1.1 – BSG, Judgment of 06.04.2011, – B 4 AS 117/10 R-
Long-term unemployed people participating in further training measures are entitled to mileage allowance for the journey to and from their internship placement.
The legal basis for the reimbursement of travel expenses is Section 16 Paragraph 1 Sentence 2 SGB II in conjunction with Section 81 Paragraph 2 SGB III and Section 5 Paragraph 1 BRKG.
The decision regarding the amount of travel expenses to be reimbursed is governed exclusively by the provisions of the German Social Code, Book III (SGB III), if the measure itself – as in this case – has been approved as a further training measure pursuant to Section 77 SGB III. While the decision to grant such a measure is at the discretion of the basic income support provider pursuant to Section 16 Paragraph 1 Sentence 2 of the German Social Code, Book II (SGB II), the granting of travel expense reimbursement is, as a consequence of the fundamental decision, a mandatory decision pursuant to Section 81 SGB III.
As far as the scope of travel expense reimbursement is concerned, there is no deviating regulation within the meaning of Section 16 Paragraph 2 Sentence 1 of the German Social Code, Book II (SGB II), in the basic income support law. An analogous application of Section 6 Paragraph 1 Number 3b of the German Regulation on Unemployment Benefit II (Alg II-V) is not possible. There is no unintended gap in the regulations concerning travel expense reimbursement within the SGB II.
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – North Rhine-Westphalia State Social Court, judgment of 16 May 2011, – L 19 AS 2202/10 50 –, appeal allowed
50 square meters of living space for single recipients of Hartz IV benefits
++ Note: From the Thomé newsletter of May 19, 2011
The 19th Senate of the LSG NRW recognizes 50 square meters for a single person
In North Rhine-Westphalia (NRW), the Ministry has been engaging in a swindle for some time now, using only 45 square meters as a basis for calculating reasonable housing costs for single recipients of unemployment benefit II (ALG II), contrary to clear rulings by the Federal Social Court (BSG). This ministerial position has so far been upheld by the 9th Senate of the Higher Social Court of NRW (LSG NRW). More information can be found here: Housing costs in NRW: Ministry cheats at the expense of those affected. However, on May 16, 2011, the 19th Senate of the LSG NRW ruled that 50 square meters of living space should be considered reasonable for a single person receiving ALG II. The 19th Senate finds it incomprehensible to adhere to an outdated and no longer valid regulation, even though a successor regulation has come into force (see also Federal Social Court ruling of September 22, 2009 – B 4 AS 70/08). He is therefore rightly opposing the decision of his colleagues (LSG NRW of May 16, 2011 – 19 AS 2202/10). The full text of the judgment is not yet available, but this has been reported in advance by those involved. This should finally initiate a new round of debate on the appropriateness of the benefits. It would also be appropriate for the red-green state government to take a stance on the exploitation of Hartz IV and SGB XII recipients. The same tenor was just reached by the Duisburg Social Court in its judgment of February 22, 2011, – S 17 AS 1907/10-.
2.2 – North Rhine-Westphalia State Social Court, decision of 27 May 2011, – L 12 AS 522/11 B ER –
According to Section 86b Paragraph 1 Sentence 1 No. 2 of the Social Court Act (SGG), the court of first instance may, upon application, order the suspensive effect in whole or in part in cases where an objection or appeal does not have suspensive effect.
Such an application is justified if a balancing of interests shows that the applicant's private interest in obtaining a stay of execution takes precedence over the public interest (represented by the respondent) in immediate enforcement. It should be noted that the legislator has generally mandated immediate enforcement (§ 39 No. 1 SGB II). A deviation from this is only warranted if, in a specific case, there are compelling arguments for reversing the general rule assumed by the legislator, i.e., special circumstances exist that exceptionally give precedence to the private interest of the person burdened by the administrative act (LSG NRW, decision of August 13, 2010 – L 6 AS 999/10 B ER – para. 24).
Since the outcome of the main proceedings is therefore uncertain, the necessary balancing of interests at the relevant time of the Senate's decision weighs against the applicant. At present, no serious and irreparable disadvantages are apparent from the file, nor have any been alleged by the applicant, that the decision in the main proceedings could subsequently remedy. Therefore, in light of the requirement of effective legal protection enshrined in Article 19 Paragraph 4 of the Basic Law, it is reasonable to expect the applicant to await the decision in the main proceedings (see also Higher Social Court of North Rhine-Westphalia, decision of August 13, 2010 – L 6 AS 999/10 B ER – para. 30; Higher Social Court of North Rhine-Westphalia, decision of February 26, 2010 – L 6 B 154/09 AS ER – para. 23). This follows in particular from the fact that the sanction period has now expired and the applicant has been receiving benefits from the respondent again since March 2011, so that his livelihood is secured (see also LSG NRW, decision of 13.08.2010 – L 6 AS 999/10 B ER – para. 30; LSG NRW, decision of 21.12.2009 – L 19 B 277/09 AS – para. 14).
Furthermore, it should be considered that if the respondent were to make a provisional (back) payment of the benefits and subsequently prevail in the main proceedings, it would be difficult for him to enforce his claim for reimbursement. Thus, the granting of the benefits would ultimately create a situation whose (economic) consequences would be equivalent to a prejudgment of the main proceedings in favor of the applicant (see also Higher Social Court of North Rhine-Westphalia, decision of August 13, 2010 – L 6 AS 999/10 B ER – para. 30).
2.3 – North Rhine-Westphalia State Social Court, decision of 17 May 2011, – L 6 AS 356/11 B ER –
As part of the balancing of interests, the applicants (Romanians) are to be granted benefits under the German Social Code, Book II (SGB II).
For in the preliminary legal protection proceedings, it is not possible to definitively clarify the question of whether the exclusion of benefits under Section 7 Paragraph 1 Sentence 2 No. 2 of the German Social Code, Book II (exclusion of benefits if the right of residence arises solely from the purpose of job seeking) applies to the detriment of the applicants. Based on the Senate's previous considerations, there are considerable doubts as to whether the exclusion of benefits in this provision is compatible with European Union law (see also the Senate's decision of February 26, 2010 – L 6 AS 154/09 AS ER; see also the decision of the Higher Social Court of North Rhine-Westphalia of February 17, 2010 – L 19 B 392/09 AS ER; the decision of the Higher Social Court of Berlin-Brandenburg of January 11, 2010 – L 25 AS 1831/09 B ER; the decision of the Higher Social Court of Bavaria of May 4, 2009 – L 16 AS 130/09 B ER; in the literature: Valgolio in Hauck/Noftz § 7 para. 30; Spellbrink in Eicher/Spellbrink, ibid., § 7 para. 17 with further references; Löns in Löns/Herold-Tews, SGB II, 2nd ed.). 2009 edition, § 7 para. 13 with further references; Brühl/Schoch in LPK-SGB II, 3rd edition 2009, § 7 para. 36 with further references; Schreiber, info also 2008, 3 ff, info also 2009, 195 ff.; Husmann, NZW 2009, 652, 656; contra: LSG Berlin-Brandenburg, decision of 23 December 2009 – L 34 AS 1350/09 B ER and decision of 8 June 2009 – L 34 AS 790/09 B ER; LSG Lower Saxony-Bremen, decision of 29 September 2009 – L 15 AS 905/09 B ER; Denying incompatibility with European law for economically inactive EU citizens: Hessian LSG, decision of October 14, 2009 – L 7 AS 166/09 B ER)
2.4 – North Rhine-Westphalia State Social Court, decision of 18 May 2011, – L 7 AS 619/11 B –
Moving expenses must be applied for before the move takes place.
Because the claim under Section 22 Paragraph 3 of the German Social Code, Book Two (SGB II) generally requires, due to the assurance requirement, a positive decision to assume the costs before the contractual establishment of the expenses to be assumed, in addition to the application principle (Section 37 SGB II).
The decisive factor is the conclusion of the contract with the moving company (Lang-Link, Commentary on the German Social Code, Book II, 2nd edition 2008, § 22 para. 82; Berlit in LPK-SGB II, 3rd edition 2009, § 22 para. 105 et seq.). Prior confirmation of moving costs can only be waived if a decision that could have been made within the prescribed time limit has been delayed by the administrative body in bad faith (Federal Social Court, judgment of May 6, 2010 – B 14 AS 7/09 para. 13).
2.5 – Hessian State Social Court Judgment of 23 March 2011, – L 6 AS 382/07 –
If a serious attempt to dissolve the community of heirs has taken place, no further action can be demanded from HB and it must remain the case that his ideal share is not realizable to the extent of one third and therefore does not constitute assets to be taken into account within the meaning of Section 12 Paragraph 1 of the German Social Code, Book II (SGB II).
Accordingly, the further question of whether the real estate share would be obviously uneconomical or would constitute a particular hardship for the person concerned (§ 12 para. 3 sentence 1 no. 6 SGB II) is no longer relevant.
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – Freiburg Social Court, Judgment of April 15, 2011, – S 6 AS 3782/09 –, Appeal allowed
Prior instruction regarding the specific amount of water consumption deemed appropriate by the service provider is unnecessary if the consumption is significantly above the limit (here: more than three times the limit).
The annual average per capita water consumption in Germany, as determined by the Federal Statistical Office, can be used as a benchmark for the reasonableness of water consumption costs. If this benchmark is exceeded, there is reason to assume that the costs are unreasonable. It is then incumbent upon the person seeking assistance to explain specifically why their water consumption exceeds the benchmark, yet the costs should still be considered reasonable in their particular case.
The Federal Social Court has already ruled that, when reducing housing costs to a reasonable level according to Section 22 of the German Social Code, Book II (SGB II), it is generally sufficient, based on the understanding of a reasonableness provision, for the person in need of assistance to be aware of the reasonable rent and the consequences of failing to reduce costs. Consequently, the responsible agency need not provide any further information beyond this. More detailed instructions are unnecessary – also from the perspective of legitimate expectations. The person in need of assistance is free, within the scope of their own responsibility, to request further details from the benefit provider if they require more information – for example, how the amount is calculated in detail (Federal Social Court, Judgment of March 19, 2008 – B 11b AS 41/06 R, para. 21). According to the established case law of the Federal Social Court, the person in need of assistance must therefore only be attributably aware that he or she has an obligation to take cost-cutting measures (see BSG, Judgment of 17.12.2009 – B 4 AS 19/09 R, para. 15).
3.2 – Social Court Dortmund Judgment of 09.03.2011, – S 57 (37) AS 129/09 –
The costs of furnishing a new apartment after leaving a women's shelter are generally the responsibility of the social welfare agency in whose local jurisdiction the apartment to be furnished is located, because the need for initial furnishings for the apartment only arises with the actual move (see Social Court Stade, decision of August 24, 2010, file no.: S 17 AS 613/10 ER, published in juris, with further references; Münder in: LPK-SGB II, 3rd edition, § 23 para. 47; contra Social Court Aachen, judgment of July 20, 2007, file no.: S 8 AS 17/07; No. 4 of the decree of the Ministry of Labor, Health and Social Affairs of the State of North Rhine-Westphalia of July 7, 2009, file no.: II B 4 – 3761; Schoch in: LPK-SGB II, 3rd edition, § 36 a para. 8).
Assuming a fundamental obligation on the part of the local authority at the place of residence to provide services in accordance with Section 23 Paragraph 3 No. 1 of the German Social Code, Book II (SGB II), there is no particular burden on the municipalities that operate women's shelters (see also Krauß in: Hauck/Noftz, SGB II, Section 36a, marginal note 11).
4. Decisions of the State Social Courts on Social Assistance (SGB XII)
4.1 – North Rhine-Westphalia State Social Court, Judgment of 12 May 2011, – L 9 SO 105/10 –
Incarcerated persons seeking assistance are entitled to have their rent payments covered pursuant to Section 68 Paragraph 1 Sentence 1 of the German Social Code, Book XII (SGB XII), only if they are serving a short-term prison sentence (of less than one year; see the decision of the adjudicating Senate of 19 May 2005, L 9 B 9/05 SO ER).
The consequence of this, however, is that in principle another form of assistance (dissolution of the apartment and storage of personal belongings at the expense of the social welfare provider) must be found (cf. Blüggel in: jurisPK-SGB XII, 1st ed. 2010, § 68 Rn. 25 with further references).
++ Note: See the decision of the Berlin-Brandenburg State Social Court 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.
4.2 – North Rhine-Westphalia State Social Court, Judgment of March 31, 2011, L 9 SO 45/09 –, appeal pending before the Federal Social Court under file number: B 8 SO 11/11 R
Section 133a of the German Social Code, Book XII (SGB XII) stipulates that for persons who were entitled to an additional cash payment under Section 21 Paragraph 3 Sentence 4 of the Federal Social Assistance Act (BSHG) on December 31, 2004, this benefit will continue to be provided in the amount determined for December 2004.
This provision, as a transitional norm, takes into account the rule-of-law principle of the protection of legitimate expectations and thus the principle of proportionality. Its purpose was therefore solely to ensure that those persons who had already made practical adjustments based on the existing regulation retained the increased cash amount (Federal Social Court, Judgment of 26 August 2008, B 8/9 B SO 10/06 R, para. 24; Bundestag Printed Matter 15/3977, p. 7).
From this purpose and the wording "continued" in Section 133a of the German Social Code, Book XII (SGB XII), it can be concluded that an interruption leads to the exclusion of the entitlement. The additional cash amount is therefore dependent on the continued existence of the entitlement to the cash amount in principle (Armbrost in LPK-SGB XII, Section 133a, marginal note 3; Falterbaum in Hauck/Noftz, K Section 133a SGB XII; regarding the foregoing, see also: judgment of the deciding Senate of February 18, 2010, L 9 SO 33/08; pending before the Federal Social Court under file number: B 8 SO 16/10 R).
5. Harald Thomé: Presentation slides on ALG II / Status: May 29, 2011
6. The latest case law on the Social Code (SGB I to SGB XII) is now presented in a highly topical, brilliant and concise manner on the new website of RA Ludwig Zimmermann.
www.hartz4-rechtsanwalt.de (pdf)
Note: Our next free legal advice session for all Berliners regarding SGB II/SGB XII will take place on June 8, 2011, from 1:00 PM to 5:00 PM.
Hotline: 030-77904177
Please also note our free consultation days at our office at Garnstraße 29, 14482 Potsdam. You can receive free advice from us there on the first and last Tuesday of each month between 2 pm and 6 pm.
The next consultation days are on June 7th and June 21st, 2011.
Please register in advance by telephone at 0331 – 270 9271 or by email at turley-potsdam@t-online.de .
Note: Our last free legal consultation on June 1, 2011 was a complete success, but marked by sadness and tears from the people, because thousands of benefit recipients are threatened with forced relocation; 95% of all clients had received a cost-reduction request.
Anyone receiving benefits is strongly advised to seek legal assistance if the job center issues a rent increase or a request to reduce costs.
According to Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), housing costs are covered in the amount of the actual expenses, provided these are reasonable. Thus, unlike with the standard lump-sum benefit, the legislator is initially guided by the principle of individual justice with regard to housing costs, stipulating that the actual housing costs be taken into account (see Federal Social Court (BSG) judgment of October 19, 2010, – B 14 AS 15/09 R –).
These costs are, in principle, reimbursable. However, the actual costs are not reimbursable in any amount, but only to the extent that they are reasonable. The reasonableness test thus limits the amount of reimbursable costs. This reasonableness test is not at the discretion of the administration. Rather, further specifications are required, which, based on the general principle of equality, must be made according to uniform criteria. Furthermore, the rule of law requires the reliability and predictability of this limitation (see BSGE 104, 192 = SozR 4-4200 § 22 No. 30, para. 12).
The implementing regulations (AV-Wohnen) used by the job centers to determine a reasonable price per square meter within the local comparative standard (of the entire city of Berlin) are not suitable for determining the reasonable costs of accommodation, because they are not based on a coherent concept that offers sufficient assurance that it reflects the current conditions of the local housing market.
According to the product theory, the appropriate price per square meter must include not only the net rent but also, as stated in Section 22 Paragraph 1 of the German Social Code, Book II (SGB II), the so-called "cold operating costs" (or "cold operating costs"). These costs, unlike heating costs, are not subject to separate assessment of their appropriateness. For the assessment of appropriateness, it seems reasonable to refer to local overviews and, in this respect, to the resulting average values for all cost categories covered by the German Operating Costs Ordinance. Cold operating costs are primarily determined by regional characteristics. In contrast, it does not appear necessary to further differentiate cold operating costs based on the location of the property, as the amount of these costs is largely independent of the location. Only if no regional overviews are available can the German Tenants' Association's operating cost index be used (see Federal Social Court [BSG], Judgment of October 19, 2010, – B 14 AS 50/10 R –).
7. Guidelines of the German Association on data transfer in the context of advisory services (SGB II and SGB XII) [1] dated 23.03.2011
I. Problem Statement
Advisory services provided under the German Social Code, Book II (SGB II) and Book XII (SGB XII), are tailored to specific life situations – the most common types being debt counseling, psychosocial support, addiction counseling, and homelessness counseling – and are subject to tensions between obligations to cooperate and data protection. The following information aims to clarify the issues that arise in the three-way relationship under social law when the benefit provider arranges for commercial or non-profit organizations or services (service providers) to provide advice to the individual concerned [2] (benefit recipient).
In the process of receiving benefits, the beneficiary is in both a social law relationship ("benefit relationship") with the benefit provider and an advisory relationship with the service provider. The importance of data protection in the social law relationship is addressed by the data protection law regulated in Section 35 Paragraph 1 of the German Social Code, Book I (SGB I), in conjunction with Sections 67 et seq. of the German Social Code, Book X (SGB X), which applies to publicly organized benefit providers. For the advisory relationship, the relevant Federal Data Protection Act (BDSG) or church data protection law applies, as applicable to commercial or non-profit service providers. From a data protection perspective, the third line in the social benefits triangle, which runs from the benefit provider to the service provider, is often considerably more sensitive for those affected. Due to the contractual relationship, benefit providers frequently have expectations regarding this third line. They establish an interest in receiving personal information about the beneficiaries from the service providers – as a kind of reciprocal service – arising from the advisory relationship. This is intended to make the further course of assistance and benefit processes more manageable for them as service providers and to achieve a life-situation-specific, appropriate integration – in the case of SGB II, into employment.
Responsible officer at the German Association: Gottfried Eichhoff. The guidelines on data transmission in advisory services were developed by the working group "Data Protection in Advisory Services" and reviewed by the working group "Basic Income Support and Social Assistance" as well as the expert committee "Social Policy, Social Security, Social Assistance"; they were adopted by the Presidium of the German Association on March 23, 2011.
[1] The guidance does not apply to benefits under Chapters Six and Seven of the Social Code XII. [2] For the sake of linguistic simplification, gender-specific terms are regularly used in their basic form below; the basic form includes men and women.8th Circular on War Victims' Welfare and the Effects of the Amendment to the German Social Code, Book II (SGB II) and Book XII (SGB XII)
The Federal Ministry of Labour and Social Affairs (BMAS) is examining the effects of the law on determining standard needs and amending the Second and Twelfth Books of the Social Code as of January 1, 2011.
The Federal Ministry of Labour and Social Affairs (BMAS) provides information and implementation guidelines for the Act on the Determination of Standard Needs and the Amendment of Books Two and Twelve of the Social Code of 24 March 2011 (Federal Law Gazette I, p. 453). This already takes into account the agreements reached by the Federal Ministry of Labour and Social Affairs with the leading municipal associations and the federal states at the "Round Table – Implementation of the Education and Participation Package" of 21 April 2011, which are being implemented by the Act Amending the Federal Supply Act and Other Regulations.
Further information
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
