1.1 – BSG, Judgment of 14.04.2011, – B 8 SO 19/09 R –
The care allowance is a cost of accommodation within the meaning of Section 29 of the German Social Code, Book XII (SGB XII), because it is a mandatory obligation arising from the tenancy agreement and is also included as a condition in the notification to the landlord regarding the promotion of social housing.
A reduction of the standard benefit rate by the care allowance due to saved expenses pursuant to Section 42 Sentence 1 No. 1 of the German Social Code, Book XII (SGB XII) in conjunction with Section 28 Paragraph 1 Sentence 2 Alternative 2 of the SGB XII (cf. regarding this possibility also in the case of basic income support benefits, BSGE 99, 252 ff., marginal note 17 ff. = SozR 4-3500 § 28 No. 3) is not permissible. This is because, within the framework of a required overall assessment, only a need that deviates significantly from the average need and is not merely of insignificant economic scope, as well as savings that are not merely potential (BSGE, ibid., marginal note 28), must be taken into account.
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – North Rhine-Westphalia State Social Court, Judgment of April 4, 2011, – L 19 AS 179/10 –, Appeal allowed
It is unclear in case law whether a claim for the return of a gift under Section 528 Paragraph 1 Sentence 1 of the German Civil Code (BGB) – i.e., a claim – constitutes assets within the meaning of Section 12 of the German Social Code, Book II (SGB II) or income within the meaning of Section 11 of the SGB II (left open by the Federal Social Court (BSG) judgment of February 2, 2010 – B 8 SO 21/08 R, marginal note 13 regarding the German Social Code, Book XII (SGB XII); affirmed by the Social Court of Stade judgment of April 25, 2007 – S 18 AS 107/07 –; Mecke in Eicher/Spellbrink, SGB II, 2nd edition, Section 12 marginal note 24; Federal Administrative Court (BVerwG) judgment of June 25, 1992 – 5 C 37/88 = BVerwGE 90, 245: according to which the claim under Section 528 of the German Civil Code (BGB) does not constitute protected assets within the meaning of Section 88 of the German Federal Social Assistance Act (BSHG)).
Assets within the meaning of Section 12 Paragraph 1 of the German Social Code, Book II (SGB II) are all realizable assets. These can include not only movable property and real estate, but also securitized or unsecuritized claims and monetary benefits in the form of surrender values from insurance policies. The fact that further realization processes are necessary to achieve an actual inflow of the claim as income in cash or in kind, and thus as income within the meaning of Section 11 of the SGB II, does not preclude the consideration of claims as assets within the meaning of Section 12 of the SGB II. Therefore, claims and rights that are established as full legal rights (cf. Federal Social Court judgment of 06.05.2010 – B 4 AS 2/09 R, para. 14 with further references) can also be assets within the meaning of Section 12 of the German Social Code, Book II (SGB II), which, as unavailable funds, must be used to secure subsistence if they can be realized (cf. Federal Social Court judgment of 30.08.2010 – B 4 AS 70/09 R, paras. 14, 15).
If the conditions for the creation of a claim for the return of a gift were not met, benefits under the German Social Code, Book II (SGB II) are to be provided as a subsidy.
Because when an application is made under Section 37 of the German Social Code, Book II (SGB II), the need for assistance of the person in need for future periods does not yet exist, so that at the time of the application under Section 37 SGB II, a claim under Section 528 Paragraph 1 Sentence 1 of the German Civil Code (BGB) for periods after the application has not yet arisen; the claim does not yet exist.
It is not a secured legal position in the sense of an expectancy, but merely an actual prospect of the emergence of a claim, which can be realized if the need arises and the recipient is not impoverished according to § 818 para. 3 of the German Civil Code (BGB) at that time. However, an actual prospect of a claim arising does not constitute assets within the meaning of Section 12 Paragraph 1 of the German Social Code, Book II (SGB II). The earmarked nature of the claim under Section 528 Paragraph 1 Sentence 1 of the German Civil Code (BGB) – preventing the donor from recourse to the public – is preserved by the fact that, after its accrual, the claim under Section 528 Paragraph 1 Sentence 1 of the BGB is transferred to the defendant by legal assignment pursuant to Section 33 Paragraph 1 of the SGB II if the defendant provides benefits under the SGB II due to the recipient's failure to perform (see Link in Eicher/Spellbrink, SGB II, 2nd edition, Section 33, marginal note 23), and the defendant may have claims for reimbursement against a donor pursuant to Section 34 of the SGB II.
2.2 – North Rhine-Westphalia State Social Court, judgment of March 21, 2011, – L 20 AS 22/09 –, appeal pending before the Federal Social Court under file number: – B 14 AS 103/11 R –
Interest on pain and suffering compensation remains protected when receiving benefits under the German Social Code Book II (SGB II, also known as Hartz IV), because there is an inseparable connection between the pain and suffering compensation itself and the interest earned on it.
Interest on pain and suffering damages is protected by the provision of Section 11 Paragraph 3 No. 2 of the German Social Code, Book II (SGB II). According to this provision, compensation paid for non-pecuniary damages under Section 253 Paragraph 2 of the German Civil Code (BGB) is not to be considered income.
The purpose of pain and suffering damages is to provide appropriate compensation for non-material harm suffered and to offer redress for the injustice endured. Since this compensation is not covered by basic income support for job seekers, and the purpose of pain and suffering damages would be thwarted if they were considered, any pain and suffering damages paid are fully protected under Sections 11 and 12 of the German Social Code, Book II (SGB II). If the damages are considered income, this protection is already provided by Section 11, Paragraph 3, No. 2 of the SGB II. While Section 12 of the SGB II does not contain an explicit provision corresponding to Section 11, Paragraph 3, No. 2 of the SGB II regarding the consideration of such damages as assets, the protection is nevertheless guaranteed. However, the realization of assets from a compensation payment for pain and suffering constitutes a particular hardship within the meaning of Section 12 Paragraph 3 No. 6 of the German Social Code, Book II (SGB II), which leads to the unrealizability of these assets (Federal Social Court, Judgment of April 15, 2008, Case No.: B 14/7b AS 6/07 R, Paragraph 16).
However, if the compensation for pain and suffering is directly protected as income by Section 11 Paragraph 3 No. 2 of the German Social Code, Book II (SGB II) at the time it is received, and this protection continues within the framework of the examination of the realizability of the assets resulting from this receipt, then the proceeds obtained from the compensation for pain and suffering must also be included in this protection.
The Senate concurs with the view, which has been unanimously and convincingly represented in case law to date – as far as can be seen – that there is an inseparable connection between the compensation for pain and suffering itself and the interest earned on it (Administrative Court (VG) Münster, judgment of 07.03.2006 – 5 K 2547/04; Higher Social Court (LSG) Lower Saxony-Bremen, judgment of 20.04.2006 – L 8 SO 50/05; Social Court Karlsruhe, judgment of 27.01.2010 – S 4 SO 1302/09).
The (commentary) literature also refers to the aforementioned case law – insofar as this issue is addressed – (Brühl in: LPK-SGB II, § 11 para. 71) or – by a large majority – explicitly adopts it (Hengelhaupt in: Hauck/Noftz, SGB II, 32nd supplement VI/2010, § 11 para. 690; Hohm in: Schellhorn/Schellhorn/Hohm, SGB XII, 18th edition 2011, § 82 SGB XII para. 22 regarding the provision in § 83 para. 2 of the Twelfth Book of the Social Code – Social Assistance (SGB XII), which corresponds in content to § 11 para. 3 no. 2 SGB XII; similarly Wahrendorf in: Grube/Wahrendorf, SGB XII, 3rd edition 2010, § 83 SGB XII para. 16; Schmidt in: jurisPK-SGB XII, § 83 SGB XII Rn. 17; Decker in: Oestreicher, SGB II, SGB XII, § 83 SGB XII Rn. 22; Wolf in: Fichtner/wenzel, SGB XII, 4th edition 2009, § 83 SGB XII Rn. 7; contra, as far as can be seen, only Steimer in: Mergler/Zink, SGB XII, as of August 2008, § 83 Rn. 34 with reference to an expert opinion of the German Association for Public and Private Welfare dated 23 October 2002 – G 33/02 in: NDV 2003, 35 on § 847 BGB a. F.).
2.3 – Berlin-Brandenburg State Social Court, decision of June 3, 2011, – L 14 AS 99/11 B PKH
A lump-sum expense allowance granted by the employer, regulated in the employment contract, for the provision of an employee's car, does not constitute a designated benefit within the meaning of Section 11 Paragraph 3 No. 1 Letter a) of the German Social Code, Book II (SGB II) in the version applicable until December 31, 2010, if there is no contractually binding provision to also cover the corresponding costs (at least partially); therefore, the granting of legal aid lacks sufficient prospects of success
An employer benefit that ultimately leaves it open to the employee what to use it for does not fulfill the requirements of a designated income within the meaning of Section 11 Paragraph 3 No. 1 Letter a SGB II (aF).
An interpretation of the regulation reached in the sense of an overall view of the private law agreement reached is excluded according to the case law of the Federal Social Court (BSG), judgment of June 1, 2010 – B 4 AS 89/09 R –, with further references.
The provision in the employment contract cannot objectively be interpreted as meaning that the expense allowance was granted – contractually obligated (!) – to pay for or cover (at least partially) the costs of a personal vehicle, telephone, winter clothing, or additional meal expenses. This, however, would be a prerequisite for assuming, in favor of the plaintiff, that the employment contract imposed a specific purpose for the allowance (Federal Social Court, Judgment of May 13, 2009 – B 4 AS 29/08 R – in SozR 4 – 4200 § 11 No. 22).
2.4 – Bavarian State Social Court decision of 28 February 2011, – L 16 AS 767/09 NZB –
The appeal should be admitted because, according to the case law of the Federal Social Court, an inflow of value that occurs before the application is made pursuant to Section 37 of the German Social Code, Book II (SGB II), is to be classified as assets within the meaning of Section 12 of the SGB II, and an inflow of value after the application is to be classified as income pursuant to Section 11 of the SGB II (see, for example, Federal Social Court, judgment of 01.07.2009, file no. B 14 AS 4/08 R, ZFSH/SGB 2009, 740).
The question of how to decide when the inflow of value and the application occur on the same day, in particular whether the time of application and inflow of value is decisive, or whether – as the defendant argues – because of the retroactive effect of the application to the beginning of the day, an inflow of money on the day of application is always to be regarded as income, has not been decided by the highest court and represents a legal question of fundamental importance.
2.5 – Bavarian State Social Court decision of 11 March 2011, – L 7 AS 83/11 B ER –
Those receiving assistance under the German Social Code, Book II (SGB II), do not have to tolerate home visits from employees of the job center
The authority investigates the facts of the case ex officio and determines the nature and scope of the investigation (§ 20 para. 1 sentences 1 and 2 SGB X). A home visit, as an on-site inspection, is generally admissible evidence pursuant to § 21 para. 1 sentence 2 SGB X. Whether it is used is subject to the authority's discretionary power pursuant to § 21 para. 1 sentence 1 SGB X. It must be taken into account that a home visit infringes upon the constitutionally protected privacy of the home (Art. 13 para. 1 GG).
There is no obligation to tolerate a home visit. It is only possible with the consent of the person concerned. According to Section 21 Paragraph 2 Sentence 1 of the German Social Code, Book X (SGB X), the parties involved should cooperate in the investigation of the facts. According to Sentence 2 of this provision, they should, in particular, provide facts and evidence known to them – a home visit does not fall under this category. Sentence 3 states that a further obligation to cooperate in the investigation of the facts exists only insofar as it is specifically provided for by law. Sections 60 et seq. of the German Social Code, Book I (SGB I) and Book II (SGB II) do not establish an obligation (or rather, duty) to tolerate a home visit. Therefore, the general appeal for cooperation under Section 21 Paragraph 2 Sentence 1 of the SGB X remains in effect. A home visit is only possible with the consent (prior approval) of the person concerned. If, as a result of a refusal of the home visit, the facts of the case cannot be established, the person who bears the objective burden of proof for the facts bears the consequences of the lack of evidence. However, no conclusions can be drawn solely from the refusal of a home visit. (See Eicher/Spellbrink, SGB II, 2nd edition 2008, para. 14 ff. before § 56 regarding home visits).
2.6 – Lower Saxony-Bremen State Social Court, Judgment of 15 April 2011, – L 13 AS 333/10 –
Assigned tax refunds to the tax advisor are considered assessable income
Tax refunds received during the course of receiving benefits under the German Social Code, Book II (SGB II), are considered income that can be taken into account.
It therefore corresponds not only to the established case law of the Senate (see, for example, the decision of August 28, 2007 – L 13 AS 46/06 ER – and the judgment of March 4, 2008 – L 13 AS 7/06 –, confirmed by the judgment of the Federal Social Court of May 13, 2009 – B 4 AS 49/09 R –), but also to the prevailing view today (Federal Social Court, judgment of May 13, 2009, loc. cit., para. 12; judgment of December 16, 2008 – B 4 AS 48/07 R –, para. 11; judgment of September 30, 2008 – B 4 AS 29/07 R –, BSGE 101, 291 = SozR 4-4200 § 11 SGB II No. 15) = SGb 2009, 672 = NJW 2009, 2155 = FEVS 60, 337 -, cited according to juris, para. 18; Hasske, in: Estelmann, SGB II, as of March 2011, para. 26 on § 11; Hengelhaupt, in: Hauck/Noftz, SGB II, as of December 2010, para. 267 on § 11 with further references).
It remains assessable income even if the tax refund has been assigned to the tax advisor and the benefit recipient has therefore not received the refund.
Within the scope of their capacity for self-help, individuals seeking assistance are obligated to utilize all reasonable and readily available options to secure their necessary living expenses without state aid (see Mecke, in: Eicher/Spellbrink, SGB II, 2nd ed. 2008, para. 14 on § 11). The principle of subsidiarity in state welfare (Federal Social Court, judgment of September 30, 2008, B 4 AS 29/07 R, para. 19) therefore precludes the granting of benefits under the German Social Code, Book II (SGB II), to the extent that the individual seeking assistance has not used available funds to cover their living expenses but rather to pay off private debts (Federal Social Court, judgment of September 30, 2008, ibid.; judgment of July 30, 2008 – B 14 AS 43/07 R –, para. 28).
Therefore, as correctly explained in the contested court order of September 9, 2010, the plaintiff could not, while receiving SGB II benefits, simply dispose of the funds in the form of tax refund claims that could be used to cover his necessary living expenses in such a way that he did not use these funds to cover his living expenses, but instead – by voluntary disposition – used them to pay off private debts through assignment.
Since he nevertheless did so, he must be treated, for the purposes of assessing his need for assistance or determining whether the tax refund claims are to be considered as income, as if the assignments had not taken place (Federal Social Court, judgments of July 30 and September 30, 2008, loc. cit.; Saxon State Social Court, decision of April 14, 2005 – L 3 B 30/05 AS/ER –, NDV-RD 2005, 77 = Breith. 2005, 794 = FEVS 57, 80 = NZS 2006, 107 –, para. 37; contra Brühl, in: Münder, LPK-SGB II, 3rd ed. 2009, para. 24 on § 11).
++ Note: See also my article by social law expert attorney Ludwig Zimmermann
The 15th Senate of the Lower Saxony-Bremen State Social Court (LSG) held a completely different view in its decision of February 3, 2010 – L 15 AS 1081/09 B –
sozialrechtsexperte.blogspot.com
2.7 – Lower Saxony-Bremen State Social Court, decision of 24 May 2011, – L 13 AS 274/10 –
The costs for the renewal of the gate system are not covered as accommodation costs according to § 22 para. 1 sentence 1 SGB II or the exceptional cases regulated in § 23 para. 3 SGB II a. F. now § 24 para. 3 SGB II n. F.
The renovation costs do not fall under the definition of accommodation costs within the meaning of Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II). The term "accommodation" in this context... Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II) encompasses all structures (or parts thereof) that are suitable for providing protection from the elements and ensuring privacy, thus guaranteeing the essential needs of accommodation (Federal Social Court, Judgment of December 16, 2008 – B 4 AS 1/08 R –, SozR 4-4200 § 22 SGB II No. 14 = ZFSH/SGB 2009, 146 = NDV-RD 2009, 69 = FEVS 60, 535 –, paragraphs 14 and 15 – each with further references – ; Berlit, in: Münder, LPK-SGB II, 3rd edition 2009, paragraph 12a on § 22).
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – Social Court Kassel Judgment of 10 May 2011, – S 6 AS 685/09 –
According to the case law of the Federal Social Court (BSG), income in cash or in kind that is encumbered as a loan with a legally binding repayment obligation is not to be considered as income within the meaning of Section 11 of the German Social Code, Book II (SGB II).
It cannot be inferred from this case law of the Federal Social Court (BSG) that income crediting is only to be omitted if a pure loan agreement within the meaning of Section 488 of the German Civil Code (BGB) is proven.
Rather, in special contractual situations, it is necessary to examine on a case-by-case basis, using the criteria developed by the Federal Social Court (BSG), whether the funds received should be treated as income from an economic perspective.
3.2 – Social Court Karlsruhe Judgment of 31.05.2011, – S 8 AS 419/10 –
A life insurance policy is not to be considered as an asset of the person in need of assistance under Section 12 Paragraph 3 Sentence 1 Number 6 if its liquidation would be clearly uneconomical for the person concerned. This is the case if the proceeds to be obtained are significantly disproportionate to the actual value. The current selling price must be compared to the intrinsic value.
When determining the asset value, any partial payments already made must be taken into account as reducing the value.
3.3 – Bremen Social Court, decision of June 24, 2011, – S 22 AS 943/11 ER-
If the household consists of a person entitled to benefits under the German Social Code, Book II (SGB II) and a person entitled to benefits under Section 3 of the Asylum Seekers' Benefits Act (AsylbLG), the person entitled to benefits under the SGB II is to be granted the full standard allowance.
This follows for the legal situation from 01.1.2011 onwards from the wording of § 20 para. 4 SGB II.
Since then, the standard allowance for people who are single, single parents, or whose partner is a minor has been €364 per month.
The respondent incorrectly assumes the applicability of Section 20 Paragraph 4 of the German Social Code, Book II (SGB II). According to this provision, a standard allowance of €328 per month is to be recognized for each of these persons if two members of the household have reached the age of 18. However, this provision does not apply to cases in which recipients of benefits under the SGB II live in a household with recipients of benefits under the Asylum Seekers' Benefits Act (AsylbLG) (following the ruling of the Social Court of Hamburg – S 56 AS 796/08 ER – with reference to the Higher Social Court of Berlin-Brandenburg – L 18 B 472/07 AS ER).
Section 20 Paragraph 4 of the German Social Code, Book II (SGB II), in its new version, now clearly states that the provision is only applicable to households of need consisting of two persons entitled to benefits under the SGB II (as also already decided by the Social Court of Bremen, decision of 20 May 2011, file number: S 28 AS 775/11 ER).
www.socialcourt-bremen.de (pdf)
3.4 – Social Court Aachen Judgment of 03.05.2011, – S 14 AS 667/10 –
If the household – as in this case – consists of several members, the need is determined according to the relevant provisions of Sections 19 et seq. of the German Social Code, Book II (SGB II), even if one member of the household is excluded from receiving benefits under the SGB II (see Federal Social Court, judgment of November 23, 2006, file no. B 11b AS 1/06 R; judgment of March 29, 2007, file no. B 7b AS 2/06 R). However, the provision of Section 20 Paragraph 3 of the SGB II must then be applied according to its clear wording, with the consequence that only 90 percent of the standard benefit for a single person in need is to be applied.
Interest credits from a savings account are considered income in money within the meaning of Section 11 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), and must be taken into account as income of the person in need of assistance if they accrued to him after he had submitted his application for basic income support (Federal Social Court, judgment of 30 September 2008, file number B 4 AS 57/07 R).
3.5 – Aachen Social Court judgment of 26 May 2011, – S 14 AS 22/10 –, pending before the North Rhine-Westphalia State Social Court – L 19 AS 1061/11 –
Claims for repayment can also be asserted against minors if the person liable has since reached the age of majority.
According to Section 1629a Paragraph 1 Sentence 1 of the German Civil Code (BGB), liability for obligations incurred by the parents within the scope of their legal authority, or by other authorized representatives within the scope of their authority, through legal transactions or other actions with effect for the child, or which arose from an inheritance acquired during the child's minority, is limited to the assets the child possesses upon reaching the age of majority. As the reference in Paragraph 1 Sentence 2 to Sections 1990 and 1991 of the German Civil Code (BGB) indicates, this constitutes a permanent, peremptory defense that precludes the enforceability of an otherwise valid claim.
The provision of Section 1629a Paragraph 1 Sentence 1 of the German Civil Code (BGB) is not applicable in favor of the plaintiff, who has now entered adulthood without assets.
According to paragraph 2, paragraph 1 sentence 1 does not apply to liabilities arising from legal transactions that serve solely to satisfy the personal needs of the minor. The benefits applied for by the plaintiff's parents and received by the plaintiff, as basic income support under the German Social Code, Book II (SGB II), served precisely to secure the plaintiff's personal existence. A limitation of liability is therefore not justified because the plaintiff directly benefited from the equivalent value (Bundestag printed matter 13/5625, p. 13; see also Diederichsen in: Palandt, German Civil Code (BGB), 69th edition 2010, § 1629a, marginal note 11; see also Bavarian State Social Court, judgment of July 1, 2010, case no. L 11 AS 162/09).
++ Note: See Bavarian State Social Court judgment of 01.07.2010 - L 11 AS 162/09 -, appeal pending before the Federal Social Court under file number: - B 14 AS 144/10 R - published in the Tacheles case law ticker, week 13/2011.
The withdrawal and cancellation of benefits under the Second Book of the Social Code against a minor, aged 15, in need of assistance, due to false statements made by his mother as representative of the household regarding the concealment of her widow's pension when applying for unemployment benefit II, is permissible
Attributing the actions of a representative is only possible if – as in the present case – an express statutory authorization can be affirmed. While the minor's right to submit their own application pursuant to Section 36 Paragraph 1 Sentence 1 of the German Social Code, Book I (SGB I) takes precedence over the rights of the legal representative, it does not supersede them (see Seewald in KassKomm, Section 36 SGB I, marginal note 4, as of September 2007; Fastabend in Hauck-Haines, SGB I, Section 36, marginal note 15).
The mother's negligence is also attributable to the son. The son, represented by his mother, must accept the consequences of knowingly false statements or the concealment of essential facts by his legal representative (see Waschull in Fichte/Plagemann/Waschull, Sozialverwaltungsverfahren [Social Administrative Procedure], para. 156; Vogelsang in Hauck/Noftz, SGB X, § 45 paras. 40, 43, 44; Radüge in jurisPK – SGB II, § 38 para. 16). This also applies if – as here – only the plaintiff, representing the son, is at least grossly negligent in providing incorrect or incomplete information (see BSGE 28, 258ff; Schütze in von Wulffen SGB X, 6th ed., § 45 para. 51). Insofar as the Social Code already assumes that a minor has the capacity to act independently, it is then also possible and reasonable for him to verify the information provided by his mother who represents him.
Section 1629a of the German Civil Code (BGB) does not apply (correspondingly).
Note: See also HEGA 03/11 – 09 – Withdrawal, revocation of the grant notice and recovery of benefits under the German Social Code, Book II (SGB II) – Individual claim –, reference number: SP II 21 – II-2080.3 / II-1403; valid from: March 21, 2011
Quote: "The presumption of representation according to § 38 SGB II only applies to the application for and receipt of benefits under the SGB II. Notices regarding the reversal of claims must be addressed individually to the respective members of the household.".
A revocation of payments made against minor children is possible, as they are responsible for the actions of their legal representative. Due to the principle of individual liability, minor children are also liable for any benefits wrongfully granted to them. The repayment notice is addressed to the minor child but must also be served on their legal representative. This is reflected in the wording: "Insofar as this notice concerns your child, it is addressed to you as their legal representative.".
Adult children and the partner's children (not the applicant's own children) are not subject to recourse. Benefits paid to these individuals generally cannot be reclaimed from them because they did not cause the unlawful granting of benefits or were unaware of the unlawfulness of the administrative act, and the actions of the authorized representative cannot be attributed to them. This also applies to the partner insofar as the repayment claims are directed against the authorized representative. If the partner themselves had, for example, income or assets that were not declared in the application, grounds for revocation exist against them pursuant to Section 45 Paragraph 2 Number 2 or 3 of the German Social Code, Book X (SGB X).
Note: An adult Hartz IV recipient living in a household is not held responsible for the fault of their mother if she provided false information when applying for ALG II (unemployment benefit II)
Because his mother's legal power of representation under Section 1629 of the German Civil Code (BGB), and thus any attribution of fault under Sections 166 and 278 of the BGB (for application, see BSGE 28, 258 et seq.; 42, 184, 186; 57, 274, 279; Steinwedel in Kasseler Kommentar SGB X § 45 Rn 36, von Wulffen § 45 Rn 59), ended upon reaching the age of majority. After reaching the age of majority, the representative's fault can only be attributed to him within the framework of voluntary representation (see Section 13 of the German Social Code, Book X (SGB X), Udsching/Link, Aufhebung von Nutzenbescheiden im SGB II in Die Sozialgerichtsbarkeit 2007, pp. 513, 517). Section 38 of the German Social Code, Book II (SGB II) allows a presumption of authorization only in the context of applying for and receiving benefits. However, the provision does not establish a general presumption of authorization beyond this; the represented party is not liable for the representative's negligence (cf. Udsching/Link, "Aufhebung von Leistungbescheiden im SGB II" in "Die Sozialgerichtsbarkeit 2007, pp. 513, 517; Eicher/Spellenbrink, 2nd ed., § 38, para. 19 (explicitly abandoning the different view held in the previous edition); LPK Münder/Schoch, 2nd ed., § 38, para. 17).
Source: Fundamental principles regarding revocation and recovery notices, published in the case law ticker of Tacheles week 22/2010.
4. The new regulations for standard benefit rates in the German Social Code, Book II (SGB II) and Book XII (SGB XII)
After the reform comes the next reform? – The new regulations for standard benefit rates in the German Social Code, Book II (SGB II) and Book XII (SGB XII) – An interesting article by Ute Kötter, printed in the Info magazine, issue 3.
Quote: "The new regulation of the needs assessment procedure raises a multitude of constitutional questions, so it is to be expected that the Federal Constitutional Court will have to deal with the law again – as has already been announced by the opposition."
5. The job center must pay for tutoring if the child in need suffers from dyslexia or a developmental delay in mathematical thinking.
Section 28 Paragraph 5 SGB II
SG Oldenburg AZ. : S 49 AS 611/11 ER
The student attends the third grade of elementary school. According to the school, tutoring in mathematics and German was necessary for her to advance to the fourth grade.
The job center rejected the application, arguing that payment for the tutoring program only makes sense if it addresses temporary learning difficulties. Those with a general learning disability, however, are not entitled to state reimbursement of tutoring costs.
According to the Oldenburg Social Court, the decisive factor is not whether someone has a persistent learning disability. Rather, the crucial question is whether tutoring is suitable and necessary to achieve the essential learning objective of the class. Only if the goal of promotion to the next grade can no longer be achieved may the costs be denied.
The decision regarding the necessary support is a pedagogically required diagnostic task for the teachers of the student in question. Since the responsible teachers in this case confirmed that the requested tutoring would enable the learning objective to be achieved, the job center must cover the associated costs.
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
