Federal Social Court (BSG) judgment of 24 February 2011, – B 14 AS 61/10 R-
Under Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), eligible expenses for accommodation in owner-occupied homes include not only mortgage interest payments but also ancillary costs such as building insurance premiums, property taxes, water and sewage fees, and similar expenses incurred during the relevant benefit period. If the home is owner-occupied, the accommodation costs include expenses that the benefit recipient must bear as burdens directly associated with ownership. Insofar as such costs are due in a single payment, they must be considered as actual, current needs at the time they become due, and not spread over longer periods (see, for example, Federal Social Court [BSG] SozR 4-4200 § 9 No. 5, Paragraph 36).
When considering eligible costs for accommodation and heating in owner-occupied homes, the sole aim is to determine those costs that are actually and inextricably linked to the use of the property. In this respect, the Higher Social Court (LSG), referring to case law of the Higher Administrative Court of North Rhine-Westphalia, explained that connection fees under Section 10 of the North Rhine-Westphalia Municipal Charges Act (KAG NRW) constitute a public charge on the property. They arise from the municipality's obligation to connect to and use the utilities, to which the property owner is subject, and are structured in such a way that they are unavoidable burdens for the owner and directly connected to the use of the property. The Senate is bound by this interpretation of the state law provisions (Section 162 of the Social Court Act (SGG)). The further state law structuring of such charges as fees or special types of public-law payments is irrelevant according to the purpose of Section 22 of the German Social Code, Book II (SGB II). The extent to which the assumption of such public-law charges, which the homeowner cannot avoid, by the provider of basic income support is to be considered justified is solely a question of the appropriateness of such costs.
It is irrelevant whether the inclusion of these costs is covered by the wording, meaning, and purpose of Section 7 Paragraph 2 Sentence 1 Number 2 of the Ordinance on Section 82 of the German Social Code, Book XII (SGB XII). Section 7 of the Ordinance on Section 82 of the SGB XII is to be applied (only) analogously for determining which (ancillary) costs for owners are to be considered eligible costs (BSGE 100, 186 = SozR 4-4200 § 12 No. 10, marginal note 38). The costs mentioned therein can only serve as an indication of the extent to which eligible costs arise within the framework of Section 22 of the German Social Code, Book II (SGB II). Due to its systematic position, the provision has no binding effect on the concretization of the concept of expenses for accommodation (BSG SozR 4-4200 § 22 No. 17 marginal note 16).
According to the Federal Social Court's (BSG) jurisprudence, the appropriateness of costs associated with the use of property is to be measured against the costs that are appropriate for rental apartments (for details, see BSGE 100, 186 = SozR 4-4200 § 12 No. 10). This jurisprudence should be further specified to mean that the comparison between the costs of a net rent that is abstractly appropriate in the local comparison area and the costs incurred when using owner-occupied houses or apartments must be based on the costs incurred in a calendar year. This is justified by the fact that operating costs for owner-occupied homes (such as property taxes, insurance premiums, and water and sewage fees) are typically incurred not monthly, but annually, semi-annually, or quarterly. A monthly approach is therefore not suitable for realistically reflecting the regular costs of owner-occupied homes. On the other hand, the assessment of the appropriateness of costs over a one-year period takes into account that, according to Section 41 Paragraph 1 Sentence 5 of the German Social Code, Book II (SGB II aF), benefits (as has been the case here) may only be granted for a maximum of one year. It can be assumed that no significant changes in the living circumstances of a person in need of assistance will occur for a maximum of this period. However, the assessment of the appropriateness of total costs over one year does not mean – as already explained – that one-off costs must be spread over longer periods by the basic income support provider.
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – State Social Court of Saxony-Anhalt, decision of April 29, 2011, – L 2 AS 151/11 B ER –
An action for annulment pursuant to Section 54 Paragraph 1 Sentence 1 of the Social Court Act (SGG) is only admissible against the denial of social benefits due to lack of cooperation (see Federal Social Court decision of 01.07.2009 – B 4 AS 78/08 R – BSGE 104, 26 – Rn. 12).
2.2 – State Social Court of Saxony-Anhalt, decision of April 5, 2011, – L 5 AS 342/10 B ER –
In cases where an application for an interim injunction is made within the framework of an ongoing review procedure pursuant to Section 44 of the German Social Code, Book X (SGB X), particularly strict requirements must be placed on substantiating the grounds for the injunction.
Claims for benefits in so-called "benefit proceedings" pursuant to Section 44 of the German Social Code, Book X (SGB X), concern legally binding decisions that are binding on all parties until their revocation. If a legally binding decision is to be revoked in such proceedings, applicants are generally expected to await the decision in the administrative proceedings and, if applicable, in subsequent main court proceedings (see Higher Social Court of Saxony-Anhalt, decision of January 24, 2008, L 2 B 96/07 AS ER; Higher Social Court of Lower Saxony-Bremen, decision of February 9, 2006, L 7 AS 384/05 ER).
Because of the particularly strict requirements for substantiating the grounds for the order, it is necessary to demonstrate massive interventions in social and economic existence with significant effects on living conditions.
2.3 – State Social Court of Saxony-Anhalt, decision of 31 March 2011, – L 5 AS 359/10 B ER –
A move is necessary if the accommodation is of the lowest standard and cannot regularly be referred to the person entitled to benefits under the German Social Code, Book II (SGB II) when searching for housing.
A basic amenity, either central heating or a bathroom, must be present for living conditions to be considered acceptable (Federal Social Court, judgment of October 19, 2010, – B 14 AS 2/10 R, para. 24). In cases of unacceptable living conditions, a move is generally considered necessary, unless the person entitled to benefits moved into the specific accommodation knowing it was unacceptable and consciously accepted the existing living conditions.
2.4 – Saxon State Social Court Judgment of 31 March 2011, – L 3 AS 140/09 –, Appeal allowed
The portion of the Master's BAföG (student loan) that is granted as a loan must be considered as income.
This is not contradicted by the ruling of the Federal Social Court of June 17, 2010 (Case No.: B 14 AS 46/09 R).
In this ruling, the Federal Social Court decided that receipts in cash or in kind, encumbered as loans with a legally binding repayment obligation, are not to be considered income for the purposes of basic income support for job seekers. Even within the scope of Section 11 Paragraph 1 of the German Social Code, Book II (SGB II), a benefit provided only temporarily by a third party cannot be classified as income according to the purpose and intent of the provision. Only the "increase in value" constitutes income within the meaning of Section 11 Paragraph 1 SGB II; only those receipts in cash or in kind that result in a change in the financial position of the recipient are to be considered income. This increase must remain with the recipient for their final use, as only then will their need for assistance be permanently eliminated (see Federal Social Court, Judgment of June 17, 2010 – B 14 AS 46/09 R – JURIS document, para. 16). The Federal Social Court, however, expressly stated that it was not necessary to decide in this case whether different rules apply to the granting of state benefits for subsistence in the form of loans. As an example of such a benefit, it cited the so-called Master Craftsman's BAföG (Federal Training Assistance Act) under the Advanced Vocational Training Promotion Act (see BSG, ibid.).
2.5 – Saxon State Social Court Judgment of 17 March 2011, – L 3 AS 500/09 –
The subsidy for the costs of accommodation and heating of a trainee excluded from benefits under SGB II, who receives vocational training assistance from the Federal Employment Agency (BA), is calculated based on the uncovered accommodation needs as defined in SGB II, taking into account income received, including vocational training assistance, and is limited by the difference between the accommodation needs according to SGB II and the accommodation allowance included in the training assistance benefit (see Federal Social Court (BSG) judgment of 22 March 2010, – B 4 AS 69/09 R-).
2.6 – Berlin-Brandenburg State Social Court, decision of 15 April 2011, – L 14 AS 218/11 B ER –
For a prisoner on work release whose release date is uncertain, accommodation costs for maintaining their residence are not covered under either the German Social Code, Book II (SGB II) or Book XII (SGB XII); length of detention approximately 10 months.
According to Section 7 Paragraph 4 Sentences 2 and 3 No. 2 of the German Social Code, Book II (SGB II), benefits under this book are not granted, among other things, to those who are in a facility for the execution of judicially ordered deprivation of liberty and are not employed for at least 15 hours per week under the usual conditions of the general labor market.
When staying in such a residential facility, which is treated as equivalent under the law, it is irrelevant whether the nature of the facility precludes the commencement of at least three hours of daily employment on the general labor market from the outset (cf. BSG judgment of 24.02.2011, – – B 14 AS 81/09 R-).
2.7 – Berlin-Brandenburg State Social Court, decision of 29 April 2011, – L 14 AS 2063/09 B PKH –
There is no apparent obligation, as regulated in §§ 90, 92 SGG (in the version applicable until 31 March 2008), of a judicial employee of a legal aid office to advise legal applicants regarding the (material) legal situation.
2.8 – Berlin-Brandenburg State Social Court, decision of 09.05.2011, – L 14 AS 1705/09 NZB –
The legal question of whether (monthly) accommodation costs are to be rounded according to Section 41 Paragraph 2 of the German Social Code, Book II (SGB II) in the version applicable until December 31, 2010, is not of fundamental importance, since Section 41 Paragraph 2 of the German Social Code, Book II (SGB II) in the version applicable from January 1, 2011, has come into force.
The regulation read: "Amounts that do not result in whole euros are to be rounded down up to €0.49 and rounded up from €0.50 onwards," and now reads: "Calculations are performed to two decimal places unless otherwise specified. In the case of a calculation performed to decimal places, the last decimal place is increased by one if the following decimal place would result in one of the digits 5 to 9." While the wording alone does not necessarily indicate that clarification is needed, the explanatory memorandum to the law clarifies these doubts. Regarding Section 41 Paragraph 2 of the German Social Code, Book II (SGB II) (Bundestag printed matter 17/3404, p. 115), which was not amended by the Mediation Committee (see Bundestag printed matter 17/4719 and 17/4830), the following is stated:
The rounding rule previously contained in paragraph 2 has led to ambiguities and is therefore repealed.
In the future, only standard benefit rates will be rounded when calculated or updated. A regulation is needed to handle the third decimal place in cases where, for example, the per capita allocation of housing and heating costs results in a third decimal place.
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – Aachen Social Court Judgment of 21 March 2011, – S 14 AS 159/10 –
In cases of lactose intolerance, an additional allowance of €71.58 is not always to be expected (see judgment of the Bavarian State Social Court of 13 September 2007, file number L 11 AS 258/06).
Because such a fixed amount cannot be derived from the recommendations of the German Association and especially from case law.
3.2 – Aachen Social Court Judgment of 14 February 2011, – S 14 AS 92/09 –
In principle, the authority bears the objective burden of proof that there are facts that render the initial decision unlawful within the meaning of Section 45 of the German Social Code, Book X (SGB X).
However, a reversal of the burden of proof is justified if events originating in the sphere of the benefit recipient cannot be clarified (cf. Federal Social Court, judgment of 28.08.2007, file no. B 7/7a AL 10/06 R with further references)
3.3 – Social Court Berlin Judgment of 04.05.2010, – S 115 AS 30405/08 –
The German Social Code, Book II (SGB II), assumes that a household community can (still) exist for married couples if they live separately, for example, due to one spouse requiring care and residing in a nursing home (for the scenario of temporary separation after previously living together, see also: Spellbrink in Eicher/Spellbrink, SGB II, 2nd edition 2007, § 7, marginal note 41; for separation of spouses who do not share finances: Mrozynski, Basic Income Support and Social Assistance, II.7, marginal note 16, as of August 2006; for the scenario of separation without intent to separate: S. Knickrehm in Kreikebohm/Spellbrink/Waltermann, Commentary on Social Law, 1st edition 2009, § 7 SGB II, marginal note 17).
The fundamental principle of the "community of need" is based on the assumption that all members of this community assume responsibility for one another, including financial responsibility. Basic income support is only granted as a secondary measure, if the members of the community of need cannot jointly cover their needs (see Section 9 Paragraph 1 Sentence 1 of the German Social Code, Book I; Section 9 Paragraph 2 Sentence 3 of the German Social Code, Book II). The legislator of the German Social Code, Book II, did not primarily link the presumption of mutual need coverage to the existence of maintenance claims, but rather to the specific factual circumstances detailed in Section 7 Paragraph 3 of the German Social Code, Book II (see Federal Social Court, Judgment of April 15, 2008 – B 14/7b AS 58/06 R – SozR 4-4200 § 9 No. 5, Paragraph 39). In the case of married couples, unlike, for example, the situation of a cohabiting couple (Section 7 Paragraph 3 No. 3c of the German Social Code, Book II), it does not require them to live together in the same household.
3.4 – Stuttgart Social Court, decision of March 24, 2011, – S 24 AS 1359/11 ER –
The exclusion of benefits under Section 7 Paragraph 1 Sentence 2 No. 1 of the German Social Code, Book II (SGB II) for the first three months of residence also includes all foreigners who enter the federal territory as family members of a German citizen.
Living together with a German in a community of need does not change that.
The exclusion of benefits does not violate the state's duty to protect under Article 6 Paragraph 1 of the Basic Law, nor the prohibition of discrimination expressed in this provision. The legislature is not constitutionally obligated to grant a foreign spouse moving into Germany an entitlement to social benefits from the first day of their entry. The objective of limiting immigration and the temporary protection against immigrants claiming state social benefits are, within the scope of legislative discretion, valid and constitutionally weighty reasons.
Insofar as it is sometimes argued – without justification – that the exclusion of benefits does not include foreigners who enter the federal territory as family members of a German citizen,
See, for example, Hackethal, in: jurisPK-SGB II, 2nd ed. 2007, § 7 para. 30; presumably also LSG NRW, decision of 07.12.2009 – L 19 B 363/09 AS, juris, referring to Brühl/Schoch, in: LPK-SGB II, 3rd ed. 2009, § 7 para. 31, all, however, without reasoning; unclear Schumacher, in: Oestreicher, SGB II/SGB XII, § 7 SGB II para. 11 (as of September 2009)
This argument cannot be accepted because the law does not contain any such provision. Section 7, paragraph 1, sentence 2, number 1 of the German Social Code, Book II (SGB II) exhaustively lists those cases in which the exclusion from benefits should not apply ("those who are neither one nor the other"). Conversely, the exception expressly mentioned in sentence 3 also implies that no exception to the exclusion should apply in the case of a different reason for residence
This was already correctly stated in the decision of the Social Court of Duisburg of 19 November 2009 – S 31 AS 414/09 ER-.
3.5 – Duisburg Social Court, Judgment of February 5, 2010, – S 3 (17) AS 319/06 –, appeal pending before the Federal Social Court under file number: B 14 AS 76/11 R
Bonus payments on savings contracts are considered income and not earmarked income.
4. Decisions of the State Social Courts on Social Assistance (SGB XII)
4.1 – Baden-Württemberg State Social Court, Judgment of May 4, 2011, – L 2 SO 5815/09 –, Appeal allowed
Assisted living within the meaning of Section 98 Paragraph 5 of the German Social Code, Book XII (SGB XII) requires a conceptual link between housing and outpatient care.
4.2 – North Rhine-Westphalia State Social Court, Judgment of 20 April 2011, – L 9 SO 30/10 –, Appeal allowed
Assistance for the conversion of an apartment is not covered by Section 92 Paragraph 2 Sentence 1 Number 3 of the German Social Code, Book XII (SGB XII) pursuant to Section 55 Paragraph 2 Number 5 of the German Social Code, Book IX (Wahrendorf in: Grube/Wahrendorf, SGB XII, 3rd edition 2010, Section 92 Paragraph 18).
5. Federal Ministry of Labour presents SGB II information platform
New information platform creates transparency about job center services – figures are updated monthly
6. Note on: Social Court Karlsruhe, 1st Chamber, Judgment of 11 February 2011 – S 1 SO 5181/10-, Author: Dirk H. Dau, Retired Judge of the Federal Social Court, Source: jurisPR-SozR 10/2011 Note 1
Crediting of spousal income even in cases of separation of property and waiver of maintenance
Guiding principle
The marital property regime of separation of property agreed upon in a prenuptial agreement, as well as a mutual waiver of maintenance for the past, present and future including in cases of hardship agreed upon between spouses, does not preclude the crediting of income exceeding the needs of one spouse against the social welfare needs of the other spouse.
7. Decisions on the right to subsistence security under the German Social Code, Book II (SGB II)
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
