeking assistance, within the framework of preliminary legal protection, that he makes a particular effort to find work and proves these efforts.
The person seeking assistance is obligated to pursue their job search to the extent warranted by the stated urgency. If they fail to do so, or do so insufficiently, it is generally assumed that their request for preliminary legal protection lacks the necessary urgent need for a ruling. In such cases, the person seeking assistance generally does not require preliminary legal protection, as they are capable of helping themselves.
2.4 – Berlin-Brandenburg State Social Court, decision of April 8, 2011, – L 5 AS 2149/10 B PKH –
The distinction made by Section 40 Paragraph 2 Sentence 2 of the German Social Code, Book II (SGB II) between partial and full revocations does not violate the general principle of equality under Article 3 Paragraph 1 of the German Basic Law (GG).
The general principle of equality, which mandates equal treatment of essentially similar situations, imposes different limits on the legislature depending on the subject matter and differentiating characteristics. These limits range from a mere prohibition of arbitrariness to a strict adherence to the requirements of proportionality. Article 3 Paragraph 1 of the Basic Law is violated if no reasonable, inherent, or otherwise objectively plausible reason can be found for the statutory differentiation (Federal Constitutional Court, decision of September 24, 2007, 2 BvR 1673/03, 2 BvR 2267/03, 2 BvR 1046/04, 2 BvR 584/07, 2 BvR 585/07, 2 BvR 586/07). The Federal Constitutional Court has recognized in its jurisprudence that, for practical reasons, standardized and generalized regulations may be necessary when regulating mass phenomena. Any resulting hardships and injustices must be accepted if the disadvantage affects only a small number of people and the violation of the principle of equality is not very severe. However, if the economic consequences of such a regulation are disproportionate to the advantages associated with the standardization, it does not meet the standard of Article 3 Paragraph 1 of the Basic Law (decision of May 2, 2006, 1 BvR 1275/97).
The distinction made by Section 40 Paragraph 2 Sentence 2 of the German Social Code, Book II (SGB II) between a complete and a partial revocation is based on objective grounds. The starting point was the introduction of basic income support for jobseekers and the reform of social assistance. Recipients of these transfer payments were excluded from receiving housing benefit to avoid the need for two agencies – namely the social assistance agency and the housing benefit agency – to be involved in the approval of accommodation costs. According to the explanatory memorandum to the law, the provision in Section 40 Paragraph 2 Sentence 2 of the SGB II, which originally only covered the cases in Section 45 Paragraph 2 Sentence 3 of the German Social Code, Book X (SGB X), was intended to take into account that, following a decision by the Federal Constitutional Court of November 14, 1969 (1 BvL 4/69), the exclusion of social assistance recipients from receiving housing benefit was incompatible with Article 3 Paragraph 1 of the Basic Law (GG) under the legal framework at that time. The exclusion of recipients of unemployment benefit II and social assistance from housing benefit should therefore not have a legally or practically detrimental effect on those affected. The legislator assumed that housing benefit is generally not subject to repayment. Those affected should be placed in the same position as if they had received housing benefit by partially exempting them from repayment of the transfer payments. According to the explanatory memorandum to the law, the 56 percent rate is based on the actual subsidy rate of the special rent subsidy, derived from the empirical data in the 2001 housing benefit statistics. The average subsidy rate is calculated by dividing the average housing benefit entitlement by the average eligible rent (Bundestag printed matter 15/1516, pp. 48f., 63). The inclusion of partial revocations in the regulation of Section 40 Paragraph 2 Sentence 2 of the German Social Code, Book II (SGB II) was based on the same rationale. The regulation is a consequence of the elimination of housing benefit for recipients of benefits under the German Social Code, Book II (SGB II). As compensation, the portion of accommodation costs that corresponded on average to the housing benefit for former social assistance recipients should not have to be reimbursed (Bundestag printed matter 16/688, p. 6).
The distinction between partial and full revocations is therefore fundamentally justified by the fact that an entitlement to housing benefit would only have existed if no benefits under the German Social Code, Book II (SGB II) had been granted. Those who remain entitled to benefits under SGB II as a result of a partial revocation must not be treated as if they had received housing benefit, since they are entitled to retain a portion of their housing and heating allowance anyway. Insofar as the legislator's standardized calculation of the remaining housing cost allowance after a full revocation and recovery of benefits may, in individual cases, lead to unequal outcomes compared to those whose entitlement is only partially revoked—namely, when more than 44 percent of the considered housing costs are repaid—these inequalities must be accepted in accordance with the jurisprudence of the Federal Constitutional Court.
2.5 – North Rhine-Westphalia State Social Court, Judgment of April 6, 2011, – L 12 AS 42/07 –, Appeal allowed
The question of assessing the appropriateness of the living space in a single-family house with a rented granny flat has not yet been definitively settled by the highest court (see also the pending appeal proceedings BSG – B 4 AS 179/10 R -).
When considering the total living space (167 sq m), the 50 sq m self-contained apartment, which is rented out, must also be included. Therefore, it is irrelevant whether an "isolated" sale or marketing of the self-contained apartment is possible and reasonable. This is immaterial. The obligation to make use of the property relates to the entire house and grounds, which at 167 sq m are considered unreasonably large, and not just to the self-contained apartment. Accordingly, the applicants cannot argue, in connection with Section 12 Paragraph 3 No. 4 of the German Social Code, Book II (SGB II), that they have already fulfilled their obligations in this regard by renting out the self-contained apartment.
Whether a property can be divided if it is of a certain size is not a question of the appropriateness of the size of the property (§ 12 para. 3 sentence 1 no. 4 SGB II), but rather a question to be considered when assessing the marketability of an inappropriate property as a form of possible use (LSG NRW 01.06.2010 – L 6 AS 15/09 – para. 27, referring to BSG 15.04.2008 – SozR 4-4200 § 12 no. 10 – para. 29 regarding property size; see also BSG 19.05.2009 – B 8 SO 7/08 R – SozR 4-5910 § 88 no. 3 – para. 18 regarding the consideration of the total living space of a two-family house with regard to its appropriateness).
++ Note: North Rhine-Westphalia State Social Court judgment of April 16, 2009, – L 6 AS 15/09 –, pending before the Federal Social Court under file number: – B 4 AS 179/10 R-
No entitlement to benefits under SGB II if a family of four owns a usable 193 sqm house plot and does not sell it.
Is a self-occupied residential property, whose total living space, including a rented granny flat, significantly exceeds the appropriate size as defined in Section 12 Paragraph 3 Sentence 1 Number 4 of the German Social Code, Book II (SGB II), to be considered as an asset or realizable if the sale results in a loss of value of approximately 32% over a marketing period of 6 months and approximately 28% over a marketing period of 9 months, relative to the construction costs?
2.6 – North Rhine-Westphalia State Social Court, Judgment of 24 February 2011, – L 7 AS 1487/10 –
No reimbursement of non-prescription medication (here eye drops) according to §§ 21 para. 6, 23 SGB II and § 73 SGB XII.
Section 23 of the German Social Code, Book II (SGB II) is not applicable as a legal basis for a claim because recurring needs are not amenable to a loan-based provision (Federal Social Court, judgment of 19 August 2010 – B 14 AS 13/10 R, para. 14 with further references)
Taking into account a need of €22.89 for eye drops for a period of at least eight months, thus €2.86 per month, the de minimis threshold is not exceeded, because the Federal Social Court (BSG) considered the de minimis threshold to be exceeded when regular monthly costs amounted to €20.45 (BSG, Judgment of August 19, 2010 – B 14 AS 13/10 R, para. 20). There are also considerations to set the threshold at 10% of the standard benefit (Düring in Gagel, Commentary on the German Social Code, Book II, § 21, para. 47).
The hardship clause only applies to needs that arise after or extend into 09.02.2010 (LSG NRW, judgment of 28.04.2010 – L 12 AS 34/09).
2.7 – North Rhine-Westphalia State Social Court, decision of 2 May 2011, – L 19 AS 436/11 NZB –
Payment by the husband within the framework of so-called real splitting to offset increased tax obligations is a one-off income of the HB, whereby the tax amount to be paid by the applicant cannot be considered earmarked within the meaning of Section 11 Paragraph 3 SGB II and therefore may not remain exempt from being counted towards benefits.
The jurisprudence of the Federal Social Court has sufficiently clarified the conditions under which income is to be considered earmarked within the meaning of Section 11 Paragraph 3 No. 1a of the German Social Code, Book II (SGB II). According to this jurisprudence, the purpose of this provision is to prevent the specific purpose of a benefit from being undermined by its consideration within the framework of the SGB II, and also to prevent duplicate benefits from being provided for the same purpose (Federal Social Court judgment of December 6, 2007 – B 14/7b AS 62/06 R, para. 24). The earmarked purpose can arise from a public law provision, but earmarked income based on private law can also fall under this provision (Federal Social Court judgment of March 3, 2009 – B 4 AS 39/08 R = SozR 4-4200 § 11 No. 24 para. 20 with further references). A benefit provided on a private-law basis is considered earmarked within the meaning of Section 11 Paragraph 3 No. 1a of the German Social Code, Book II (SGB II), if, beyond the repayment designation, a specific purpose is recognizably assigned to it in the sense of an agreement from which it is objectively evident that the benefit is to be used for a particular purpose – private-law purpose of use – (Federal Social Court [BSG], loc. cit., para. 21). In the present case, no circumstances are apparent that would prevent the present facts from being subsumed under this conceptual definition and would necessitate a renewed examination of this legal question by the Federal Social Court. The mere fact that the Federal Social Court has not yet addressed the specific constellation of equalization payments resulting from so-called real splitting does not justify the assumption of fundamental importance.
2.8 – The North Rhine-Westphalia State Social Court ruled in its judgment of 23 February 2011, – L 12 SO 485/10 –
Lower court: Social Court Detmold, judgment of 01.06.2010, – S 2 SO 74/10-, Higher Social Court of North Rhine-Westphalia L 12 SO 321/10 NZB, appeal against the refusal of leave to appeal filed on 28.06.2010, published in the case law ticker of Tacheles 29/2010.
Reducing the standard benefit rate for social assistance recipients due to hospital meals is unlawful if the social assistance provider has not conducted individual investigations into which expenses were actually saved by the hospital stay (cf. Federal Social Court, judgment of 11.12.2007, B 8/9b SO 21/06 R)
The Higher Social Court of North Rhine-Westphalia, in its judgment of 23 February 2011, – L 12 SO 485/10 – upheld the appeal and referred the legal dispute back to the Social Court pursuant to Section 159 Paragraph 1 No. 3 of the Social Courts Act (SGG) in order to prevent the parties from being deprived of any instance.
Quote: "The needs of those seeking assistance are met according to Section 28 Paragraph 1 Sentence 1 based on standard rates. In January 2010, this standard rate was €359.00 per month for a single person. According to Section 28 Paragraph 1 Sentence 2 of the German Social Code, Book XII (SGB XII), needs are determined differently if, in an individual case, a need is fully or partially covered by other means. This could be the case here. Whether this is the case and to what extent will have to be determined by the Social Court.".
The Senate considers it conceivable that, in the case of a hospital stay of a full calendar month, savings of up to the amount included in the standard allowance for food are possible. This could be the amount of EUR 125.65 calculated by the defendant
++ Note: I cannot follow the reasoning behind the decision of the LSG NRW, i.e., I cannot agree with it, because there is no income offset and no deviation from the standard allowance due to free lunch in the hospital.
According to Section 28 Paragraph 1 Sentence 2 of the German Social Code, Book XII (SGB XII), needs are determined differently if, in an individual case, a need is fully or partially covered by another service. These conditions are not met here, as such a different determination is only permissible if the need is covered by another benefit under the SGB XII. This is not the case with hospital meals, as these are generally a benefit under the German Social Code, Book V (SGB V).
I would like to hear your opinions on this fascinating topic.
++ Note: See also an article by social law expert Attorney Ludwig Zimmermann in the Nomos specialist forum for securing livelihoods
Willi 2 always digs up the best decisions. My sincerest thanks for this excellent ruling as well. Willi 2's keen intuition is also evident in the fact that we had already discussed the Detmold Social Court's decision in the forum and can now move on to the interesting legal question.
In my opinion, the ruling does not sufficiently discuss what type of benefit hospital meals constitute. Is it considered income or another form of covering needs, and how are these two forms of "reduction" to be distinguished? The State Social Court seems to assume that income provided in kind can also directly lead to a reduction in the standard benefit rate.
The starting point is the regulation of § 28 para. 1 sentence 2 SGB XII, which has two alternative factual circumstances:
1. if, in a specific case, a need is wholly or partially covered by other means or
2. if it unavoidably deviates significantly from an average need.
Only the first option is relevant here (cf. BSG, 11.12.2007 – B 8/9b SO 21/06 R para. 18). Any income can reduce the need. Social assistance benefits are not considered income (§ 82 para. 1 SGB XII). Therefore, the reduction of the need in the sense of alternative coverage can only mean that the alternative coverage of the need must be a social assistance benefit (in my opinion, correctly stated by BSG, ibid., para. 19).
The Higher Social Court should have addressed this case law and examined whether the hospital stay and/or the subsequent stay in a rehabilitation facility was covered by social assistance or by health and pension insurance.
If it was medical or disability assistance, alternative means of covering the needs must be considered; otherwise, it may be considered income from which deductions must be made.
If income is involved, the question arises as to whether this income can be taken into account. This is regulated in the German Social Code, Book XII (SGB XII), specifically in Section 82 and Section 2 of the implementing regulations for Section 82 SGB XII. These regulations refer to the crediting of benefits in kind within an employment relationship (Section 17, Paragraph 2 of the German Social Code, Book IV (SGB IV)). The value of these benefits in kind far exceeds the portion of food costs calculated according to the Standard Needs Assessment Act.
For recipients of benefits under the German Social Code, Book II (SGB II), meals provided outside of an employment relationship are not taken into account. For reasons of equal treatment, meals for recipients of benefits under the German Social Code, Book XII (SGB XII), are only taken into account if they are provided within the framework of social assistance. If the recipient is accommodated in a hospital or rehabilitation facility paid for by another social security provider, no deduction is made due to the lack of a sufficient legal basis for such deduction (Federal Social Court, 23 March 2010 – B 8 SO 17/09 R).
I would like to go even further here and also not make a deduction from the standard allowance in the case where the hospital stay is not at the expense of health or pension insurance, but is provided by social assistance within the framework of medical aid or integration assistance, because there is no difference between these cases that could justify unequal treatment.
The Social Court of Detmold, which is now dealing with the matter again, can from this point of view save itself the further investigations, but should, unlike in the first decision, allow the appeal or direct appeal on points of law if the services were provided within the framework of medical and/or integration assistance.
Regarding the reduction of needs in connection with the costs of accommodation according to the German Social Code, Book II (SGB II), I have addressed this in detail in question no. 31 in the book "Hartz IV 100 Questions and Answers", Baden-Baden 2001.
2.9 – North Rhine-Westphalia State Social Court, Judgment of 06.04.2011, – L 12 AS 1337/10 –
The application requirement pursuant to Section 37 Paragraph 1 of the German Social Code, Book II (SGB II) cannot be waived if continued payment is requested directly following a previous benefit period (Federal Social Court judgments of January 18, 2011, -B 4 AS 99/10 R- and -B 4 AS 29/10 R-).
The application under the German Social Code, Book II (SGB II) has constitutive effect, and unlike in social assistance law (§ 18 SGB XII), the benefit provider's knowledge of the need for assistance does not trigger an entitlement. Likewise, reinstatement to the previous status under § 27 SGB X is not possible, as the provision of § 37 SGB II does not stipulate a statutory time limit.
2.10 – North Rhine-Westphalia State Social Court, decision of 28 April 2011, – L 7 AS 493/11 B –
Securities holdings are considered assets (Federal Social Court [BSG], judgment of August 30, 2010 – B 4 AS 70/09 R, paras. 14, 27). The sale of an asset at fair market value does not generate income for the person receiving assistance, but rather assets, as the proceeds replace the asset being liquidated and do not result in any increase in value for the person receiving assistance. (Federal Social Court [BSG], judgment of June 20, 1978 – 7 RAr 47/77, paras. 30 ff.; Social Court [SG] Berlin, decision of December 14, 2009 – S 128 AS 38212/09 ER, para. 22; Mecke in Eicher/Spellbrink, Commentary on the German Social Code, Book II [SGB II], 2nd edition 2008, § 11, para. 21).
2.11 – North Rhine-Westphalia State Social Court decisions of 02.05.2011, – L 19 AS 344/11 B ER – and – L 19 AS 345/11 B –
The applicant cannot claim that the respondent did not hold any negotiations/discussions with him regarding the content of the intended integration agreement.
Section 15 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), which stipulates that the Federal Employment Agency, in agreement with the local authority, should conclude an integration agreement with each employable person in need of assistance, outlining the services required for their integration, at most provides a non-binding guideline on how the basic income support provider should implement this regulation procedurally, without corresponding to a subjective public right of the employable benefit recipient (Federal Social Court judgment of 22 September 2009 – B 4 AS 13/09 R –, para. 24).
The applicant is also not entitled to have his specific training and career aspirations taken into account. As follows from Section 10 Paragraph 1 of the German Social Code, Book II (SGB II), recipients of benefits are generally expected to accept any work necessary to overcome their unemployment, regardless of their educational and vocational qualifications (Federal Social Court judgment of December 15, 2010 – B 14 AS 92/09 R –, para. 22).
The respondent had also assumed sufficient obligations through the integration administrative act. Section 15 of the German Social Code, Book II (SGB II) does not define the nature of these obligations. It is irrelevant whether simply repeating the wording of the law regarding funding opportunities or merely listing possible benefits is sufficient in this respect (contrary to Berlit in LPK-SGB II, 3rd ed., § 15 para. 24 with further references), because the respondent had committed to specific obligations. Among other things, the respondent pledged to transfer the applicant's profile to www.arbeitsagentur.de and to support the applicant's job search activities by covering reasonable, documented costs for written applications. In particular, the promise of reimbursement of application costs significantly clarifies the applicant's entitlements, because the costs of job searching are generally to be borne by the benefit recipient himself (Berlit aaO § 2 Rn. 23) and the reimbursement of corresponding expenses is at the discretion of the benefit provider (§ 16 para. 1 SGB II in conjunction with § 45 sentence 2 no. 1 SGB III).
2.12 – North Rhine-Westphalia State Social Court, decision of April 28, 2011, – L 19 AS 633/11 B ER RG –
According to Section 178a Paragraph 1 Sentence 1 of the Social Court Act (SGG), proceedings must be continued upon the objection of a party adversely affected by a court decision if no appeal or other legal remedy against the decision is available (No. 1) and the court has violated that party's right to be heard in a manner material to the decision (No. 2). According to Section 178a Paragraph 2 Sentence 5 of the SGG, the objection must, among other things, demonstrate the existence of the prerequisites mentioned in Paragraph 1 Sentence 1 No. 2. This is lacking.
The objection to the hearing is not intended to supplement submissions subsequently, and there is no entitlement to have the submissions of the appellant taken up by the court in his favor and used as the basis for the decision (cf. BSG decision of 03.12.2007 – B 12 KR 3/07 C).
2.13 – North Rhine-Westphalia State Social Court, Judgment of April 6, 2011, – L 12 (20) AS 34/09 –, Appeal allowed
Inheritance is considered income when receiving ALG II (unemployment benefit II).
2.14 – State Social Court of Saxony-Anhalt, decision of 25 March 2011, – L 5 AS 427/10 B ER –
Electricity costs for operating the heating system are considered accommodation costs (BSG decision of May 26, 2010, B 4 AS 7/10 B).
2.15 – State Social Court of Saxony-Anhalt, decision of 16 March 2011, – L 5 AS 450/10 B –
No entitlement to a loan under Section 23 Paragraph 1 DGB II for the purchase of the entire house.
The fact that, according to Section 12 Paragraph 3 Sentence 1 No. 4 of the German Social Code, Book II (SGB II), a reasonable, owner-occupied house is not to be considered an asset does not lead to a different result. The legislative assessment that an asset does not have to be used to cover living expenses cannot be interpreted conversely to mean that the associated expenses must be taken into account on the needs side (Federal Social Court, Judgment of June 1, 2010, B 4 AS 63/09 R).
2.16 – Lower Saxony-Bremen State Social Court, decision of December 6, 2010, – L 15 AS 377/10 B ER –
Even 3-year advanced training courses are to be supported by the Federal Employment Agency (see decision of the Hessian State Social Court of 28.04.2009 – L 7 AL 118/08 B ER).
The unanimous jurisprudence of the social courts should be followed, according to which neither the wording nor the historical development of the norm implies a restriction to institutionally secured financing by the educational institution, so that financing of the third year of training may also be provided by the participant himself if the financing is already secured at the beginning of the measure (cf. Hessian State Social Court, loc. cit., para. 47 et seq. with detailed reasoning; see also, among others, Saxon State Social Court, judgment of 19 June 2008 – L 3 AS 39/07 –, para. 31 et seq.; Social Court Dresden, decision of 22 September 2009 – S 34 AS 2910/09 ER –, para. 30).
2.17 – Lower Saxony-Bremen State Social Court, Judgment of November 24, 2010, – L 15 AS 364/09 –, Appeal allowed
The provision of Section 20 Paragraph 3 of the German Social Code, Book II (SGB II), according to which two adult partners in a household receive a standard benefit amounting to 90% of the standard benefit for single persons (EUR 316.00), must be interpreted in a manner consistent with the constitution to mean that this standard rate does not apply to a household in which one partner receives unemployment benefit II and the other partner only receives benefits under the Asylum Seekers' Benefits Act (AsylbLG) (see also the decision of the Higher Social Court of Berlin-Brandenburg of May 3, 2007 – L 18 B 472/07 AS ER; the decision of the Social Court of Hamburg of April 24, 2008 – S 56 AS 796/08 ER; Brühl/Schoch in: LPK-SGB II, 3rd edition 2009, Section 7, marginal note 38; Hohm, AsylbLG, as of July 2010, Section 1, marginal note 131).
2.18 – Lower Saxony-Bremen State Social Court, decision of March 11, 2011, – L 13 AS 52/11 B ER –
No exclusion from benefits pursuant to Section 7 Paragraph 1 Sentence 2 No. 2 SGB II applies if the applicant entered Germany as a family member within the framework of family reunification with her husband who is legally residing in Germany.
Therefore, her right of residence in the Federal Republic of Germany is not derived solely from Section 2 Paragraph 2 No. 1 (job search) of the Freedom of Movement Act/EU, but also – at least after the extension of her right of residence has now taken place – from her right under Article 6 of the Basic Law to live in marital union with her husband who is legally residing in Germany.
If the job search is not the sole reason for the applicant's right of residence in Germany as an EU citizen seeking assistance and who must also be considered capable of working according to Section 8 of the German Social Code, Book II (SGB II), this already precludes the exclusion from benefits under Section 7 Paragraph 1 Sentence 2 No. 2 of the SGB II (Lower Saxony-Bremen Higher Social Court, Decision of September 14, 2006, L 6 AS 376/06 ER, and Decision of January 14, 2008 – L 8 SO 88/07 ER, FEVS 59, 369 = InfAuslR 2008, 227 = NVwZ-RR 2008, 621, para. 34; Peters, in: Estelmann, SGB II, as of December 2010, para. 10 on Section 7; Adolph, in: Linhart/Adolph, SGB II). II/SGB XII/AsylbLG, as of January 2011, para. 44 on § 7; A. Loose, in: Hohm, GK-SGB II, as of December 2010, para. 32.11 on § 7; Brühl/Schoch, in: Münder, LPK-SGB II, 3rd ed. 2009, para. 34 on § 7).
2.19 – Lower Saxony-Bremen State Social Court, decision of March 28, 2011, – L 13 AS 82/11 B ER –
There is no need for the job center to issue a cost-reduction request regarding heating costs with an explanatory and warning function stating that the complete heating of this living space is inappropriate from a basic income support perspective when a family of four lives in a living space of 470 (!) square meters.
In contrast, a prior formal request from the provider to reduce costs is not a mandatory prerequisite for the provider's decision to cover only the reasonable costs. This is clearly not the legislator's intention. Requests to reduce costs from providers only become relevant within the context of the assessment of reasonableness, serving as information to the person in need of assistance with an explanatory and warning function (Federal Social Court, Judgment of March 19, 2008 – B 11b AS 41/06 R – para. 20).
2.20 – Lower Saxony-Bremen State Social Court, Judgment of 23 February 2011, – L 13 AS 155/08 –
Ownership of assets within the framework of an existing social security relationship does not depend on the apparent legal status (LSG North Rhine-Westphalia, decision of July 17, 2008 – L 20 B 42/08 AS, L 20 B 32/08 AS ER – para. 25).
In the case of an assignment – which is clearly not relevant here – but also in the case of a concealed trust relationship, the right to a savings balance may well lie with persons other than the account holder (BSG, Judgment of August 28, 2007, B 7/7a AL 10/06 R – Rn. 9).
A particular hardship within the meaning of Section 12 Paragraph 3 Sentence 1 No. 6 Alternative 2 of the German Social Code, Book II (SGB II) can also arise from the special personal circumstances associated with the realization of assets. For example, when realizing a compulsory share of an inheritance, aspects other than purely economic ones, such as a serious family conflict, must also be considered (Federal Social Court [BSG], Judgment of May 6, 2010 – B 14 AS 2/09 R – para. 27). In this respect, the Federal Social Court stated that it is incomprehensible why the assertion of a claim within an intact family unit should always be perceived as an "affront" when there is actual need for assistance – in this case, for a compulsory share of an inheritance. However, the situation may be assessed differently if special circumstances are present (BSG, ibid., para. 29). Family interests can also lead to an exemption from asset requirements under the SGB II from a hardship perspective. However, this presupposes that the enforcement of the claim would have a particularly burdensome effect on the family unit due to exceptional circumstances. Such a burden could also arise from personal circumstances or the heir's financial situation, for example, if a lasting disruption of family harmony were to be feared (BSG, loc. cit., para. 30). Such special circumstances, as required by the BSG in its case law – a case law to which the present panel adheres – are not apparent here; the taking of evidence has also not established the existence of such circumstances.
2.21 – Lower Saxony-Bremen State Social Court, decision of 26 January 2011, – L 13 AS 14/11 B ER –
An application for preliminary legal protection does not imply the filing of a subsequent application, because the application for the granting of benefits is constitutive (BSG judgments of 18 January 2011 – B 4 AS 99/10 R and B 4 AS 29/10 R -).
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – Chemnitz Social Court judgment of 5 November 2010 – S 33 AS 5000/10 –, appeal pending before the Saxon State Social Court under file number L 2 AS 771/10.
Operating cost credits are not always counted towards Hartz IV benefits if they were not actually paid out to the recipient.
3.2 – Social Court Dresden Judgment of 21 April 2011, – S 10 AS 3123/10 –, appeal on points of law allowed
Exclusion according to § 7 para. 5 SGB II also applies to semesters on leave.
There is no supreme court ruling yet on the question of whether a student is also excluded from benefits under the German Social Code, Book II (SGB II) during a leave of absence semester pursuant to Section 7 Paragraph 5 of the former version of the SGB II. However, due to the provisions of Section 20 Paragraph 3 of the Saxon Higher Education Act (SächsHSG), such cases are becoming increasingly common, at least in Saxony, and a fundamental clarification of this legal question also appears necessary in other federal states.
3.3 – Duisburg Social Court Judgment of 22 February 2011, – S 17 AS 1907/10 –
For a three-person household, a living space of 80 m² is considered appropriate from 01.1.2010.
Contrary to the Job Center's opinion, the appropriateness of living space within the meaning of Section 22 Paragraph 1 of the German Social Code, Book II (SGB II), is no longer to be measured according to Section 5.71 of the now-repealed Administrative Regulations on the Housing Commitment Act (VV WoBindG) as of January 1, 2010, but rather according to Section 8.2 of the Housing Use Regulations (WNB) issued by the Ministry of Construction and Transport on December 12, 2009. This is because, according to the principles of interpretation established by the Federal Social Court (BSG) in its consistent case law for interpreting the indeterminate legal term "appropriate living space" within the meaning of Section 22 SGB II, these regulations are the relevant state law provisions.
3.4 – Social Court Karlsruhe Judgment of 19.04.2011, – S 15 AS 2985/09 –
The social security provider may not transfer the full rent to the landlord if the recipient of assistance has reduced the rent.
According to Section 22 Paragraph 4 of the German Social Code, Book II (SGB II), as amended by the Act of July 20, 2006 (Federal Law Gazette I 2006, p. 1706), the costs for accommodation and heating are to be paid by the local authority to the landlord or other authorized recipient if the proper use of the funds by the person in need is not guaranteed. Direct payment to the landlord requires concrete doubts about the proper use of the benefits by the person in need, for example, in cases of substantial rent arrears that have accumulated repeatedly in the past (Berlit in LPK-SGB II, 3rd ed. 2009, marginal note 117 to Section 22). To prevent the risk of disenfranchisement, these requirements must be interpreted restrictively. The person concerned must be heard beforehand.
3.5 – Hildesheim Social Court, decision of 15 July 2010, – S 55 AS 1010/10 ER –
Reimbursement of costs for tutoring in accordance with Section 21 Paragraph 6 of the German Social Code, Book II (SGB II).
According to the Social Court of Dessau-Roßlau, decision of April 20, 2010 – S 2 AS 802/10 ER –, paragraphs 31 et seq., the purpose of the hardship clause is to recognize additional special needs only in a few atypical cases where this is absolutely essential to securing a dignified minimum standard of living, in light of the special fundamental right to this under Article 1 Paragraph 1 and Article 20 Paragraph 1 of the Basic Law (GG). It follows that the costs of tutoring do not constitute a recognized special need in every case. It is not sufficient that tutoring is desirable or helpful in an individual case to improve academic performance. Otherwise, tutoring would have to be granted to almost every student who is not already achieving optimal academic performance. Rather, a special need for tutoring should only exist under the following four cumulative conditions.
3.6 – Social Court Lüneburg Judgment of 03.03.2011, – S 36 AS 629/09 –
The revocation of benefit notices pursuant to Section 44 Paragraph 1 of the German Social Code, Book X (SGB X), which deducted flat-rate allowances for hot water preparation from the heating costs pursuant to Section 22 of the German Social Code, Book II (SGB II) in an unlawful amount, is not excluded pursuant to Section 40 Paragraph 1 Sentence 2 Number 1 of the German Social Code, Book II (SGB II) in conjunction with Section 330 Paragraph 1 of the German Social Code, Book III (SGB III), even for the period before the decision of the Federal Social Court (BSG) of February 27, 2008 – B 14/11b AS 15/07 R – (cf. BSG judgment of December 15, 2010, – B 14 AS 61/09 R –).
Section 330 Paragraph 1 of the German Social Code, Book III (SGB III) does not apply because, with regard to the deduction of the costs of hot water preparation, there was a lack of uniform administrative practice among the municipal benefit providers until the establishment of the consistent case law of the Federal Social Court (BSG) (see also BSG, judgment of 1 June 2010 – B 4 AS 78/09 R –, SozR 4-4200 § 22 No. 36).
The defendant, as a municipal authority that is clearly not bound by the instructions of the Federal Employment Agency, cannot invoke Section 330 Paragraph 1 of the German Social Code, Book III (SGB III) to oppose the claim for restitution, because this provision is inapplicable to the present case, as is evident from the wording itself. This is because the issue is clearly not the interpretation of a legal provision by the Federal Employment Agency, which is the sole addressee of the provision (cf. LPK/SGB II/Conradis, 3rd edition 2009, Section 40, marginal note 5; Gagel/Pilz, Commentary on the SGB II, loose-leaf edition, Section 40, marginal note 15; GK/SGB II/Hohm/Brönstrup, loose-leaf edition, Section 40, marginal note 29).
3.7 – Kiel Social Court, decision of December 2, 2010, – S 38 AS 588/10 ER-
Taking operating cost credits into account is unlawful if the credit did not arise from benefits provided by the job center for accommodation, but is based on additional payments made by the benefit recipient towards the rent.
As a rule of thumb: A credit balance equal to the monthly rent payments multiplied by 12 months belongs to the person in need of assistance and not to the job center, and therefore may neither be reclaimed nor be counted towards housing benefits.
Printed in Hempel's 179 (3/2011), page 23
3.8 – Hildesheim Social Court, decision of 06.01.2011, – S 54 AS 2269/10 ER –
Regarding the interpretation of the element of permanent separation of spouses within the meaning of Section 7 Paragraph 3 No. 3 a) of the German Social Code, Book II (SGB II), the Federal Social Court clarified in its judgment of February 18, 2010 – B 4 AS 49/09 R – (BSGE 105, p. 291 ff.) that the family law principles developed by case law on Section 1567 of the German Civil Code (BGB) apply to the assumption of "permanent separation".
3.9 – Duisburg Social Court Judgment of 17 January 2011, – S 31 AS 479/08 –
Recipients of benefits under the German Social Code, Book II (SGB II) have no right to demand that the job center not be listed as the sender on their letters.
According to Section 35 Paragraph 1 Sentence 1 of the German Social Code, Book I (SGB I), everyone has the right to have their social data, as defined in Section 67 Paragraph 1 of the German Social Code, Book X (SGB X), protected from unauthorized collection, processing, or use by social security agencies (social confidentiality). According to Section 35 Paragraph 2 of the SGB I, the collection, processing, and use of social data is only permissible under the conditions of Chapter Two of the Tenth Book. According to Section 67 Paragraph 1 Sentence 1 of the SGB X, social data is defined as individual details about the personal or factual circumstances of a specific or identifiable natural person (data subject) that are collected, processed, or used by an agency named in Section 35 of the First Book with regard to its tasks under this Code. According to Section 67 Paragraph 6 Sentence 1 of the SGB X, processing includes storing, altering, transmitting, blocking, and deleting social data. Specifically, transmission is the disclosure of stored or data-processed social data to a third party in such a way that the data is passed on to the third party or the third party views or retrieves data made available for inspection or retrieval (§ 67 para. 6 sentence 2 no. 3 SGB X). According to § 67d para. 1 SGB X, the transmission of social data is only permissible if there is a legal authorization for transmission under §§ 68–77 or under another legal provision in this book. According to § 69 para. 1 no. 1 SGB X, the transmission of social data is permissible insofar as it is necessary for fulfilling the purposes for which it was collected or for fulfilling a statutory task of the transmitting agency under this book.
According to these principles, the defendant is permitted to state its official designation on the envelopes in its correspondence with the plaintiff.
There is already no social data worthy of protection within the meaning of Section 67 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II).
It is undisputed that the statement that someone is receiving social benefits is to be regarded as "individual information about the personal or factual circumstances of a specific person" within the meaning of Section 67 Paragraph 1 Sentence 1 of the German Social Code, Book X (see von Wulffen, SGB X, 6th edition 2008, Section 67, marginal note 7; Federal Administrative Court – BVerwG –, judgment of June 23, 1994, 5 C 16/92, juris, marginal note 10; Administrative Court – VG – Bremen, judgment of October 4, 1990, 3 A 323/88, NVwZ-RR 1991, 564; Administrative Court Düsseldorf, judgment of November 6, 1984, 17 K 2376/83, NJW 1985, 1794). Accordingly, it is inadmissible, for example, to state "social benefits" as the subject line for bank transfers or postal orders delivered by the postal carrier (cf. BVerwG, loc. cit.; VG Düsseldorf, loc. cit.).
3.10 – Social Court Detmold Decision of 15 November 2010, – S 19 AS 2423/10 ER –
No loan will be provided to cover the costs of grave decorations; Hartz IV recipients can make a wreath themselves, e.g. with fir branches, cones or similar materials.
5. 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.
Reviews: www.socialnet.de
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
