1.1 – BSG, Judgment of 24.02.2011, – B 14 AS 87/09 R –
A partner's obligation to provide information only applies if they are living together
A partner in a cohabiting relationship is only obligated to provide information if the relationship still exists. The job center cannot subsequently base its request for information on a claim for maintenance payments (§ 60 para. 2 SGB II) in court proceedings, as this would fundamentally alter the original administrative act (the information notice). A reinterpretation of a claim for information based on the relationship (cohabitation) as one based on maintenance obligations is not permissible.
++ Note: See also the article by social law expert Attorney Ludwig Zimmermann
sozialrechtsexperte.blogspot.com
2. Decision of the Federal Social Court of 21 June 2011 on basic income support for job seekers (SGB II)
2.1 – BSG, Judgment of 21.06.2011, – B 4 AS 128/10 R –
Upon admission to closed custody to serve a substitute custodial sentence, the applicant is excluded from benefits under the German Social Code, Book II (SGB II), pursuant to Section 7 Paragraph 4 of the SGB II.
This exclusion of benefits also applies if the person in need of assistance is serving a substitute prison sentence in a correctional facility.
++ Note: Thus, the 4th Senate follows the jurisprudence of the 14th Senate of the Federal Social Court (BSG), judgment of 24 February 2011, – B 14 AS 81/09 R-
No unemployment benefit II while serving a substitute prison sentence, even if relaxations of the prison conditions had been granted.
Facilities for the execution of judicially ordered deprivations of liberty occupy a special position under Section 7 Paragraph 4 of the German Social Code, Book II (SGB II), as amended by the Further Development Act (dated July 20, 2006). According to Section 7 Paragraph 4 Sentence 2 of the SGB II (new version), residence in such a facility is equivalent to residence in a residential care facility.
Individuals in such facilities are excluded from receiving benefits under the German Social Code, Book II (SGB II). For these facilities, it is therefore irrelevant whether their nature inherently precludes the possibility of at least three hours of daily employment on the general labor market. The allocation to the benefit system is not based on the objective structure of the facility in individual cases, but rather is generalized for all facilities falling under Section 7, Paragraph 4, Sentence 2 of the SGB II, whose residents are particularly excluded from the general labor market due to their deprivation of liberty.
++ Note: See also the decision of the Berlin-Brandenburg State Social Court of 15 April 2011, – L 14 AS 218/11 B ER –
No unemployment benefit II during imprisonment despite day release and admission to relaxed prison conditions (cf. BSG judgment of 24.02.2011, – B 14 AS 81/09 R-).
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 facility, by its very nature, precludes the commencement of at least three hours of daily employment on the general labor market or not.
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.
3. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
3.1 – LSG Saarbrücken decision of 2 May 2011, L 9 AS 9/11 B ER
Anyone who refuses to participate in a medical examination ordered by the basic income support provider to determine their ability to work violates their duty to cooperate pursuant to Section 59 of the German Social Code, Book II (SGB II) in conjunction with Section 309 of the German Social Code, Book III (SGB III).
A violation of this duty to cooperate can only be sanctioned by the basic income support provider in accordance with Sections 31, 31a of the German Social Code, Book II (SGB II); the application of Sections 62, 66 of the German Social Code, Book I (SGB I) is excluded in such cases.
The obligations to cooperate laid down in Sections 60 to 67 of the German Social Code, Book I (SGB I), are to be applied (supplementarily) only and exclusively as long as and to the extent that no regulations on special obligations to cooperate exist which expressly or implicitly regulate the circumstances of the case differently and/or conclusively (cf. Federal Social Court judgment of 19 September 2008, file no.: B 14 AS 45/07 R = BSGE 101, 260 = SozR 4-1200 § 60 No. 2).
A reinterpretation of a refusal notice based on Sections 62 and 66 of the German Social Code, Book I (SGB I) into a sanction notice pursuant to Sections 31 and 31a of the SGB I is not possible. An action for annulment against the (partial) refusal of unemployment benefit II (Alg II) based on Sections 62 and 66 of the SGB I is not immediately enforceable pursuant to Section 39 No. 1 of the German Social Code, Book II (SGB II) (version effective from January 1, 2009).
If the basic income support provider disregards the suspensive effect of the appeal, the affected person can apply to the social court for an express determination of the suspensive effect of the appeal in accordance with Section 86b Paragraph 1 of the Social Court Act (SGG); in exceptional cases, the issuance of a regulatory order pursuant to Section 86 Paragraph 2 Sentence 2 of the Social Court Act (SGG) may also be considered if the basic income support provider based the denial of benefits exclusively on Sections 62 and 66 of the German Social Code, Book I (SGB I).
Because of the amendment to Section 39 of the German Social Code, Book II (SGB II) with effect from January 1, 2009, a change has occurred such that, given the clear wording of the provision, the denial of benefits based on Section 66 of the German Social Code, Book I (SGB I) is no longer subject to the immediate enforceability regulated in Section 39 of the German Social Code, Book II (SGB II) in the event of an appeal (see also the decision of the Higher Social Court of Baden-Württemberg of April 8, 2010, file number: L 7 AS 304/10 ER-B with further references).
www.rechtsprechung.saarland.de
++ Note: See also Bremen Social Court decision of 01.10.2010, – S 18 AS 1928/10 ER -,
A breach of the duty to cooperate, expressly stipulated in Section 59 of the German Social Code, Book II (SGB II) in conjunction with Section 309 of the German Social Code, Book III (SGB III) (here, the duty to undergo a medical examination), permits the application of the sanctions provided for in Section 31, Paragraph 2 of the SGB II. The provisions of Section 31 of the SGB II constitute specific regulations. These regulate graduated sanctions. The complete withdrawal of standard benefits by recourse to the provisions of Sections 62 and 66 of the German Social Code, Book I (SGB I) is not permissible. The SGB II contains a comprehensive regulatory framework in this respect.
++ Note: See also LSG Halle (Saale) 5th Senate, decision of 20.02.2009 – L 5 B 376/08 AS ER -, commentary by Dr. Christiane Padé, Judge at the Social Court, reference: jurisPR-SozR 20/2009 note 1, publication date: 01.10.2009.
Relationship between Section 31 of the German Social Code, Book II (SGB II) and Section 66 of the German Social Code, Book I (SGB I)
1. A breach of the duty to cooperate, expressly stipulated in Section 59 of the German Social Code, Book II (SGB II) in conjunction with Section 309 of the German Social Code, Book III (SGB III), permits the application of the sanctions provided for in Section 31, Paragraph 2 of the SGB II. Recourse to the subsidiary provisions of Sections 62 and 66 of the German Social Code, Book I (SGB I) is inadmissible, as the SGB II contains a comprehensive regulatory framework in this respect.
2. The reinterpretation of a benefit withdrawal notice pursuant to Section 66 of the German Social Code, Book I (SGB I) as a sanction notice pursuant to Section 31 of the German Social Code, Book II (SGB II) is not possible due to the different nature of the regulations (author's guidelines)
++ Note: Social Court Düsseldorf held a different view in its decision of December 6, 2010, – S 7 AS 4509/10E R –
If there are doubts about the employability of the person in need of assistance, failure to attend a scheduled examination can justify a decision to deny benefits in accordance with Sections 60, 62 and 66 of the German Social Code, Book I (SGB I)
3.2 – State Social Court of Saxony-Anhalt, decision of 13 May 2011, – L 5 AS 498/10 B ER –
As part of a balancing of interests, the applicant is entitled to the costs of additional, professional learning support in accordance with Sections 19 Paragraph 2, 28 Paragraph 5 of the German Social Code, Book II (SGB II), due to his significant absences from school caused by illness.
++ Note: The explanations of the Saxony State Social Court regarding the prerequisites for the assumption of these costs are interesting.
"According to Sections 19 Paragraph 2 and 28 Paragraph 5 of the German Social Code, Book II (SGB II), supplementary learning support is provided to students to the extent that it is suitable and additionally necessary to achieve the essential learning objectives defined by school regulations. However, according to the legislator's intent, extracurricular learning support is only suitable and necessary as an additional need in exceptional cases. As a rule – as the legislator further explains in its explanatory memorandum – it is only necessary for a short period to address temporary learning difficulties. It is intended merely to supplement direct school-based support. Direct school-based support always takes precedence, and extracurricular learning support is only considered if it is insufficient in a specific individual case. The suitability and necessity of the learning support relate to the essential learning objective, which in turn is determined on a case-by-case basis according to the school regulations of the respective state, depending on the type of school and grade level. The essential learning objective in each grade level is regularly promotion to the next grade level or a sufficient level of performance (see Bundestag printed matter)." 17/3404, p. 105).
A prognostic assessment relating to the end of the school year must be made, taking into account the school's support services. If this prognosis is negative at the time of the needs assessment, there is no entitlement to learning support. Learning support is also not appropriate if the learning objective can no longer be objectively achieved, and if, according to school regulations, a change of school type and repeating the grade are indicated, for example. If the cause of the temporary learning difficulty lies in unexcused absences or similar reasons, and there are no signs of a lasting change in behavior, learning support is likewise not necessary
3.3 – North Rhine-Westphalia State Social Court, decision of June 8, 2011, – L 19 AS 958/11 B ER –
If a move is necessary (here, moving out of the women's shelter), the applicants are to be granted a loan by way of preliminary legal protection to cover the expenses for acquiring cooperative shares, including an admission fee, as housing procurement costs and not as a rental deposit.
Here, the applicant had submitted an application to the benefit provider for the assumption of costs for the acquisition of cooperative shares before initiating the preliminary legal protection proceedings and before signing the lease agreement (cf. regarding the claim for assumption of costs within the meaning of Section 22 Paragraph 6 Sentence 1 of the German Social Code, Book II (SGB II) in the case of a delay in good faith in the decision on an application pursuant to Section 22 Paragraph 3 of the German Social Code, Book II (SGB II) as amended up to December 31, 2010: Federal Social Court (BSG) judgment of May 6, 2010 – B 14 AS 7/09 R), so that the prerequisites for an assurance were met.
The only point of contention between the two benefit providers is who is responsible for issuing the assurance pursuant to Section 22 Paragraph 6 Sentence 1 of the German Social Code, Book II (SGB II). The decisive factor in determining responsibility is whether the costs for acquiring five cooperative shares, including the admission fee, constitute housing procurement costs within the meaning of Section 22 Paragraph 6 Sentence 1, first half-sentence, of the SGB II, or a rental deposit within the meaning of Section 22 Paragraph 6 Sentence 1, second half-sentence, of the SGB II.
Cooperative shares represent a financial participation in the cooperative as a business (Regional Court Regensburg judgment of 18.08.2009 – 2 S 82/09 –; Feßler/Roth, On the influence of residential tenancy law on cooperative law: Can the deposit provision of § 551 BGB limit the scope of a cooperative compulsory participation?, WuM 2010, p. 67).
If the rental of a cooperative apartment by the cooperative as landlord – as in the present case – is made conditional upon the prospective tenant subscribing to and paying for a certain number of shares in the cooperative, the expenses for acquiring these shares are, according to the consistent opinion in case law (LSG Saxony decisions of September 29, 2008 – L 2 B 611/08 AS ER – and of January 25, 2010 – L 3 AS 700/09 B ER –; LSG Berlin-Brandenburg judgment of May 11, 2010 – L 5 AS 25/09 –) and in legal literature (cf. Berlit in Münder LPK-SGB II, 3rd ed., § 22 note 110; Lang/Link in Eicher/Spellbrink, SGB II, § 22 para. 83), expenses within the meaning of § 22 para. 3 sentence 1 SGB II. II aF is now essentially identical in content to § 22 para. 6 sentence 1 SGB II.
However, it is unclear whether such expenses constitute housing procurement costs or correspond to a rental deposit within the meaning of Section 22 Paragraph 6 Sentence 1 of the German Social Code, Book II (SGB II) (for the latter: Berlit, loc. cit., Section 22 Note 110; Higher Administrative Court of Bremen, decision of July 27, 2007 – S 2 B 299/07 –; for the former, probably: Lang/Link, loc. cit., Section 22, marginal note 83; left open: Higher Social Court of Saxony, decisions of September 29, 2008 – L 2 B 611/08 AS ER – and of January 25, 2010 – L 3 AS 700/09 B ER –; Higher Social Court of Berlin-Brandenburg, judgment of May 11, 2010 – L 5 AS 25/09).
The LSG NRW, based on the level of review possible in preliminary legal protection proceedings, has come to the conclusion that these are housing procurement costs within the meaning of Section 22 Paragraph 6 Sentence 1 SGB II.
All expenses associated with finding and renting an apartment (cf. BSG judgment of 18.02.2010 – B 4 AS 28/09 R – Rn 15 with further references on the concept of housing procurement costs within the meaning of § 22 para. 3 sentence 1 SGB II aF) constitute housing procurement costs.
The argument put forward by the intervener that expenses for the acquisition of cooperative shares constitute a rental deposit within the meaning of Section 22 Paragraph 6 Sentence 1 of the German Social Code, Book II (SGB II), is contradicted by the fact that cooperative shares are not a security deposit, but rather expenses for establishing a corporate legal position, namely that of a cooperative member. In the Senate's view, the interpretation of the term "rental deposit" used in Section 22 Paragraph 6 Sentence 1, second half-sentence, of the SGB II should be based on the concept of a rental deposit as defined in Section 551 of the German Civil Code (BGB), since there is no indication that the legislator intended to deviate from the concept of a rental deposit used in the BGB.
Furthermore, with regard to the regulation of Section 42a of the German Social Code, Book II (SGB II) as amended by the law of May 13, 2011, there are reasons of administrative practicality that the benefit provider in whose area of responsibility the new apartment is located is responsible for covering expenses for the acquisition of cooperative shares for the purpose of renting an apartment.
However, in the area of social assistance, the expenses for acquiring cooperative shares were not recorded under the term "rental deposit" but as "housing procurement costs" (see Higher Administrative Court of Lower Saxony decision of 25.07.2002 – 4 LA 145/02 -).
3.4 – North Rhine-Westphalia State Social Court, Judgment of March 28, 2011, – L 19 AS 1845/10 –, Appeal allowed
The fulfillment of a compulsory share claim within the meaning of Section 2317 of the German Civil Code (BGB) during the receipt of benefits under the German Social Code, Book II (SGB II), constitutes income to be taken into account within the meaning of Section 11 Paragraph 1 Sentence 1 of the SGB II to the extent of the payment amount; it is not an asset within the meaning of Section 12 of the SGB II.
The consideration of a benefit in kind that accrues to an applicant only after the application has been submitted as income does not require either an identity of purpose for the benefit in kind and the benefits under the German Social Code, Book II (SGB II), nor an identity of time period (Federal Social Court judgment of July 30, 2008 – B 14 AS 26/07 R = juris para. 22). Regarding the compulsory share claim... According to § 2317 of the German Civil Code (BGB), which only arises upon the death of the testator and is directed against the heir or the community of heirs, it is an ordinary monetary claim (cf. Federal Court of Justice (BGH) judgment of October 1, 1958 – V ZR 53/58 = BGHZ 28, 177(178); Weidlich in Palandt, BGB, 70th edition, § 2317 marginal note 2), which is transferable (§ 398 et seq. BGB) and attachable (§ 2317 para. 2 BGB).
The distinction under the law of obligations between a claim for payment of a sum – here, the compulsory share – and the fulfillment of the claim by disbursement (credit) does not lead to a conflict such that the claim would have to be considered an asset and, in addition, the payment arising from the claim would have to be considered income. While an unfulfilled claim for money or money's worth does represent an economic value and, if it already belongs to the holder, constitutes an asset (see Federal Administrative Court judgment of February 18, 1999 – 5 C 35/97 – loc. cit.), so that a claim, as an unavailable means, can be an asset within the meaning of Section 12 of the German Social Code, Book II (see Federal Social Court judgment of August 30, 2010 – B 4 AS 70/09 R, para. 15; regarding the compulsory share: Federal Social Court judgment of May 6, 2010 – B 14 AS 2/09 R, paras. 14 et seq.).
However, in the case of payment of a claim after application – as in the present case – the fate of the claim is not of interest under the law of the German Social Code, Book II (SGB II); rather, Section 11 Paragraph 1 Sentence 1 of the SGB II focuses solely on the generation of income in cash and in kind in the sense of an actual inflow (Federal Social Court judgment of August 30, 2010 – B 4 AS 70/09 R, paragraph 15 with further references to case law).
This does not apply only in cases where assets have been voluntarily accumulated with income already obtained, i.e., where a due and liquid claim is deliberately not asserted (BSG judgment of 30.09.2008 – B 4 AS 57/07 R, para. 17 and of 30.07.2008 – B 14 AS 26/07 R, para. 24).
In the present case, the plaintiff did not save up the compulsory share claim, but rather collected it from the sole heir through legal proceedings.
The payment of the compulsory share claim is not a privileged income within the meaning of Section 11 Paragraph 3 of the German Social Code, Book II (SGB II), nor is the receipt excluded from consideration as income under Section 11 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II).
3.5 – Bavarian State Social Court Judgment of 17 February 2011, – L 7 AS 595/09 –
Applications for travel expense assistance must be submitted before starting work
Benefits for integration into the workforce must be applied for separately. The application for the job interview contains nothing else. A simple telephone notification of starting work does not constitute a tacit application for travel expense reimbursement. The employer had also previously received an information sheet on this matter. The application for travel expense reimbursement was only submitted on November 5, 2007, and is therefore late according to Section 37 Paragraph 2 of the German Social Code, Book II (SGB II). The issue of hardship is irrelevant because Section 324 of the German Social Code, Book III (SGB III) is not applicable – Section 37 of the SGB II is an exhaustive regulation. (See Baden-Württemberg Higher Social Court, Judgment of December 12, 2008, L 12 AS 2069/08, paragraph 21, and Eicher/Spellbrink, SGB II, 2nd edition 2008, Section 16, paragraph 58).
3.6 – Rhineland-Palatinate State Social Court, decision of June 9, 2011, – L 1 SO 19/11 –
No legal aid if you are entitled to an advance on legal costs
Regarding the lack of need for granting legal aid due to a claim for advance payment of legal costs against the spouse pursuant to Section 1360a Paragraph 4 of the German Civil Code (BGB) in a legal dispute concerning the granting of basic income support for the elderly and those with reduced earning capacity under Book XII of the German Social Code (SGB XII).
3.7 – Hessian State Social Court decision of 16.06.2011, – L 9 AS 658/10 B ER –
As an exception, the principle of good faith requires that the subsequent payment of a social benefit (here a start-up grant) not be counted as income if, after an initial wrongful rejection of the start-up grant, a loan is taken out to commence self-employment and a postponement of the commencement of self-employment is not reasonable.
4. Decisions of the social courts on basic income support for job seekers (SGB II)
4.1 – Dessau-Roßlau Social Court, decision of 20 May 2011, – S 2 AS 688/11 ER –
The local mayor, who receives Hartz IV benefits, must have her expense allowance of EUR 347.80 counted as income.
The basic allowance of EUR 175.00 must be deducted (§ 11b para. 2 sentence 3 SGB II). No further deductions are made for insurance allowances, motor vehicle liability insurance, or other insurance contributions, as these amounts are already included in the basic allowance of EUR 175.00 (cf. § 11b para. 1 sentence 1 nos. 3 to 5 and § 11b para. 2 sentences 1 and 2 SGB II).
No further deduction is to be made pursuant to Section 30 of the German Social Code, Book II (SGB II) in conjunction with Section 77 Paragraph 3 of the SGB II, because the exercise of the honorary office of local mayor does not constitute gainful employment. There is no utilization of labor for the purpose of generating income.
4.2 – Social Court Berlin Judgment of 24 May 2011, – S 149 AS 17644/09 –, Direct appeal is permitted
The conformity of Section 7 Paragraph 1 Sentence 2 Number 2 of the German Social Code, Book II (SGB II) with European law is disputed in case law, without a final ruling by the highest court to date
Section 7(1) sentence 2 no. 2 of the German Social Code, Book II (SGB II) must be interpreted restrictively in conformity with European law, such that it only applies if job seeking was already the purpose of entry into the country. A literal application of the exclusion of benefits to all cases in which a Union citizen, at the time of submitting an application for benefits, has a right of residence solely for the purpose of job seeking, without regard to the original purpose of entry, would violate overriding applicable European law.
It is doubtful whether the exclusion from benefits pursuant to Section 7 Paragraph 1 Sentence 2 Number 2 of the German Social Code, Book II (SGB II) does not violate Article 4 of Regulation (EC) No 883/2004, which is directly applicable. According to this article, persons to whom this Regulation applies have the same rights and obligations under the legislation of a Member State as the nationals of that State. Pursuant to Article 3 Paragraph 3 in conjunction with Article 70 in conjunction with Annex X of Regulation (EC) No 883/2004, this principle of equal treatment also applies to basic income support benefits for jobseekers. In any case, the Regulation applies to all Union citizens pursuant to Article 2 of Regulation (EC) No 883/2004.
4.3 – Social Court Berlin Judgment of 24 May 2011, – S 149 AS 21300/08 –
Heirs of a Hartz IV recipient are obliged to reimburse the social benefits that the recipient received in the last ten years before their death, provided that the benefit amount exceeded 1700 euros.
The specific form of the principle of the protection of legitimate expectations derives primarily from ordinary law. The general requirement of the protection of legitimate expectations, which flows from the rule of law principle according to Article 20 Paragraph 3 of the Basic Law, also comes into play in the form of a review of the content of the design and application of ordinary law.
An oral assurance that no further claims exist against an heir of a benefit recipient does not establish a legally protected position of trust for the heir with regard to claims pursuant to Section 35 of the German Social Code, Book II (SGB II). Such an assurance would require written form to be effective, in accordance with Section 34 Paragraph 1 Sentence 1 of the German Social Code, Book X (SGB X).
The requirements of Section 35 Paragraph 2 Number 2 of the German Social Code, Book II (SGB II) are not met. It is not apparent that requiring the plaintiff to pay would constitute a particular hardship due to the specific circumstances of this case. Such hardship is assumed to exist when there is a striking atypicality in the facts of the case, which, considering all the circumstances, would make it unreasonable to require the heir to reimburse the costs of social assistance. The hardship must be particularly significant, i.e., objectively very severe (Federal Social Court [BSG], Judgment of March 23, 2010, Case No. B 8 SO 2/09 R, para. 27; Higher Social Court [LSG] Baden-Württemberg, Judgment of December 22, 2010, Case No. L 2 SO 5548/08, para. 43).
The decision on costs for actions against repayment orders based on Section 35 of the German Social Code, Book II (SGB II) is governed by Section 197a Paragraph 1 Sentence 1 of the German Social Courts Act (SGG) in conjunction with Section 154 Paragraph 1 of the German Administrative Court Procedure Act (VwGO). Plaintiffs sued under Section 35 SGB II do not belong to the group of persons mentioned in Section 183 SGG because they are not suing in their capacity as insured persons, benefit recipients, or special legal successors under Section 56 of the German Social Code, Book I (SGB I) (following the Federal Social Court's ruling of March 23, 2010, Case No. B 8 SO 2/09 R).
4.4 – Social Court Düsseldorf Judgment of 23 May 2011, – S 10 AS 278/09 –
For a household consisting of two people who own their own home, a reasonable living space of 90.00 square meters is assumed (see, among many others: LSG NRW, judgment of 21.07.2010 – file no.: L 12 AS 4/09).
According to Section 12 Paragraph 3 Sentence 1 Number 3 of the German Social Code, Book II (SGB II), retirement savings are protected only "to a reasonable extent," although the legislator has not included any concrete guidelines for the interpretation of this term in the provision. Under the previous unemployment assistance law, the Federal Social Court (Bundessozialgericht) considered an amount corresponding to three-sevenths of the standard pension from the statutory pension insurance to be a typical example of a reasonable supplementary retirement provision (see Federal Social Court, Judgment of March 25, 1999 – Case No.: B 7 AL 28/98 R; Federal Social Court, Judgment of October 22, 1998 – Case No.: B 7 AL 118/97 R).
4.5 – Bremen Social Court Judgment of 13 January 2011, – S 9 AS 130/09 –
If the authority conducts a hearing that was not properly carried out previously within the meaning of Section 24 Paragraph 1 of the German Social Code, Book X (SGB X), in court proceedings pursuant to Section 41 Paragraph 2 of the SGB X, then at the end of this subsequent hearing procedure there must be a further decision by administrative act, which becomes the subject of the legal proceedings pursuant to Section 96 Paragraph 1 of the German Social Courts Act (SGG).
The court of first instance shall not suspend the legal proceedings on the request of the court of first instance pursuant to Section 114 Paragraph 2 Sentence 2 of the Social Courts Act (SGG) in order to allow the authority to carry out a hearing that was not properly conducted within the meaning of Section 24 Paragraph 1 of the Social Code, Book X (SGB X), if the one-year period of Section 45 Paragraph 4 Sentence 2 of the Social Code, Book X (SGB X) can no longer be observed with an administrative act concluding the properly carried out hearing procedure, which becomes the subject of the legal proceedings pursuant to Section 96 Paragraph 1 of the Social Courts Act (SGG).
4.6 – SG Mannheim decision of 21.4.2011, – S 14 AS 720/11 –
No entitlement to reimbursement of extrajudicial costs pursuant to Section 193 of the Social Court Act (SGG) due to the exceeding of the deadline set by the Federal Constitutional Court (BVerfG) in its decision of February 9, 2011 (Case Nos. 1 BvL 1/09, 1 BvL 3/09, 1 BvL 4/09) for the legislature to amend the provisions of Book II of the German Social Code (SGB II).
According to Section 193 Paragraph 1 Sentence 3 of the Social Courts Act (SGG), if the proceedings are concluded other than by judgment, the court decides by order, upon application, whether and to what extent the parties must reimburse each other's extrajudicial costs. The decision on costs is discretionary, and it is generally considered appropriate to base this decision on the likely outcome of the proceedings, taking into account the facts and legal arguments at the time of the case's conclusion (in this respect, the legal principles of Sections 91a of the Code of Civil Procedure (ZPO) and 161 Paragraph 2 of the Administrative Court Procedure Act (VwGO) should be applied). However, the court is not solely focused on the potential outcome of the litigation. Rather, it must consider all circumstances of the individual case. Thus, even if the parties prevail, they may still be ordered to reimburse costs according to the principle of causation (Bavarian State Social Court, Breithaupt 98, 454, 457; Schleswig-Holstein State Social Court, NZS 1997, 392). The court can therefore also take into account the reason for bringing the action (Meyer-Ladewig, SGG, § 193 Rnr. 12 b).
Reimbursement of costs in favor of the plaintiff may be waived due to the plaintiff's pre-litigation conduct, e.g., if he has not sufficiently complied with his obligations to cooperate in the administrative proceedings (BSG, decision of 22.10.1987, file no.: 12 RK 49/86; LSG Lower Saxony, decision of 02.05.1991, file no.: L 1 S (An) 66/91).
The provisions of the German Social Code, Book II (SGB II), which were declared incompatible with the Basic Law by the Federal Constitutional Court, remained applicable until March 24, 2011.
++ Note: See Bavarian State Social Court decision of 27 May 2011, – L 7 AS 342/11 B PKH –
No legal aid will be granted for a lawsuit against the new standard benefit rates.
For a reasonably well-off person would not have filed a lawsuit against the existing standard benefits on March 2, 2011, if, in light of the Federal Constitutional Court's ruling of February 9, 2010 (1 BvL 1/09) and the already existing draft legislation, they could have been certain that the increase in standard benefits would be minor and, in any case, retroactive to January 1, 2011 (Federal Constitutional Court, loc. cit., para. 218). The new standard benefit rates were enacted by law on March 24, 2011 (Federal Law Gazette I, p. 453).
The new standard benefit rates were established by the Act on the Determination of Standard Benefit Rates and the Amendment of Books Two and Twelve of the Social Code of March 24, 2011 (Federal Law Gazette I, p. 453). Courts are bound by the law (Article 20, Paragraph 3, Article 97, Paragraph 1 of the Basic Law). In the event of a conflict between an ordinary law and the constitution, a court cannot place itself above the law – it can only refer the law to the Federal Constitutional Court pursuant to Article 100, Paragraph 1 of the Basic Law. However, this is only possible if the referring court is convinced of the unconstitutionality of the ordinary law (Jarass/Pieroth, Basic Law, Article 100, marginal note 10). There is no evidence to suggest that the new standard benefit rate law is unconstitutional.
5. Decisions of the social courts on social assistance (SGB XII)
5.1 – Social Court Düsseldorf Judgment of 23.03.2011, – S 17 SO 57/10 –
If the assets to be used exceed the protected assets, there is no entitlement to reimbursement of the uncovered nursing home costs.
Assets also include claims, i.e., claims against third parties. Such claims arise both from the concluded funeral pre-arrangement contract, including the funeral pre-arrangement trust agreement, and from the life insurance policy, because assets also include all claims for restitution arising from a contractual relationship after the termination of the contract, and thus also claims against trustees (cf. Federal Social Court, judgment of 18 March 2008 – B 8/9b SO 9/06 R).
There is no supreme court ruling on the extent to which and up to what amount funeral pre-planning is appropriate and thus protects the assets held in trust.
The case law of the courts is inconsistent in this regard (Social Court Detmold, judgment of 30 July 2010, S 16 (19) SO 116/08: approx. EUR 7,000.00; Social Court Karlsruhe, judgment of 29 October 2009, S 1 SO 4061/08: EUR 8,000.00 for a married couple; Social Court Hildesheim, court order of 24 July 2009, S 34 SO 75/07: EUR 6,500.00; Social Court Dortmund, judgment of 13 February 2009, S 47 SO 188/06: probably EUR 3,500.00, possibly to be increased due to price increases, EUR 8,000.00 in any case unreasonable; Higher Social Court Bavaria, judgment of... September 25, 2008, L 11 SO 32/07: EUR 3,200.00 is at least reasonable; LSG SHS, Decision of October 1, 2008, L 9 B 461/08 SO ER: probably EUR 5,000.00; LSG SHS, Judgment of December 4, 2006, L 9 SO 3/06: a funeral pre-arrangement contract for EUR 4,611.39 is (still) reasonable if it takes into account unavoidable costs of EUR 2,436.82 billed by the cemetery administration), as does the administrative case law on nursing home allowance (OVG NRW, Judgment of November 16, 2009, 12 A 1363/09: Limit of reasonableness: The costs for an average funeral, according to the foundation Consumer test approximately 7,000.00 EUR; VG Münster, judgment of 22.09.2009, 6 K 1044/08; ; but VG Düsseldorf, judgment of 04.12.2009, 21 K 3740/09, takes a different view, arguing convincingly that grave maintenance must be paid from the higher asset allowance of 10,000.00 EUR within the framework of long-term care benefits and that no additional protected assets are required; the case law on social assistance with the significantly lower asset allowance cannot be directly applied to long-term care benefits).
A dignified funeral is considered to be provided when the assets tied up in funeral pre-arrangements and funeral pre-arrangement trust agreements, considering all services and taking into account local conditions (fees/prices), enable a dignified funeral appropriate to local conditions. While the type and scope of services may exceed what the social welfare agency would be obligated to provide under Section 74 of the German Social Code, Book XII (SGB XII), this should not be to a significant extent (correctly stated by Mecke in jurisPK-SGB XII, as of November 1, 2010, Section 90, marginal note 99). The appropriate amount for funeral pre-arrangements cannot be determined by an average or general rule, but rather must be assessed on a case-by-case basis, albeit with some generalizable elements. In the opinion of the court, the social background and (former) social standing of the recipient of assistance are irrelevant in this specific assessment; however, local conditions must be taken into account.
For the funeral director's own services, an amount of EUR 2,046.00 is appropriate. This is double the amount (EUR 1,023.00) granted in the Rhein-Kreis-Neuss district for funeral expenses under Section 74 of the German Social Code, Book XII (SGB XII), for funeral director services and other services, excluding the aforementioned fees (Guidelines of the local social welfare authority for the implementation of the SGB XII – Assumption of Funeral Expenses, dated October 6, 2005).
6. Decision on employment promotion according to the (SGB III)
6.1 – Baden-Württemberg State Social Court, Judgment of June 8, 2011, – L 3 AL 1315/11 –
If a professional driver has his driving licence revoked due to a traffic offense and the employer subsequently terminates the employment relationship because he can no longer employ the employee, then the unemployment was caused by conduct contrary to the employment contract, which may result in a waiting period.
However, the employee lacks gross negligence in causing the unemployment if the reason for the revocation of the driver's license was merely negligent endangerment of road traffic – without the influence of intoxicating substances – and he cannot be accused of reckless behavior due to the circumstances of the individual case.
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
