1.1 – BSG, judgment of April 6, 2011, – B 4 AS 117/10 R-
Long-term unemployed people undergoing further training are entitled to mileage allowance for the journey there and back to their internship.
The basis for the claim for reimbursement of travel costs 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 on the extent of the travel costs to be reimbursed is based exclusively on the provisions of SGB III if the measure itself - as here - has been approved as a further training measure in accordance with Section 77 SGB III. According to Section 16 Paragraph 1 Sentence 2 SGB II, whether the approval is granted is at the discretion of the basic social security provider, but the granting of travel expenses reimbursement is, as a result of the basic decision, a bound decision in accordance with Section 81 SGB III.
As far as the scope of reimbursement of travel expenses is concerned, there is no deviating regulation within the meaning of Section 16 Paragraph 2 Sentence 1 SGB II in the basic security law. An analogous application of Section 6 Paragraph 1 No. 3b Alg II-V is ruled out. There is already an unplanned gap with regard to the reimbursement of travel expenses in SGB II.
2. Decisions of the state social courts on basic security for job seekers (SGB II)
2.1 – State Social Court of North Rhine-Westphalia, judgment of May 16, 2011, – L 19 AS 2202/10 50 -, appeal permitted
50 square meters of living space for single Hartz IV recipients
++ Note: From the Thomé newsletter from May 19, 2011
19th Senate of the LSG NRW recognizes 50 square meters for a single person
In North Rhine-Westphalia, the ministry has been running a trick for a long time that, contrary to clear BSG case law, only 45 square meters are used as appropriate accommodation costs for single ALG II recipients. This ministerial legal position has so far been covered by the 9th Senate of the LSG NRW. More about this at: Accommodation costs in NRW: Ministry tricks to the detriment of those affected. As of May 16, 2011, the 19th Senate of the LSG NRW decided that 50 square meters of living space should be appropriately taken into account for a single person in ALG II. The 19th Senate considers it incomprehensible to stick to a superseded and no longer effective regulation, even though a successor regulation has come into force (see also Federal Social Court of September 22, 2009 - B 4 AS 70/08). He is rightly opposing the decision of his colleagues (LSG NRW from May 16, 2011 - 19 AS 2202/10). The text of the verdict is not yet available, but it was reported in advance by those involved. This should finally start a new round of debate about appropriateness. It would also be appropriate for the red/green state government to position itself on the rip-off of Hartz IV and SGB XII recipients. Same tenor just grade SG Duisburg v. February 22, 2011, – S 17 AS 1907/10-.
2.2 – State Social Court of North Rhine-Westphalia decision of May 27, 2011, – L 12 AS 522/11 B ER –
According to Section 86b Paragraph 1 Sentence 1 No. 2 SGG, the court in the main case can, upon request, order the suspensive effect in whole or in part in cases in which an objection or an action for annulment does not have a suspensive effect.
Such an application is justified if a balance of interests shows that the applicant's private interest in establishing the suspensive effect must be given priority over the general public's interest in immediate implementation (represented by the respondent). It should be noted that the legislature has generally ordered immediate enforcement (Section 39 No. 1 SGB II). There is only reason to deviate from this if, in an individual case, there are strong arguments for a reversal of the legislatively adopted rule, i.e. there are special circumstances which, in exceptional cases, allow the private interest of the person affected by the administrative act to come to the fore (LSG NRW, decision of August 13, 2010 - L 6 AS 999/10 B ER – paragraph 24).
If the outcome of the main proceedings is therefore unclear, the necessary weighing of consequences at the relevant time of the Senate's decision will be to the detriment of the applicant. At this point in time, serious and irretrievable disadvantages, which the decision in the main case could no longer be able to subsequently eliminate, are not apparent from the files and have not been asserted by the applicant. In light of the requirement of effective legal protection enshrined in Article 19 Paragraph 4 of the Basic Law, the applicant can therefore be expected to wait for the decision on the main matter (see also LSG NRW, decision of August 13, 2010 - L 6 AS 999/10 B ER – para. 30; LSG NRW, 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 August 13, 2010 - L 6 AS 999/ 10 B ER - paragraph 30; LSG NRW, decision of December 21, 2009 - L 19 B 277/09 AS - paragraph 14).
Furthermore, it should be borne in mind that the respondent would only be able to realize his claim for repayment with difficulty if he provisionally (back) paid the benefits and later won the main case. As a result, the awarding of benefits would create a situation whose (economic) effects would be equivalent to anticipation in the main in favor of the applicant (also LSG NRW, decision of August 13, 2010 - L 6 AS 999/10 B ER - para .30).
2.3 – State Social Court of North Rhine-Westphalia decision of May 17, 2011, – L 6 AS 356/11 B ER –
As part of the assessment of the consequences, the applicants (Romanians) must be granted benefits in accordance with SGB II.
The question that cannot be conclusively clarified in the interim legal protection proceedings is whether the exclusion of benefits in Section 7 Paragraph 1 Sentence 2 No. 2 SGB II (exclusion of benefits if the right of residence arises solely from the purpose of looking for work) affects the applicant . According to the Senate's previous considerations, there are considerable doubts as to whether the exclusion of benefits in this provision is compatible with the Community law of the European Union (as already stated by the ruling Senate of February 26, 2010 - L 6 AS 154/09 AS ER; see also LSG NRW Resolution of February 17, 2010 - L 19 B 392/09 AS ER; LSG Berlin-Brandenburg Resolution of January 11, 2010 - L 25 AS 1831/09 B ER; LSG Bayern Resolution of May 4, 2009 - L 16 AS 130/09 B ER ; in the literature: Valgolio in Hauck/Noftz § 7 Rn 30; Spellbrink in Eicher/Spellbrink, aaO, § 7 Rn 17 with further references; Löns in Löns/Herold-Tews, SGB II, 2nd edition 2009, § 7 Rn 13 mwN; Brühl/Schoch in LPK-SGB II, 3rd edition 2009, § 7 Rn 36 mwN; Schreiber, info also 2008, 3 ff, info also 2009, 195 ff.; Husmann, NZW 2009, 652, 656; aA LSG Berlin-Brandenburg, resolution of December 23, 2009 - L 34 AS 1350/09 B ER and resolution of June 8, 2009 - L 34 AS 790/09 B ER; LSG Niedersachsen-Bremen resolution of September 29, 2009 - L 15 AS 905/ 09 B ER; negating European law violations for economically inactive Union citizens: Hessian LSG decision of October 14, 2009 - L 7 AS 166/09 B ER)
2.4 – State Social Court of North Rhine-Westphalia decision of May 18, 2011, – L 7 AS 619/11 B –
Moving costs must be applied for before the move takes place.
Because the claim according to Section 22 Paragraph 3 of the Second Book of the Social Code (SGB II) fundamentally requires a positive takeover decision before contractual justification of the expenses to be assumed due to the assurance requirement beyond the application principle (Section 37 SGB II).
The decisive factor is the conclusion of the contract with the moving company (Lang-Link, Commentary on SGB II, 2nd edition 2008, § 22 Rn. 82; Berlit in LPK-SGB II, 3rd edition 2009, § 22 Rn. 105 f.) . The prior assurance of moving costs can only be waived if a possible timely decision has been delayed by the administrative body in breach of trust (BSG, judgment of May 6, 2010 - B 14 AS 7/09 Rn. 13).
2.5 - Hessian State Social Court judgment of March 23, 2011, - L 6 AS 382/07 -
If a serious attempt has been made to dissolve the community of heirs, no further demands are made from the HB and it must remain the case that one third of his ideal share is not usable and is therefore not an asset to be taken into account within the meaning of Section 12 Paragraph 1 SGB II represents.
Accordingly, the further question of whether utilization of the real estate share would be obviously uneconomical or would cause particular hardship for the person concerned (Section 12 Paragraph 3 Sentence 1 No. 6 SGB II) is no longer relevant.
3. Decisions of the social courts on basic security for job seekers (SGB II)
3.1 - Freiburg Social Court judgment of April 15, 2011, - S 6 AS 3782/09 -, appeal permitted
Prior information about the specific level of water consumption considered appropriate by the service provider is unnecessary if the consumption is significantly above the limit (here: more than three times).
The annual average value of per capita water consumption in Germany determined by the Federal Statistical Office can be used as the appropriate limit for water consumption costs. If this limit is exceeded, there is reason to assume inappropriateness. It is then the responsibility of the person seeking help to specifically explain why their water consumption is above the limit, but the costs should still be considered reasonable in each individual case.
The Federal Social Court has already decided that when reducing accommodation costs to the appropriate level in accordance with Section 22 SGB II, from the understanding of a reasonableness regulation, it is usually sufficient that the person in need of help knows the appropriate rent and the consequences of a lack of cost reduction. Consequently, nothing more needs to be the subject of a notice from the responsible institution. Further instructions for action are unnecessary – also from the point of view of protecting trust. The person in need of help is free, within the framework of acting independently, to ask the service provider for further details - for example how the amount is calculated in detail - if further information is required (BSG, judgment of March 19, 2008 - B 11b AS 41/06 R, Rn . 21). According to the established case law of the Federal Social Court, the person in need of help must therefore only have reasonable knowledge that he is obliged to take cost-cutting measures (cf. BSG, judgment of December 17, 2009 - B 4 AS 19/09 R, Rn. 15) .
3.2 – Dortmund Social Court judgment of March 9, 2011, – S 57 (37) AS 129/09 –
The service provider in whose local area of responsibility the apartment to be equipped is located is generally responsible for the costs of initially furnishing a new apartment after leaving the women's shelter, because the need for initial furnishings for the apartment only arises with the actual move (cf. Stade Social Court, decision of 08/24/2010, Ref.: S 17 AS 613/10 ER, published in juris, mwN; mouths in: LPK-SGB II, 3rd edition, § 23 para. 47; a. A. Aachen Social Court, judgment of July 20th. 2007, Ref.: S 8 AS 17/07; No. 4 of the decree of the Ministry of Labor, Health and Social Affairs of North Rhine-Westphalia dated July 7, 2009, Ref.: II B 4 - 3761; Schoch in: LPK-SGB II, 3rd edition, § 36a para. 8).
If one assumes a fundamental obligation of the municipal authority in the place of immigration to provide services in accordance with Section 23 Paragraph 3 No. 1 SGB II, there is no particular burden on the municipalities that operate women's shelters (also Krauß in: Hauck/Noftz, SGB II, § 36 a paragraph 11).
4. Decisions of the state social courts on social assistance (SGB XII)
4.1 – State Social Court of North Rhine-Westphalia judgment of May 12, 2011, – L 9 SO 105/10 –
Imprisoned people seeking help are (only) entitled to have rent payments taken over in accordance with Section 68 Paragraph 1 Sentence 1 SGB B 9/05 SO HE).
The consequence of this, however, is that a different form of help (clearing the apartment and storing personal belongings at the expense of the social welfare provider) must then be found (see Blüggel in: jurisPK-SGB XII, 1st edition 2010, § 68 Rn. 25 mN).
++ Note: See Berlin-Brandenburg State Social Court decision of April 15, 2011, – L 14 AS 218/11 B ER –
For a prisoner whose release from prison cannot be foreseen with certainty, accommodation costs for maintaining the apartment are not to be borne under the provisions of SGB II or SGB XII; Duration of imprisonment approx. 10 months.
4.2 - State Social Court of North Rhine-Westphalia judgment of March 31, 2011, L 9 SO 45/09 -, revision pending at the BSG under the AZ.: B 8 SO 11/11 R
The regulation of Section 133a SGB
As a transitional standard, this provision takes into account the constitutional principle of the protection of legitimate expectations and thus proportionality. With this, only people who had already actually adjusted to the existing regulation should be able to retain the increased cash amount (BSG, judgment of August 26, 2008, B 8/9 B SO 10/06 R, Rn. 24; BT-Drs . 15/3977, p. 7).
From this purpose and the wording further provided in Section 133a SGB XII it can be concluded that an interruption leads to the exclusion of claims. The additional cash amount therefore depends on the continued existence of the entitlement to the cash amount (Armbrost in LPK-SGB XII, § 133a Rn. 3; Falterbaum in Hauck/Noftz, K § 133a SGB dated February 18, 2010, L 9 SO 33/08; pending at the BSG under the AZ.: B 8 SO 16/10 R).
5. Harald Thomé: Slide presentation ALG II / Status: May 29, 2011
6. The latest case law on the Social Security Code (SGB I to SGB
www.hartz4-rechtsanwalt.de (pdf)
Note: Our next free legal advice for all Berliners on SGB II/SGB XII will take place on June 8th, 2011 from 1:00 p.m. to 5:00 p.m.
Hotline: 030-77904177
Please also pay attention to our free consultation days in our office at Garnstrasse 29, 14482 Potsdam. You can get free advice from us there on the first and last Tuesday of each month between 2 p.m. and 6 p.m.
The next consultation days are on June 7th and June 21st, 2011.
Please contact us in advance by telephone at Tel. 0331 – 270 9271 or by email at turley-potsdam@t-online.de .
Note: Our last free legal advice on June 1st, 2011 was a complete success, but was marked by sadness and tears from people, because thousands of benefit recipients are threatened with being forced to move, and 95% of all clients had received a request to reduce costs.
It is strongly recommended that every benefit recipient seek legal help in the event of a rent increase or cost reduction request from the job center.
In accordance with Section 22 Paragraph 1 Sentence 1 SGB II, the costs of accommodation are paid in the amount of the actual expenses, provided these are appropriate. In this way, unlike the flat-rate standard benefit, the legislature is initially guided by the principle of fairness in individual cases when it comes to accommodation costs, by ordering that the actual accommodation costs be taken into account (cf. BSG judgment of October 19, 2010, - B 14 AS 15/09 R-).
In principle, these must be reimbursed. However, the actual costs cannot be reimbursed in any amount, but only to the extent that they are reasonable. The appropriateness test therefore limits the amount of reimbursable costs. The adequacy test is not at the discretion of the administration. Rather, further specification is required, which must be made according to uniform criteria due to the general principle of equality. On the other hand, the rule of law principle requires that the limitation be reliable and predictable (cf. BSGE 104, 192 = SozR 4-4200 § 22 No. 30, RdNo. 12).
The implementation regulations (AV-Wohnen) used by the job centers to determine an appropriate price per square meter within the local comparative scale (the entire urban area of Berlin) are not suitable for determining the appropriate costs of accommodation because they are not based on a coherent concept that provides sufficient guarantees that it reflects the current conditions of the local housing market.
In the sense of the product theory, in addition to the net rent, the appropriate price per square meter must also include the so-called cold operating costs according to the wording of Section 22 Paragraph 1 SGB II; Like heating costs, these do not need to be checked separately for their appropriateness. For the adequacy control, it seems appropriate to use local overviews and the resulting average values of all cost types underlying the Operating Costs Ordinance. Cold operating costs are determined primarily by regional characteristics. On the other hand, it does not appear necessary to further differentiate between cold operating costs depending on the residential area because the level of operating costs is largely independent of the residential area. Only if no regional overviews are available can the operating cost table of the German Tenants' Association be used (see BSG, judgment of October 19, 2010, - B 14 AS 50/10 R -).
7. Information from the German Association on data transmission for consulting services (SGB II and SGB XII) [1] from March 23, 2011
I. Problem statement
Advisory services that are provided in the legal circles of SGB II and SGB The following information aims to clarify the questions that arise in the social law triangular relationship when the service provider arranges for commercial or non-profit institutions or services (service providers) to act to advise the person affected [2] (beneficiary).
In the process of providing the service, the beneficiary is then in both a social law relationship (“service relationship”) with the service provider and in an advisory relationship with the service provider. The importance of data protection in social law relationships is taken into account by the data protection law regulated in Section 35 Paragraph 1 SGB I in conjunction with Sections 67 ff. SGB X, which applies to service providers organized under public law. The BDSG or ecclesiastical data protection law applicable to the commercial or non-profit service providers applies to the advisory relationship. From a data protection perspective, the non-transparent third line in the triangular relationship under social benefit law, which leads from the service provider to the service provider, is often much more sensitive for those affected. High performers often associate expectations with this line due to the contractual relationship. They justify the interest in receiving personal information about those affected from the advisory relationship from the service providers - in return, so to speak. This is intended to make it easier for them as service providers to control the further course of assistance and benefit processes and to ensure that they are integrated appropriately according to their life situation - which is in progress in SGB II.
Responsible speaker in the German Association: Gottfried Eichhoff. The information on data transmission for consulting services was developed by the “Data Protection for Consulting Services” working group and was advised by the “Basic Security and Social Welfare” working group and the “Social Policy, Social Security, Social Welfare” specialist committee; They were adopted by the Presidium of the German Association on March 23, 2011.
[1] The information does not refer to services within the scope of the sixth and seventh chapters of SGB XII. [2] In the following, gender-specific terms are regularly used in their basic form for linguistic simplification; the basic form includes men and women.8. Circular on war victim care and effects of the amendment to SGB II and SGB XII
The BMAS deals with the effects of the law on determining standard needs and amending the Second and Twelfth Books of the Social Security Code from January 1, 2011.
The BMAS provides information and implementation instructions on the law for determining standard needs and for amending the Second and Twelfth Books of the Social Code of March 24, 2011 (BGBl. I, 453). The agreements between the Federal Ministry of Labor and Social Affairs and the municipal associations and states at the "Round Table - Implementation of the Education and Participation Package" of April 21, 2011, which are implemented with the law amending the Federal Pension Act and other regulations, are already taken into account.
Further information
Source Tacheles jurisprudence ticker, www.tacheles-socialhilfe.de
