1.1 – Federal Social Court (BSG) judgment of 10 May 2011, – B 4 AS 139/10R-
Since August 1, 2009, according to Section 6 Paragraph 1 No. 2 of the German Social Code, Book II (SGB II), an amount of 30 euros per month can also be deducted from the income of minors living in a household for contributions to private insurance before this income is taken into account in the calculation of social assistance.
However, the contributions must be reasonable in both amount and purpose, and appropriate insurance must be in place for the minor. The panel agrees with the 8th Senate of the Federal Social Court (BSG) and the Federal Administrative Court (BVerwG) that, with regard to reasonableness, the decisive factors are, on the one hand, for which life risks and to what extent recipients of income just above the basic income support threshold typically make provisions, and on the other hand, which individual circumstances characterize the situation of the person in need.
The Federal Social Court (BSG) has doubts that private accident insurance for children and adolescents is a customary precautionary expense in this sense.
The fact that the insurance was not taken out by HB personally is irrelevant.
1.2 – Federal Social Court (BSG) judgment of 10 May 2011, -B 4 AS 100/10 R-
According to the wording of the regulation, additional expenses due to costly nutrition can only be claimed if beneficiaries require a costly diet for medical reasons.
In this context, "medical reasons" refers exclusively to reasons related to illness. This follows from the historical and systematic reasons.
According to the medical assessment by the LSG, the type I diabetes mellitus present in HB does not necessitate any special nutritional needs in the specific individual case.
When recording the electricity consumption for a fan heater in the bathroom with only one meter, an estimate can be made to differentiate between electricity costs covered by the standard rate (household electricity) and electricity costs as accommodation costs (heating costs).
1.3 – Federal Social Court (BSG) judgment of 10 May 2011, – B 4 AS 11/10 R-
No entitlement to reimbursement of school supplies for the 2006/2007 school year as a subsidy under the German Social Code, Book II (SGB II) (see Federal Social Court judgment of 19 August 2010, -B 14 AS 47/09 R, SozR 4-3500 § 73 No. 2).
Beyond the legal bases for claims addressed in the decision under Sections 21, 23 Paragraph 3 and 24a of the German Social Code, Book II (SGB II), Section 73 of the German Social Code, Book XII (SGB XII), and a claim directly from the Constitution based on the decision of the Federal Constitutional Court of 9 February 2010 (1 BvL 1/09, 3/09, 4/09, BVerfGE 125, 175), no other legal basis exists.
School supplies are not to be deducted in advance from child benefit as income intended to cover the needs of the recipients.
2. Decisions of the Federal Social Court of 12 May 2011 on the Employment Promotion Act (SGB III)
2.1 – Federal Social Court (BSG) judgment of 12 May 2011, – B 11 AL 25/10 R –
The approval of travel expenses is not excluded simply because the respective job interviews aimed at establishing a civil service relationship.
For the group of people seeking vocational training (see Section 15 SGB III), placement in a training relationship (see Section 35 Paragraph 1 Sentence 2 SGB II) also includes training relationships structured under public law.
2.2 – Federal Social Court (BSG) judgment of 12 May 2011, – B 11 AL 24/10 R-
Assistance for subsistence under the German Social Code, Book II (SGB II) is a social benefit that is subsidiary, meaning it would not have been granted if the total amount had been paid on time (§ 104 SGB X).
However, the prerequisite for the deemed fulfillment of the benefit is not only the identity of the benefit period, but also the identity of the person entitled to the secondary and the primary social benefit. The latter, however, only existed in part; because although the unemployment benefit II was paid to the plaintiff (as presumed representative, Section 38 of the German Social Code, Book II), it was granted to the household consisting of him and his wife.
However, the fictitious fulfillment effect only occurs to the extent that the ALG II – including the granted temporary supplement after receipt of ALG and including the KdU – is attributable to his person.
Section 34a of the German Social Code, Book II (SGB II) now applies, according to which – contrary to the previously stated view – claims for reimbursement by other agencies also extend to benefits for securing the livelihood of a spouse who is not permanently separated. This provision only came into force on August 1, 2006. The legislative materials confirm that the legislator intended to close a gap in the existing law, as previously there was no legal basis for treating unemployment benefit II (Alg II) payments made to the spouse as payments made directly to the entitled person when determining their legal effect.
3. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
3.1 – Saxon State Social Court Judgment of 05.05.2011, – L 2 AS 803/09 –
Mortgage payments for a house are to be covered as housing costs if they are unavoidable and reasonable.
According to Section 22 Paragraph 1 of the German Social Code, Book II (SGB II), benefits for accommodation and heating are provided in the amount of the actual expenses, provided these are reasonable. The purpose of this provision is to ensure the essential needs for accommodation and heating are met. The accommodation requirement is comprised of several components. Primarily, the costs associated with the accommodation itself are considered, which is generally the rent.
The actual rental costs are eligible for reimbursement; their amount is usually specified in the written rental agreement. In rental agreements, the (actual) ancillary costs are also considered part of the accommodation costs. These include all ancillary rental costs, in particular those stipulated in the rental agreement or passed on by the landlord to the tenant.
If people in need of assistance live in their own homes, all necessary expenses that can be deducted when calculating income from renting and leasing must be taken into account as accommodation costs.
The principles developed for rental apartments (expenses for an apartment are to be considered reasonable if, in terms of its furnishings, location and building structure, it meets simple and basic needs and does not represent a high standard of living – BSG SozR 4-4200 § 22 No. 3, Rdnr. 19, 20) also apply insofar as those in need of assistance claim costs for a self-occupied condominium of reasonable size within the meaning of § 12 para. 3 sentence 1 no. 4 SGB II (cf. BSG, judgment of 15.04.2008, B 14/7b AS 34/06 R).
The appropriateness of accommodation costs is determined according to uniform criteria for tenants and homeowners (see Federal Social Court [BSG], judgment of June 18, 2008, B 14/11b AS 67/06 R, para. 24). With regard to the costs incurred by accommodation, there is generally no objective reason to treat homeowners and apartment owners differently (see BSG SozR 4-4200 § 12 No. 3 para. 24).
Based on the legislator's objective of enabling people to remain in their homes as long as this is associated with reasonable costs (appropriate housing costs) at the expense of the general public, the principle of equal treatment for tenants and homeowners in need of assistance also supports including mortgage payments. This principle is further elaborated in housing benefit law. The argument that the principles of housing benefit law are not relevant for determining the appropriateness of housing costs cannot be used to oppose this (cf. BSG SozR 4-4200 § 22 No. 3, para. 18). The decisive factor here is that both the housing benefit benefits under Section 22 of the German Social Code, Book II (SGB II), and the housing benefit under the Housing Benefit Act (WoGG) serve to secure housing. Recipients of unemployment benefit II (ALG II) and social assistance under the German Social Code, Book II (SGB II), are excluded from eligibility for housing benefit (§ 1 para. 2 sentence 1 no. 2 WoGG) only because housing cost allowances under § 22 SGB II comprehensively cover reasonable housing needs. However, according to § 6 para. 1 WoGG, for owner-occupied apartments, the "burden" is defined as the "debt service and maintenance costs." Debt service includes, among other things, loan interest and repayment obligations (Stadler/Gutekunst/Dietrich/Fröba, Housing Benefit Act, as of April 2008, § 6 marginal note 37 ff). This also makes it clear that the assumption of repayment obligations within a tax-financed security system is not necessarily excluded.
3.2 – Hessian State Social Court Judgment of 24 March 2011, – L 1 AS 15/10 –, Appeal allowed
The commencement of the additional needs entitlement pursuant to Section 28 Paragraph 1 Sentence 3 No. 4 SGB II (marker G) for persons incapable of working is the validity date of the severely disabled person's identity card (agreeing Knickrehm in Eicher/Spellbrink, SGB II, 2nd edition 2008, Section 28 marginal note 33; Nebe SGb 2011, 193 (194 ff.) with further references in note 27 f.) and not merely the possession of the corresponding severely disabled person's identity card.
The views of the State Social Courts of Baden-Württemberg (judgment of November 20, 2008 – L 7 SO 3246/08) and Lower Saxony-Bremen (judgment of February 25, 2010 – L 8 SO 219/07) are not shared. In the literature, this view is supported by Linhart/Adolph, Social Code II/Social Code XII, as of July 2009, § 30 para. 4 a. E.).
3.3 – State Social Court of Saxony-Anhalt, Judgment of March 3, 2011, – L 5 AS 74/08 – Appeal allowed
The size of the apartment is determined solely by the number of members of the household (BSG, judgment of 18 February 2010, B 14 AS 73/08 R (23)).
The amount of the safety surcharge to be added to the values of § 8 WoGG has not been clarified by the higher court.
4. Decisions of the social courts on basic income support for job seekers (SGB II)
4.1 – Berlin Social Court, decision of 25 January 2011, – S 201 AS 328/11 ER-
The flat-rate amounts for non-cash benefits according to the table of the Federal Ministry of Finance are a tax simplification for restaurant businesses, which do not constitute taxable income.
The approach of treating such flat rates as business income to be taken into account within the meaning of Section 11 of the German Social Code, Book II (SGB II), is not lawful if an applicant credibly demonstrates that he does not feed himself and his family from the food he buys for his Asian snack bar.
This calculation would result in applicants being credited with a higher amount of income than is included in the standard allowance for food. Section 3, paragraph 3 of the Regulation on Unemployment Benefit II (Alg II-V) only governs the treatment of actual income and expenses. It does not regulate the extent to which flat-rate allowances for personal consumption may be applied.
++ Note: Baden-Württemberg Higher Social Court decision of 4 April 2008, L 7 AS 5626/07 ER-B
The goods withdrawn by the operator of a snack bar must be added to the operating income.
Although the Baden-Württemberg State Social Court (decision of 04.04.2008, file no. L 7 AS 5626/07) used the lump sums from the guideline collection of the Federal Ministry of Finance and took them into account as business income of the self-employed person in need of assistance.
However, in this case, the use of flat-rate amounts was already evident from the tax advisor's preliminary profit calculation. He had included the flat-rate amounts as "business revenues." In the proceedings, the applicant failed to provide credible evidence of his actual withdrawals of goods in response to the court's request, which is why the flat-rate amounts were used.
4.2 – Social Court Dresden Judgment of 15 April 2011, – S 40 AS 471/08 –, appeal allowed
Employer-provided expense allowances are considered income.
In addition to the intended purpose, it must also be considered that, even if the intended purpose is not identical, income is only disregarded under Section 11 Paragraph 3 No. 1a of the German Social Code, Book II (SGB II), if it does not improve the recipient's situation to such an extent that benefits under the SGB II would no longer be justified. Such an improvement can exist if earmarked but freely available wage subsidies, possibly up to the tax-free rates, exceed the actual additional expenses incurred, particularly for meals away from home, and therefore only need to be used partially for their intended purpose, with the excess amount available for living expenses (see Saxon State Social Court, Decision of September 21, 2010, L 7 AS 395/10 B ER).
Tax-free benefits provided by employers under Section 3 No. 16 of the German Income Tax Act (EStG) are causing problems in many pending legal disputes. In the Saxon social court system, the question of whether a sufficient designation of purpose can be inferred from the fact that the employment contract refers to the tax regulations is answered differently. For this reason alone, these legal questions require clarification by the State Social Court.
5. Decisions of the State Social Courts on Employment Promotion Law (SGB III)
5.1 – LSG Baden-Württemberg Judgment of 18 January 2011, – L 13 AL 3853/10 –
According to Section 2 Paragraph 3 of the German Social Code, Book IX (SGB IX), equal treatment with a severely disabled person due to the threat of job loss is only permissible if the disabled person faces a concrete threat of job loss as a result of their disability without such equal treatment; a merely abstract threat to the job is insufficient.
Misunderstandings, unclear responsibilities, unfriendly interactions, unclear work instructions, professional deficiencies and a lack of understanding for the respective situation of the other person, or even personal difficulties in the relationship between a disabled person and their superiors that are not based on a disability, do not justify equal treatment with a severely disabled person within the meaning of Section 2 Paragraph 3 of the German Social Code, Book IX (SGB IX).
According to the abstract principle, a concrete threat to the workplace due to disability-related deficits is required. This is evident from the wording of Section 2 Paragraph 3 of the German Social Code, Book IX (SGB IX) (…if, as a result of their disability, they cannot obtain or retain a suitable job within the meaning of Section 73 without equal status (equal status disabled persons)). However, reading the full text of the decision reveals that the employer, due to frequent illnesses (disability-related = back problems), had asked the employee how she planned to proceed. This could constitute a concrete threat to the workplace.
According to the jurisprudence of the Federal Social Court (BSG, March 2, 2000 – B 7 AL 46/99 R), it is not necessary for a job to be specifically offered with regard to obtaining employment; rather, it is sufficient if the possibility of obtaining employment is improved by equal status. It must be taken into account that the risk to employment is rooted in the disability, meaning the risk must be based on the disability. However, it must also be considered that disabled people face greater difficulties on the general labor market than non-disabled people, and that equal treatment is intended to mitigate the rigid limits of the 50% disability rating (see Federal Social Court, 19 December 2001, B 11 AL 57/01 R, para. 22). The decision therefore certainly warrants critical commentary.
6. Decisions of the social courts on employment promotion law (SGB III)
6.1 – Social Court Karlsruhe Judgment of 11 May 2011, – S 15 AL 5580/09 –
No reinstatement if the expiry date for unemployment benefits is missed due to incapacity for work
If an unemployed person is unable to assert their claim for unemployment benefits due to incapacity for work within the four-year limitation period of Section 147 Paragraph 2 of the German Social Code, Book III (SGB III), which begins upon the accrual of the claim, they cannot be placed in the position they were in had they not missed the deadline by way of reinstatement to their previous status under Section 27 of the German Social Code, Book X (SGB X) or by way of a social law restitution claim.
www.sozialgericht-karlsruhe.de
7. Decisions of the State Social Courts on Social Assistance (SGB XII)
7.1 – Berlin-Brandenburg State Social Court, decision of April 4, 2011, – L 15 SO 41/11 NZB –
According to Section 28 Paragraph 1 Sentence 2 of the German Social Code, Book XII (SGB XII), people with oversized or special body sizes are entitled to an increased standard rate.
According to Section 28 Paragraph 1 Sentence 1 of the German Social Code, Book XII (SGB XII), the entire cost of necessary subsistence outside of institutions is generally covered by standard rates, with the exceptions specified therein. These standard rates are based on typical needs for clothing and shoes, derived from statistical surveys. The 10% allocation for clothing and shoes is based on average expenditures of the statistical reference group, and at least partial reliance on secondhand goods is considered reasonable (see legislative materials, Bundestag printed matter 15/1514, p. 59, referring to Section 29 of the draft law). According to Sentence 2 of the provision, the rates are set differently if, in an individual case, a need is wholly or partially covered by other means or if its amount unavoidably deviates significantly from an average need. The official justification for this regulation (BT-Drucks. aaO) states: "A demonstrably significant difference in amount from an average need exists, for example, if the beneficiary has to wear expensive undersized or oversized clothing."
This standard example of a higher need to be taken into account is also cited in the literature (see, among others, Schneider in Schellhorn/Schellhorn/Hohm, SGB XII 18th ed. 2010, marginal note 14 to § 28, and Wahrendorf in Grube/Wahrendorf, SGB XII 3rd ed. 2010, marginal note 27 to § 28), so that the applicability of § 28 para. 1 sentence 2 SGB XII in cases such as the present one is beyond doubt.
See also the section on SGB II
The term "initial clothing provision" is to be understood in a needs-based manner. Here, too, the formula "new need due to exceptional circumstances" can serve to define the scope (see also Münder in Münder, Social Code Book II, 3rd edition 2009, para. 32).
According to this, "extraordinary circumstances" that could give rise to a new need for clothing include not only total loss, but also illness, disability, accidents, and significant weight gain or loss within a short period, etc. (see also Schmidt in:
Oestreicher, SGB XII/SGB II, § 23 SGB II marginal note 52; Bender in Gagel, SGB III and SGB II, § 23 SGB II marginal notes 71/72, as of the 36th supplementary delivery
2009; Hengelhaupt in Hauck/Noftz, SGB II, Section 23 marginal notes 343, 363, (BT-Dr. 15/1514, 60). Berlin-Brandenburg State Social Court L 34 AS 24/09, judgment of February 25, 2010 (the principle of meeting needs also applies in SGB II).
Entitlement to benefits for initial clothing outfitting
According to the legislator's intent, a claim under Section 23 Paragraph 3 Sentence 3 Number 2 Alternative 1 of the German Social Code, Book II (SGB II) is considered in exceptional circumstances, such as those resulting from a fateful situation, like prolonged imprisonment, homelessness, or a house fire (see Bundestag Printed Matter 15/1749, p. 33, with reference to Bundestag Printed Matter 15/1514, p. 60). Similarly, corresponding benefits are to be granted in cases of exceptional growth in height caused by growth spurts (Commentary on Social Law, Section 23 SGB II, marginal note 15) or significant weight fluctuations (SGB II, Section 23, marginal note 82).
8. Social and labor law issues concerning the full freedom of movement of workers from the EU-8 states since 01.05.2011. Author: Prof. Dr. Rainer Schlegel, Ministerial Director, Source: jurisPR-SozR 9/2011 Note 1.
Quote:
1. Labor migration from EU-8 countries from 01.05.2011
On May 1, 2004, Poland, Hungary, the Czech Republic, Slovakia, Slovenia, Estonia, Latvia, and Lithuania (the so-called EU-8 countries) joined the European Union. With their accession, nationals of these EU-8 countries were, in principle, granted the fundamental freedoms guaranteed by the EU, including the right to provide services and the free movement of workers. However, the older member states were given the option of restricting the free movement of workers (Article 45 TFEU) and thus the access of citizens from the EU-8 countries to the labor market during a three-phase, seven-year transitional period. Germany made use of this option. This restriction has now expired, so that since May 1, 2011, citizens from the EU-8 countries have been able to fully exercise their freedom of movement for workers and no longer require a work permit (§ 283 SGB III) to work in Germany. In the past, Germany had already granted EU-8 citizens access to the German labor market in a phased manner: for workers with university degrees without a priority check, and for workers with other vocational qualifications with a priority check. For Malta and Cyprus, which also joined the EU in 2004, freedom of movement for workers came into effect immediately and without transitional provisions. For Romania and Bulgaria, which joined the EU in 2007, Germany can postpone the entry into force of full freedom of movement for workers until the end of 2013; the German government is to decide during 2011 whether and until when the transitional period for Bulgaria and Romania will be extended.
In addition to the aforementioned access for "qualified" workers based on the right to freedom of movement for workers, self-employed individuals based in the EU-8 member states have been able, since the EU-8's accession in 2004, to exercise their right to freedom to provide services, granted since May 1, 2004, by posting their employees to Germany. The freedom to provide services guaranteed by Article 56 TFEU encompasses not only the right of an entrepreneur/self-employed person to temporarily provide services in another member state, but also the right to have these services performed by their own employees posted across borders. Following the accession of the EU-8 member states, until the expiry of the aforementioned transitional period, the freedom to provide services was restricted only sectorally, namely for the construction industry, the building cleaning industry, and interior decoration. Temporary agency workers could not be posted. They were to be refused a work permit (see Section 6 Paragraph 1 No. 2 of the Work Permit Ordinance).
The expiration of the transitional arrangement on May 1, 2011, is therefore particularly significant for less qualified workers, temporary agency workers, and employees in the construction, interior decorating, and building cleaning sectors, who were previously denied access to these sectors but now have it granted without a permit. Citizens of these countries no longer require a work permit or work authorization as of May 1, 2011.
There are only cautious estimates regarding the number of people who will exercise their right to freedom of movement for workers since May 1, 2011. The IAB (Baar/Brücker, EU Enlargement: Considerable Gains for the German Economy; IAB Short Report No. 6/2007) estimates an increase of 100,000 people per year.
In political discussions, immigration is welcomed insofar as it can counteract a looming or already existing labor shortage, and especially a shortage of skilled workers, in Germany. Some fear that the influx of low-skilled workers could lower the overall wage level for simple jobs, leading some to demand a general statutory minimum wage to prevent widespread wage dumping. Others consider expanding industry-specific minimum wages and establishing a minimum wage for temporary work agencies sufficient. Overall, however, the prevailing opinion is that since May 1, 2011, "European normality" has been established, and that negative effects on unemployment and wage levels will either be absent or remain very limited; in any case, there is no reason to panic.
II. Applicable Law – Private International Law and Rome I Regulation
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9. Free legal advice for recipients of Hartz IV benefits will be offered by social law expert Ludwig Zimmermann on Tuesday, May 17th, from 2 pm to 6 pm at Wiclefstrasse 16/17, 10551 Berlin, c/o Attorney Schuster. S-Bahn station: Beusselstrasse; U-Bahn station: Birkenstrasse. Please bring your current benefits statement.
Reviews:
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10. Slide agreement on ALG II, dated May 12, 2011, prepared by Harald Thome
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
