1.1 – BSG, Judgment of 06.04.2011, – B 4 AS 5/10 R-
The action for performance brought by HB, correctly seeking to establish whether proof of a concrete offer to conclude a lease agreement can be required as a prerequisite for an assurance, has become inadmissible at the latest in the appeal proceedings.
The legal interest in obtaining this assurance has ceased to exist. Because HB has since moved, the subject matter of any potential assurance must now be decided in separate legal proceedings concerning the amount of housing costs. The claim in those proceedings must be pursued as a combined action for annulment and performance. As a preliminary issue, the necessity of the move must necessarily be determined in these proceedings. Against this background, there is no longer any legal interest in obtaining a separate assurance as a preliminary partial settlement.
The desired clarification of the legal question of whether the abstract necessity of a move can also be the subject of an assurance can only be clarified on the basis of a concrete set of facts.
According to Section 22 Paragraph 2 Sentence 1 of the German Social Code, Book II (SGB II), employable individuals in need of assistance must obtain a commitment from the local authority previously responsible for providing benefits regarding the costs of the new accommodation before concluding a lease agreement. According to Section 22 Paragraph 2 Sentence 2 of the SGB II, the local authority is only obligated to issue this commitment if the move is necessary and the costs of the new accommodation are reasonable. Section 22 Paragraph 2 Sentence 2 of the SGB II thus establishes two factual prerequisites for issuing such a commitment. A separate determination of the necessity of moving out is not required. As an administrative act preceding the granting of benefits, a commitment can, in principle, only regulate matters that could also be specifically addressed by a subsequent administrative act. With regard to the costs of accommodation and heating, this concerns the actual provision of SGB II benefits at a specific level, not the determination of eligibility for a higher benefit entitlement. The appropriateness of the costs of accommodation and heating is not to be assessed abstractly, but rather on a case-by-case basis (Federal Social Court judgment of November 7, 2006 – B 7b AS 18/06 R – BSGE 97, 254, 257 f = SozR 4-4200 § 22 No. 3). According to the wording of the law and the intent of the legislator, the administrative act of assurance should be obtained "regarding the expenses for the new accommodation" (Bundestag printed matter 15/1516, p. 57). In order for an individual ruling pursuant to Section 31 of the German Social Code, Book X (SGB X) to be made, the future accommodation costs must be determined in terms of amount (see Krauß in Hauck/Noftz, SGB II, Section 22, marginal note 104, as of September 2009; contra Lauterbach in Gagel, SGB II/SGB III, Section 22, marginal note 72, as of January 2009), i.e., a housing offer specifying the location of the apartment and the costs to be incurred must be available. Only then can the assurance be directed at the concrete anticipation of a future administrative act. There is also no entitlement to the issuance of an assurance pursuant to Section 34 Paragraph 1 of the German Social Code, Book X (SGB X), because Section 22 Paragraph 2 of the German Social Code, Book II (SGB II) contains a special provision that is conclusive compared to Section 34 Paragraph 1 of the German Social Code, Book X (SGB X), which expresses that an early commitment of the SGB II provider, independent of the expenses for the new accommodation, solely with regard to the criterion of "necessity" within the meaning of Section 22 Paragraph 2 of the German Social Code, Book II (SGB II), should not be possible.
1.2 – BSG, Judgment of 06.04.2011, – B 4 AS 16/10 R-
A separate contractual recording of hot water preparation costs according to a general calculation key does not automatically mean that these costs no longer have to be covered.
Only to the extent that the standard benefit is intended to cover the costs of hot water preparation on a flat-rate basis, a deduction can be made to the detriment of the person in need of assistance due to otherwise existing double coverage of needs.
When applying Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), those actual expenses of the person in need of assistance are generally eligible for consideration as costs of accommodation and heating that are based on an agreement made with the landlord and are actually paid by the person in need of assistance (cf. regarding ancillary costs which by their nature are listed in Section 2 of the German Operating Costs Ordinance).<BetrKV> The following must be listed: Federal Social Court (BSG) judgment of 19 February 2009 – B 4 AS 48/08 R, BSGE 102, 274 ff = SozR 4-4200 § 22 No. 18 para. 16; see also Federal Social Court (BSG) judgment of 19 March 2008 – B 11b AS 23/06 R, SozR 4-4200 § 24 No. 3 para. 24). It is generally sufficient that the person in need of assistance is subject to a serious rent claim (Federal Social Court judgment of 22 September 2009 – B 4 AS 8/09 R, BSGE 104, 179 ff = SozR 4-4200 § 22 No. 24 para. 16; Federal Social Court judgment of 7 May 2009 – B 14 AS 31/07 R, SozR 4-4200 § 22 No. 21 para. 16). Accordingly, the assumption of expenses for hot water preparation, together with the costs for heating, is initially based on the actual circumstances. If district heating is provided as a single unit for heating and hot water, and therefore a clear separation of the actual expenses according to the costs for hot water preparation contained in Section 20 of the German Social Code, Book II (SGB II) and the expenses for heating to be provided according to Section 22 of the SGB II is not actually possible (Lang/Link in Eicher/Spellbrink, SGB II, 2nd edition 2008, Section 22, marginal note 34), the expenses of the person in need of assistance for hot water, as an indeterminable component, must also be assessed together with those for heating and are therefore, in principle, reimbursable in the amount actually owed (see also Hölzer in Sozialrecht aktuell 2009, 14, 15).
According to the jurisprudence of the two senates of the Federal Social Court (BSG) responsible for basic income support for jobseekers, the costs of hot water preparation, which are included in the actual costs of accommodation and heating in an amount that cannot be specifically determined, must be deducted because the latter are part of the standard benefit and are therefore already covered by the benefit under Section 20 of the German Social Code, Book II (SGB II) (BSG judgment of February 27, 2008 – B 14/11b AS 15/07 R, BSGE 100, 94 ff = SozR 4-4200 § 22 No. 5, paragraphs 20 ff; BSG judgment of February 19, 2009 – B 4 AS 48/08 R, BSGE 102, 274 ff = SozR 4-4200 § 22 No. 18, paragraph 24; BSG judgment of June 25, 2008 – B 11b AS 35/06 R RdNr 22).
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – North Rhine-Westphalia State Social Court, decision of June 14, 2011, – L 7 AS 430/11 B –
If a move is necessary, there is a right to approval for cost coverage before the move in an expedited procedure
In its decision of June 14, 2011, the Higher Social Court of North Rhine-Westphalia (case no. L 7 AS 430/11 B) ruled that, in the case of a necessary move (here, the birth of the second child), those in need of assistance are entitled to approval for the assumption of costs prior to the move in expedited proceedings (contrary to the opinion of the Higher Social Court of North Rhine-Westphalia, decision of January 17, 2011 – L 6 AS 1914/10 B ER – “No entitlement to approval for the assumption of costs prior to the move in expedited proceedings”).
Granting of legal aid is not permissible, because, taking into account the requirement of effective legal protection in the event of a necessary relocation, it is unreasonable to expect the beneficiary to move at their own risk of costs without the question of cost coverage having been clarified (at least provisionally).
While in the main proceedings the responsible authority can be ordered to retroactively cover the costs of the new apartment, even without prior assurance, provided the apartment is deemed reasonable, in the meantime the benefit recipient would have to pay the portion of the rent not covered by the benefit provider themselves to prevent the landlord from terminating the lease due to rent arrears. Depending on the amount of rent they would have to pay themselves, this might not be feasible for the benefit recipient given the length of the main proceedings.
In particular, given the birth of their second child, it was unreasonable to expect the applicants to await a final decision on the merits before moving. While a commitment is not a prerequisite for the reimbursement of actual costs under Section 22 Paragraph 1 of the German Social Code, Book II (SGB II) after a move, if the move is necessary and the costs of the new accommodation are reasonable, these costs must be paid by the benefits provider even without a commitment. The commitment procedure stipulated in Section 22 Paragraph 2 of the SGB II (now Section 22 Paragraph 4 of the SGB II) is not constitutive for the subsequent entitlement to benefits. It serves solely an informational and warning function (Berlit in LPK-SGB II, 3rd edition 2009, Section 22, marginal note 79).
This point, however, does not justify denying the urgency of the matter (contrary to the opinion of the Higher Social Court of North Rhine-Westphalia, decision of January 17, 2011, L 6 AS 1914/10 B ER). If the requirements of Section 22 Paragraph 2 of the German Social Code, Book II (SGB II), applicable at the time, are met, there is a legal entitlement to a commitment to cover the costs of the new accommodation. However, this entitlement only applies to a specific housing offer, meaning that the apartment would likely be rented out to someone else after the conclusion of any main proceedings.
++ Note: See also the decision of the Berlin-Brandenburg State Social Court of 28 February 2011, – L 14 AS 205/11 B ER –
As long as the person in need of assistance is receiving benefits, they will usually be dependent on the basic income support provider covering their accommodation costs (BSG, judgment of May 7, 2009 – B 14 AS 31/07 R –).
Against this background, every employable person in need of assistance is entitled to receive the benefits to which they are legally entitled in a timely manner, enabling them to fulfill their contractual obligations to their landlord in a timely manner. The risk of eviction, legal proceedings for late rent payment (with the associated costs), or even an eviction lawsuit is generally unreasonable for them (most recently, the Senate's decision of August 31, 2010 – L 14 AS 1263/10 B ER –).
Accordingly, grounds for an order will regularly only be denied if the employable person in need of assistance can cover the actual expenses, at least provisionally, from income (“allowances”) or assets (“protected assets”) that are not to be taken into account.
2.2 – North Rhine-Westphalia State Social Court, decision of June 8, 2011, – L 12 AS 201/11 B ER –
The use of investigation results from an inspection and field service report to verify need and use for housing is permissible.
Contrary to the opinion of the Thuringian Higher Administrative Court (judgment of 25.11.2010 – 3 KO 527/08 -), the use of these investigation results for evidentiary purposes is permissible; the statements of the Bavarian State Social Court (judgment of 25.01.2008 – L 7 AS 72/07 -) are followed.
The Bavarian State Social Court (ibid., juris printout, paras. 45-47) states the following in this regard:
"While it is initially the exception, it is not unprecedented for infringements of fundamental rights to be tolerated for a transitional period without an explicit, specific legal basis. Reference should be made here to the regulation of so-called special power relations; there, until the enactment of the constitutionally mandated statutory provisions, infringements of the fundamental rights of 'institutional users' (primarily students and prisoners) were also accepted on the basis of 'institutional regulations' (BVerwGE 56, 155 with further references). Furthermore, in the area of criminal prosecution, it was sufficient for a very long time to base surveillance on the general rules governing the allocation of tasks. The Federal Court of Justice stated in this regard (BGH, NJW 1998, p. 2561) that, in some legal literature, the admissibility of surveillance was derived from Sections 161 and 163 Paragraph 1 of the Code of Criminal Procedure; these provisions have always permitted measures without coercion." According to another view, Sections 161 and 163 Paragraph 1 of the Code of Criminal Procedure (StPO) do not grant powers for interventions in criminal proceedings; according to this view, conducting surveillance—especially long-term surveillance—would only be permissible after the introduction of a corresponding authorization provision into the Code of Criminal Procedure. The Federal Court of Justice (BGH) has reported the following regarding its own case law: In its decision published in NJW 1991, p. 2561, it expressed doubts, in light of the Federal Constitutional Court's "Census Judgment," as to whether Sections 160, 161, and 163 of the Code of Criminal Procedure—or even the general police powers clause—could cover a total of five months of daily video surveillance of a suspect. In the current case underlying the decision published in NJW 1998, p. 1237, the Federal Court of Justice differentiated, on the one hand, between whether the surveillance infringed upon the scope of protection of Article 13 Paragraph 1 of the Basic Law (GG) or not. Furthermore, he identified an aggravating factor in the video surveillance: it constituted an infringement of the general right to privacy. Given the weeks-long and continuous observation of the defendant as he entered and left his property, this represented a significant investigative measure. This was further supported by the fact that, unlike a human observer, who can typically be subject to impairments in perception and memory, a video camera creates an image of the recorded person free from such limitations, and the recordings can be stored for virtually an indefinite period. Therefore, a specific legal basis under criminal procedure was required for the investigative measure taken.
If one draws conclusions for the present case from the decision of the Federal Court of Justice (BGH) in NJW 1998, p. 1237, one must conclude that there was no particularly intensive and sensitive intrusion. This is because neither the scope of protection of Article 13 Paragraph 1 of the Basic Law (GG) was affected, nor were any video recordings made. However, the aforementioned fact that Section 163 et seq. was inserted into the Code of Criminal Procedure with effect from November 1, 2000, points in a different direction. The observation carried out by the defendant in the present case would also have to be assessed as long-term observation within the meaning of Section 163 et seq. Paragraph 1 Sentence 1 of the Code of Criminal Procedure (planned observation, on more than two days). Even if the element of criminal prosecution is lacking in the present case, it is nevertheless thought-provoking that the legislature has attached relatively strict requirements to the admissibility of such observation.
The scope and intensity of the fundamental rights infringement associated with the measure are of paramount importance. According to the jurisprudence of the Federal Constitutional Court, the decisive factor in this respect is the nature of the infringement of the right to informational self-determination. In this regard, it can also be relevant whether the persons concerned give cause for the measure and what that cause is (see BVerfGE 100, 313; 107, 299; 109, 279; and BVerfG, Decision of the First Senate of April 4, 2006 – 1 BvR 518/02 –, NJW 2006, p. 1939). Suspicionless interventions with a broad scope, in which numerous individuals are included in the sphere of influence of a measure, who have no connection to any specific misconduct and whose behavior did not provoke the intervention, generally constitute a high degree of intrusion (see BVerfGE 100, 313, 107, 299; 109, 279; 113, 348; Federal Constitutional Court, Decision of the First Senate of April 4, 2006 – 1 BvR 518/02 –, NJW 2006, p. 1939). The surveillance in this case was targeted and precise. It was not broad in scope. The private spheres of X. and the plaintiff (1) were only intruded upon to an extremely limited extent in terms of time (only one hour per day), location (only the building entrances), and location (where X. stayed overnight). Specific fundamental rights (Articles 10 and 13 of the Basic Law) were not affected, and no photographs were taken
2.3 – North Rhine-Westphalia State Social Court, decision of 14 June 2011, – L 7 AS 552/11 B –
Granting of legal aid is not possible, as it should be noted that the recommendations of the German Association for Public and Private Welfare (DV) regarding the granting of dietary allowances in social assistance (3rd edition of October 1, 2008, www.deutscher.verein.de) expressly refer to adults; for minors, there is a lack of sufficient data (Social Court Berlin, judgment of November 12, 2010 – S 37 AS 38129/09, para. 29; BA's guidelines on the German Social Code, Book II (SGB II), § 21 SGB II, as of April 11, 2011, 21.23; Münder in LPK-SGB II, Commentary on the German Social Code, Book II (SGB II), 3rd edition 2009, § 21, para. 31).
2.4 – North Rhine-Westphalia State Social Court, decision of 03.06.2011, – L 7 AS 2047/10 B –
Granting of legal aid, because the legal question to be clarified in this case is which measures can be demanded in the event of mold infestation in the apartment and simultaneous presence of a respiratory disease within the framework of making use of reasonable removal options.
2.5 – North Rhine-Westphalia State Social Court, decision of June 7, 2011, – L 7 AS 1217/10 B –
The chance of winning the case must be at least as great as the chance of losing it.
This is generally to be affirmed if the decision on the merits depends on a difficult, previously unresolved legal question or if further investigations must be carried out ex officio pursuant to Section 103 of the Social Court Act (SGG) before the issues in dispute can be definitively answered (Federal Constitutional Court (BVerfG), NJW 1991, 413 ff; BVerfG, NJW-RR 2002, 665 ff; Higher Social Court of North Rhine-Westphalia (LSG NRW), decision of June 29, 2009, file no.: L 20 B 6/09 AS).
2.6 – North Rhine-Westphalia State Social Court, decision of June 7, 2011, – L 7 AS 2042/10 B –
No higher additional needs allowance will be granted to single parents within the framework of benefits already approved under the German Social Code, Book II (SGB II).
According to case law on the predecessor regulation of Section 23 of the Federal Social Assistance Act (BSHG), a different (higher) need is not automatically recognized simply because someone is solely responsible for the care and upbringing of two or three children under the age of seven. The primary reason for the legislature to assume an additional need even for single parents with only one child under seven is apparently their limited mobility, hindering their ability to compare prices and shop with an eye toward cost-effectiveness. This disadvantage does not automatically increase when two or three children under seven need care. A similar principle applies to the higher expenses for maintaining contact and providing guidance on parenting matters, which the legislature generally assumes (see Higher Administrative Court of Lüneburg, judgment of March 27, 1991, case no.: 4 L 227/89, paragraphs 6 et seq.).
2.7 – North Rhine-Westphalia State Social Court, judgment of 16 May 2011, – L 19 AS 2202/10 – Appeal allowed
50 square meters of living space for single recipients of Hartz IV benefits
The appropriate living space within the framework of the product theory is to be determined on the basis of the administrative regulations of the state of North Rhine-Westphalia currently valid during the disputed approval period for the occupancy of subsidized housing (apparently also Berlit, info also 2010, 195 (197)).
According to the established case law of the Federal Social Court (BSG), in the absence of other sources of information, the determination of the limit of appropriateness pursuant to Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), is generally based on the recognized living space sizes for eligible persons in social housing construction and therefore on the regulations applicable to the occupancy of subsidized housing (judgments of October 19, 2010 – B 14 AS 65/09 R, paragraph 22 with further references). The appropriateness of the apartment size is therefore determined by the values issued by the federal states pursuant to Section 10 of the Law on Social Housing Promotion (WoFG) of September 13, 2001, or pursuant to Section 5 Paragraph 2 of the Housing Commitment Act (WoBindG) in the version applicable until December 31, 2001 (Judgment of August 20, 2009 – B 14 AS 41/08 R, para. 15 with further references), whereby the administrative regulations valid in the respective period in dispute must be taken into account (cf. Federal Social Court judgments of September 22, 2009 – B 4 AS 70/08 R, para. 15 and of July 2, 2009 – B 14 AS 33/08 R, para. 15).
The relevant state law implementing provisions for Section 10 of the Housing Promotion Act (WoFG), which are to be used to determine the limit of appropriateness pursuant to Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II) in the state of North Rhine-Westphalia (see Federal Social Court judgment of December 17, 2009 – B 4 AS 27/09 R, paragraph 16), namely No. 5.7 of the Administrative Regulations on the Allocation of Housing (VV-WoBindG), ceased to have effect on December 31, 2009, following the transfer of legislative competence for social housing from the federal government to the federal states – as did the Housing Promotion Act (WoFG). No. 19 sentence 2 of the WNB (MBl. NRW 2010, 1), which were issued for the implementation of parts 4 to 6 of the WFNG NRW of 08.12.2009 (GV NRW 2009, 772) which entered into force on 01.01.2010, stipulates that the VV-WoBindG with the exception of Nos. 8 to 8b.3 and 22 and the Annex shall cease to have effect at the end of 31.12.2009. For the allocation of subsidized housing (see Section 18 of the North Rhine-Westphalia Housing Promotion Act (WFNG NRW), which is the successor provision to Section 27 of the Housing Promotion Act (WoFG) (see Parliamentary Document 14/9394, p. 96)), the living space values specified in No. 8.2 of the Housing Allocation Guidelines (WNB), which replaces the regulation in No. 5.7 of the Administrative Regulations on the Allocation of Housing (VV-WoBindG), are decisive from January 1, 2010. No. 8.2 of the WNB specifies higher values compared to the values according to No. 5.7 of the VV-WoBindG. For example, No. 8.2 of the WNB stipulates a living space of 50 square meters as appropriate for a one-person household, instead of the previous 45 square meters.
The principle remains that, for the determination of the limits of adequacy within the meaning of Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), reference must be made to the administrative regulations of the respective state applicable during the period in dispute for the allocation of subsidized housing, in North Rhine-Westphalia No. 8.2 of the Housing Allocation Regulations (WNB). The Senate is unaware of any other sources of information for determining the appropriate size of living space in the lower segment of the housing market. While the legislator stated in the legislative process for the newly introduced Section 22b SGB II (Law of March 24, 2011, Federal Law Gazette I, p. 453) that in metropolitan areas it can generally be assumed that the apartments occupied by low-income earners are on average smaller than the values stipulated in the currently applicable regulations for subsidized housing (Bundestag Printed Matter 17/3404, p. 101), this does not apply here. However, the sources of information on which the federal legislature relies are not apparent from the Bundestag document or from other documents available to the Senate. Furthermore, the defendant's area of jurisdiction, namely the district of I or the city of I, is not a metropolitan area (see the district profile at www.kreis-I.de/kreisportrait). While the 2010 municipal profile of the city of I (www.nrwbank.de – pdf) indicates an average living space per inhabitant in 2009 of 45.1 square meters in the plaintiff's place of residence, the city of I, which is higher than the average living space per inhabitant in the state of North Rhine-Westphalia (slightly more than 40 square meters), this figure is derived from the total living space of the city of I divided by its population. It does not allow for any conclusions to be drawn about the average size of an apartment occupied by residents in the low-income bracket, broken down by household size. The presentation by the participants also did not provide any further sources of information regarding the appropriate living space size in the lower segment of the housing market.
The legal opinion expressed by the 9th Senate of the North Rhine-Westphalia State Social Court in its decision of April 29, 2010 – L 9 AS 58/08 – in an obiter dictum, that the (now repealed) administrative regulations on the Housing Allocation Act (WoBindG) should continue to be used to determine the appropriate living space for recipients of SGB II benefits even after January 1, 2010, because the legislator did not intend any dynamic adjustment based on housing promotion law at the time of the introduction of SGB II, cannot be followed.
Because the legislator, both when introducing the SGB II and later – despite repeated demands from the social courts – failed to specifically define the appropriate living space for recipients of SGB II benefits, but instead left the interpretation of the term "appropriate costs of accommodation" to the jurisprudence.
In its ruling that the values according to Section 10 of the Housing Promotion Act (WoFG) should be used to determine appropriate living space, the Federal Social Court (BSG) took into account that it is not clear whether the purpose pursued by the appropriateness test under Section 22 of the German Social Code, Book II (SGB II) largely coincides with the purposes of the Housing Promotion Act and the implementing regulations of the federal states. Nevertheless, for reasons of legal certainty and practicality, it considered it justifiable to refer to the values established by the federal states on the basis of Section 10 of the Housing Promotion Act (judgment of September 22, 2009 – B 4 AS 70/08 R, para. 14 with further references) and in each case considered the administrative regulations in force during the period in dispute to be authoritative. Thus, the BSG already assumed that the values could change as a result of amendments to the relevant administrative regulations, and therefore also that they could be subject to dynamic adjustments. It attached paramount importance to the aspect of legal certainty and considered the use of other administrative regulations for determining living space to be justifiable only if current administrative regulations on Section 10 of the Housing Promotion Act do not exist (Judgment of 22 September 2009 – B 4 AS 70/08 R, para. 15).
The WNB, however, is an administrative regulation pertaining to the WFNG NRW, which replaced the WoFG as of January 1, 2010. The Federal Social Court (BSG) based its decision on the established case law of the Federal Administrative Court (BVerwG).
The Federal Administrative Court (BVerwG) has ruled (decision of 22.08.1994 – 5 PKH 32/94; judgment of 17.11.1994 – 5 C 11/93) that the question of the appropriate living space under social assistance law can be answered according to the criteria of eligibility for funding in social housing construction in accordance with the applicable regulations and that the administrative regulations of the Länder on § 5 para. 2 WoBindG must be taken into account.
2.8 – Bavarian State Social Court Judgment of 28 April 2011, – L 7 AS 572/10 –
According to prevailing opinion, a cohabiting partnership (generally described as a partnership-based community of support according to § 7 para. 3 no. 3a SGB II) has three prerequisites: 1. It must involve partners (distinguishing it from relationships based on other grounds, in particular kinship or shared accommodation), 2. they must live together in a shared household, and 3. they must have the intention to support each other and assume responsibility (intention to support each other).
The existence of a cohabiting partnership is to be assessed based on external indicators (Federal Social Court, 27 February 2008, B 14 AS 23/07 R, para. 16). Apart from Section 7 Paragraph 3a of the German Social Code, Book II (SGB II), in cases of doubt, the burden of proof for the existence of a cohabiting partnership rests with the authorities (Bavarian State Social Court, Judgment of 11 July 2006, L 11 AS 5/06, para. 44). The presumption under Section 7 Paragraph 3a of the SGB II applies only to the intent to commit to a partnership and only if the connecting factors mentioned therein are proven (e.g., cohabitation for more than one year).
The numerous acts of support, such as providing furniture, donating two stoves, procuring heating materials, and studying together with the plaintiff's son, demonstrate Mr. H.'s willingness to help, even if this must be put into perspective because he simply had the furnishings to spare, while the plaintiff and her son lacked some of the most basic necessities.
2.9 – Bavarian State Social Court decision of 22.02.2011, – L 7 AS 86/11 B ER –
The start-up grant according to § 57 SGB III is fully considered income (BSG, judgment of 01.06.2010, file no. B 4 AS 67/09 R).
The flat fee of 30 euros must be deducted from this amount.
2.10 – Bavarian State Social Court decision of 07.02.2011, – L 11 AS 960/10 NZB –
No reimbursement of costs for submitting bank statements and copies will be made if the applicant is able to submit these documents without incurring any costs.
An analogous application of Section 65a of the German Social Code, Book I (SGB I) is not possible, as no unintentional regulatory gap is apparent according to the legislator's intent as expressed in Bundestag printed matter 8/2034, pp. 42/43. The legal question is also undisputed (see the Senate's decision of May 17, 2010 – L 11 AS 291/10 NZB –).
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – SG Saarbrücken Judgment of 12 January 2011, S 12 AS 480/09
The guidelines for the recognition of costs for accommodation and heating (KdU) according to § 22 SGB II and § 29 SGB X f II in Saarland are not based on a conclusive concept in the sense of the case law of the Federal Social Court for the area of the Regional Association Saarbrücken.
The assumption of the housing costs, which are then generally to be assumed in their actual amount, is limited upwards by the values in the right-hand column of the housing benefit table for Section 8 of the Housing Benefit Act (WoGG) in the version valid until 31.12.2008 or for Section 12 of the Housing Benefit Act (WoGG) in the version valid since 1.1.2009; these are to be increased by a moderate safety margin of 10%.
The assumption of relocation costs generally requires prior approval from the municipal authority responsible until the relocation.
www.rechtsprechung.saarland.de
4. Decisions of the State Social Courts on Social Assistance (SGB XII)
4.1 – Berlin-Brandenburg State Social Court, decision of 23 May 2011, – L 15 SO 251/08 –
No additional need for expensive diets in cases of atopic dermatitis
The recommendations of the German Association of Physicians of October 1, 2008, which are based on comprehensive nutritional medicine studies and cost assessments by independent expert institutions, can be used as an anticipated expert opinion (see the aforementioned judgment of the 23rd Senate with further references). The concerns expressed by the Federal Social Court regarding the previous version of the recommendations from 1997 (e.g., judgment of April 15, 2008 – B 14/11b AS 3/07 R –) were essentially based on the outdated data and the no longer unanimous acceptance, at least in administrative practice.
There are also no objections to applying the recommendations of 1 October 2008 to previous disputed periods – as in the present case (Scheider in Schellhorn/Schellhorn/Hohm, SGB XII, 18th edition 2010, marginal note 30 to § 30 with numerous references to case law).
5. Decisions of the social courts on social assistance (SGB XII)
5.1 – Fulda Social Court Judgment of 10 May 2011, – S 7 SO 56/07 –
According to the ruling of the Social Court of Fulda, there is no apparent legal basis for the social welfare agency's demand, made by official notice, that the person in need of assistance should liquidate existing assets.
Section 90 Paragraph 1 of the German Social Code, Book XII (SGB XII), which stipulates that all realizable assets must be used, does not authorize the social welfare agency to require a person in need to use their existing assets. The decision as to whether existing assets are used, and if so, how they are used, is generally made by the asset owner (see Brühl/Geiger in LPK-SGB XII, 8th edition, Section 90, marginal note 23). Consequently, anyone who refuses to use available or realizable assets to alleviate a social welfare emergency does so at their own risk, as they must always be able to rely on the existence of the asset to cover their social welfare needs, with the result that no entitlement to social welfare exists (see Federal Administrative Court, judgment of December 19, 1997 – NJW 1998, 1879 (1881)).
Legally binding notices of approval for social assistance benefits granted as loans also form the legal basis for the repayment claim asserted by notice.
A specific case of a property transfer that violates public policy due to the obstruction of the intended access of the social welfare agency.
6. Harald Thomé: Presentation slides on ALG II / Status: June 10, 2011
7. Information video about Hartz IV
The Hartz reforms completely restructured the law on social security. A host of new problems have arisen. Attorney Ludwig Zimmermann, author of specialist books and expert in the Nomos Forum, offers valuable suggestions on how to deal with the new changes to Hartz IV.
It's finally here! The latest informational video is almost finished. You can watch it here from June 20, 2011.
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
