1.1 – BSG, Judgment of 10 May 2011, – B 4 AS 11/10 R-
No entitlement to reimbursement of school supplies for the 2006/2007 school year as a subsidy under the German Social Code, Book II (SGB II) (see Federal Social Court judgment of 19 August 2010, -B 14 AS 47/09 R, SozR 4-3500 § 73 No. 2).
Beyond the legal bases for claims addressed in the decision under Sections 21, 23 Paragraph 3 and 24a of the German Social Code, Book II (SGB II), Section 73 of the German Social Code, Book XII (SGB XII), and a claim directly from the Constitution based on the decision of the Federal Constitutional Court of 9 February 2010 (1 BvL 1/09, 3/09, 4/09, BVerfGE 125, 175), no other legal basis exists.
School supplies are not to be deducted in advance from child benefit as income intended to cover the needs of the recipients.
1.2 – BSG, Judgment of 10 May 2011, – B 4 AS 139/10 R-
Since August 1, 2009, according to Section 6 Paragraph 1 No. 2 of the German Social Code, Book II (SGB II), an amount of 30 euros per month can also be deducted from the income of minors living in a household for contributions to private insurance before this income is taken into account in the calculation of social assistance.
For the interpretation of the undefined legal term "adequacy" in Section 6 Paragraph 1 Number 2 of the German Social Code, Book II (SGB II), it is irrelevant whether benefits from private insurance can contribute to relieving the burden on state social security institutions. On the contrary, if sufficient protection is already provided by statutory social security, the deductibility of contributions for private insurance policies covering the same risks is precluded under basic income support law for systematic reasons. Social security contributions are covered by the basic income support provider as an ancillary benefit (for health insurance and, in the period in dispute here, also for pension insurance). This is based on the consideration that benefits from statutory social security also cover a basic income support need for which no special benefits are provided under the SGB II due to the protection afforded by statutory social security. Income from statutory social security benefits is therefore also income to be considered within the meaning of Section 11 Paragraph 1 of the SGB II, which reduces the need for assistance. The same considerations apply to recipients of earned income just above the basic income support threshold. There, the benefits from statutory social insurance – in accordance with their original purpose – replace the lost earned income due to an accident, for example, or serve to obtain health services that would otherwise have to be "bought".
While it may be advantageous to take out private insurance if certain risks are not covered by statutory social security benefits, such as the health consequences of children's leisure accidents, the question of whether such expenses are also reasonable under social security law is determined within the framework of the benefit system – as is the case with the calculation of subsistence benefits – according to the respective level of development of the community and the prevailing living conditions (see Federal Constitutional Court judgment of February 9, 2010 – 1 BvL 1/09 et al., BVerfGE 125, 175).
Therefore, in the jurisprudence of the Federal Social Court (BSG) and the Federal Administrative Court (BVerwG), the interpretation of the indeterminate legal concept of appropriateness with regard to insurance contributions in the subsistence sector focuses on the life risks (basis) and the extent (amount) for which recipients of income just above the basic income support threshold typically make provisions, and, on the other hand, on the individual living circumstances that characterize the situation of the person in need (BSG judgment of November 9, 2010 – B 4 AS 7/10 R; distinguishing this from unemployment assistance due to its function of securing living standards: BSG judgment of December 9, 2004 – B 7 AL 24/04 R – BSGE 94, 109 = SozR 4-4220 § 3 No. 1; see also social assistance under Book XII of the German Social Code (SGB XII): BSG judgment of September 29, 2009 – B 8 SO 13/08 R – BSGE 104). 207 = SozR 4-3530 § 6 No. 1; cf. regarding the BSHG: BVerwG judgment of 27.6.2002 – 5 C 43/01 – BVerwGE 116, 342; Schellhorn/Schellhorn, BSHG, 16th ed. 2002, § 76 para. 38; Schmitt/Hillermeier, BSHG, as of December 1996, § 76 para. 92).
There are doubts as to whether it is common practice for families with incomes just above the basic social security threshold to take out private accident insurance for their children. In its appeal, the job center referred to its findings from the 2008 Customer Monitor Insurance survey by Psychonomics AG, which indicated that 31% of all German households had taken out private accident insurance.
In a 2010 ruling, the Hamburg Higher Social Court (LSG Hamburg), based on information obtained from the German Insurance Association (GDV) for the year 2008, stated that the percentage of 50% of the total population holding such insurance was not reached. The proportion of children from low-income families with private accident insurance would therefore be correspondingly lower; private accident insurance for children was thus not considered standard insurance in these circles (LSG Hamburg, Judgment of November 11, 2010 – L 5 AS 58/07).
Special circumstances of an individual case can also lead to such private insurance being deemed appropriate. These might include, for example, a particular risk to the young person due to an illness or disability, or another life situation that poses a particular risk.
It is irrelevant that the minor did not take out the insurance policy himself – that is, independently. It is also immaterial that he would have had the legal option to do so with subsequent approval from his legal guardian. Neither the justification for the revised ALG II-V cited by the job center, nor the previous case law of the Federal Social Court (BSG) contradicts this.
In principle, according to the case law of the senates of the Federal Social Court (BSG) responsible for basic income support, the insurance allowance must be deducted regardless of whether contributions to private insurance policies have actually been paid (see BSG judgments of 7 November 2006 – B 7b AS 18/06 R – SozR 4-4200 § 22 No. 3; 18 June 2008 – B 14 AS 55/07 R – SozR 4-4200 § 9 No. 4; 13 May 2009 – B 4 AS 39/08 R – SozR 4-4200 § 11 No. 23). The lack of a deduction for the insurance allowance from the income of a child living in a household receiving social assistance has been justified in the case law of the Federal Social Court (BSG) by the fact that, as a rule, the child participates in the insurance policies taken out for the household and that their income should primarily serve to cover their own living expenses (BSG judgment of 13 May 2009 – B 4 AS 39/08 R – SozR 4-4200 § 11 No. 23).
In light of this, the possibility, introduced by the amendment to the ALG II-V (Regulation on Unemployment Benefit II), of deducting a flat-rate insurance allowance from the income of a minor child within the benefit unit, should only be exercised if the child has their own insurance policy that actually reduces their income. This only requires that there is an insurance policy to be financed for the child that is not included in the overall coverage of the benefit unit. It is not necessary that the child took out the insurance policy themselves.
It is also harmless that it is a "package insurance policy". It contains a separate component, exclusively related to the child, for which insurance premiums must be paid.
2. Decision of the Federal Social Court of 6 April 2011 on basic income support for job seekers (SGB II)
2.1 – BSG, Judgment of 06.04.2011, – B 4 AS 12/10 R-
Additional payments for operating costs relating to a period in which the benefit provider also had to cover unreasonable costs within the meaning of Section 22 Paragraph 1 of the German Social Code, Book II (SGB II), are considered costs of accommodation under Section 22 Paragraph 1 Sentence 1 of the SGB II, even if the ongoing costs can no longer be fully borne.
The additional claim must be considered as an actual, current need at the time it becomes due. However, this does not mean that this need is also to be assessed for appropriateness based on the circumstances in the month it becomes due. Rather, the assessment of appropriateness is based on the actual and legal conditions during the period in which the costs were incurred. Only such an interpretation of Sections 22 Paragraph 1 Sentences 1 and 3 of the German Social Code, Book II (SGB II) does justice to the protective function inherent in these provisions. The fact that the job center had already made it clear through cost-reduction requests that it considered the accommodation costs to be unreasonably high is irrelevant due to a lack of concrete implementation.
3. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
3.1 – Baden-Württemberg State Social Court, decision of 4 July 2011, – L 7 AS 5381/09 B –
In contrast to the decision pursuant to Section 73a of the Social Court Act (SGG) in conjunction with Section 124 of the Code of Civil Procedure (ZPO) regarding the revocation of the grant of legal aid, the appeal against the amendment of the decision on the payments to be made by the Social Court pursuant to Section 73a of the Social Court Act (SGG) in conjunction with Section 120 Paragraph 4 of the Code of Civil Procedure (ZPO) (here: subsequent order of installment payments) is excluded pursuant to Section 172 Paragraph 3 No. 2 of the Social Court Act (SGG).
According to Section 172 Paragraph 3 Number 2 of the Social Court Act (SGG) in the version applicable from April 1, 2008, as amended by the Act Amending the Social Court Act and the Labour Court Act of March 26, 2008 (Federal Law Gazette I, p. 444), an appeal against the denial of legal aid is inadmissible if the court denies legal aid solely on the grounds of the applicant's personal and financial circumstances. This also applies to the Social Court's (SG) modification decision pursuant to Section 73a of the Social Court Act (SGG) in conjunction with Section 120 Paragraph 4 of the Code of Civil Procedure (ZPO).
According to the legislator's intent, from April 1, 2008, the possibility of appeal against decisions in legal aid proceedings should only exist if the court has denied the prospects of success in the main proceedings (Bundestag printed matter 16/7716, p. 22, regarding item 29, letter b, no. 2). In contrast, the (partial) rejection associated with the granting of legal aid in the case of the setting of monthly installments is based (as is the complete rejection) solely on the personal and financial circumstances of the plaintiff. An appeal against the setting of monthly installments pursuant to Section 73a Paragraph 1 of the Social Court Act (SGG) in conjunction with Section 120 Paragraph 1 of the Code of Civil Procedure (ZPO) within the framework of the granting of legal aid is therefore inadmissible pursuant to Section 172 Paragraph 3 No. 2 of the Social Court Act (SGG) (Senate decision of February 23, 2009 – L 7 SO 5829/08 PKH-B –; Higher Social Court (LSG) of North Rhine-Westphalia, decisions of December 7, 2009 – L 19 B 13/09 AL – and of January 14, 2011 – L 20 AS 2026/10 B –; Higher Social Court (LSG) of Berlin-Brandenburg, decision of October 12, 2009 – L 19 AS 817/09 B PKH – (each available on juris)). There is no apparent objective reason to treat the case of a subsequent payment order pursuant to Section 120 Paragraph 4 Sentence 1 of the German Code of Civil Procedure (ZPO) differently. For here, too, the partial revocation of the grant of legal aid contained therein is based solely on an examination of the personal and financial circumstances of the party in need (Higher Social Court of North Rhine-Westphalia, loc. cit.; see also Higher Social Court of Saxony, decision of May 3, 2010 – L 3 AS 608/09 B PKH – (juris)).
The fact that something different applies to the decision to set aside a decision pursuant to Section 124 of the Code of Civil Procedure, which is not covered by the exclusion of appeals pursuant to Section 172 Paragraph 3 No. 2 of the Social Courts Act (Senate decision of March 30, 2011 – L 7 SO 2087/10 B – (not published); Higher Social Court of Baden-Württemberg, decisions of February 8, 2011 – L 13 AS 2819/10 B – and of February 21, 2011 – L 13 AL 5384/10 B –; Higher Social Court of Rhineland-Palatinate, decision of June 16, 2008 – L 5 B 163/08 AS – (each available on juris)), is justified by the fact that these grounds for setting aside a decision are not based solely on the personal and economic circumstances of the party, but are contingent upon the existence of further requirements. Furthermore, the subsequent determination of payments pursuant to Section 120 Paragraph 4 Sentence 1 of the German Code of Civil Procedure (ZPO) has less far-reaching consequences than the revocation of the grant of legal aid pursuant to Section 124 ZPO. The other effects of the grant, as stipulated in Section 122 ZPO, remain in force. In particular, the appointed legal representative cannot assert their fee claims against the represented party (see Higher Social Court of North Rhine-Westphalia, decision of January 14, 2011, loc. cit.).
3.2 – Baden-Württemberg State Social Court, decision of 11 July 2011, – L 2 AS 1462/11 B –
1. In social court proceedings, the review procedure preceding the decision pursuant to Section 124 No. 2 Alternative 2 of the German Code of Civil Procedure (ZPO) is exclusively the responsibility of the judge pursuant to Section 120 Paragraph 4 Sentence 2 of the ZPO (following the decision of the 13th Senate of the Higher Social Court of Baden-Württemberg of 09.06.2011, file no. L 13 AS 120/11 B).
2. There is no legal basis for initiating a review procedure without a specific reason as part of a purely routine review; Section 120 Paragraph 4 Sentence 2 of the German Code of Civil Procedure (ZPO) requires a specific reason for initiating the review procedure (following the decision of the 13th Senate of the Higher Social Court of Baden-Württemberg of June 9, 2011, file number L 13 AS 120/11 B).
3. The request to submit a declaration regarding a change in circumstances pursuant to Section 73a of the Social Court Act (SGG) in conjunction with Section 120 Paragraph 4 Sentence 2 of the Code of Civil Procedure (ZPO) must be served on the authorized attorney who continues to represent the plaintiffs in this respect even after the conclusion of the main proceedings (following the judgment of the Federal Court of Justice (BGH) of December 8, 2010, Case No. XII ZB 38/09, MDR 2011, 183 et seq.).
4. The request to submit a declaration regarding a change in circumstances pursuant to Section 73a of the Social Court Act (SGG) in conjunction with Section 120 Paragraph 4 Sentence 2 of the Code of Civil Procedure (ZPO) must be in the form of a judge's letter; the underlying order and the copy/certified copy to be transmitted must be signed by the judge in full (see judgment of the Federal Social Court (BSG) on Section 102 Paragraph 2 of the Social Court Act (SGG) of July 1, 2010, file number B 13 R 58/09 R, SozR 4-1500 Section 102 No. 1).
3.3 – Hamburg State Social Court Judgment of 08.06.2011, – L 5 AS 29/09 –
This insurance policy taken out by HB to secure her old age does not fall under the privileged status according to § 12 para. 2 no. 3 SGB II, because the prohibition of use required therein due to contractual agreement is indisputably not present.
The contractual agreement between the policyholder and the insurer must be concluded in such a way that the use of the insurance capital before retirement is excluded (Brühl in Münder, LPK, 3rd edition, § 12 para. 44; LSG Baden-Württemberg, judgment of 27 February 2009, case no. L 12 AS 3486/07; BSG, judgment of 7 May 2009, case no. B 14 AS 35/08 R-). This is also legally compatible with a provision between the contracting parties pursuant to § 165 of the Insurance Contract Act (VVG).
3.4 – State Social Court of Saxony-Anhalt, judgment of 11 May 2011, – L 5 AS 24/08 –, appeal pending before the Federal Social Court under file number: B 14 AS 108/11 R –
Remuneration from voluntary work as mayor is generally to be counted as income within the meaning of Section 11 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II).
This is an income in monetary value, the designation and legal character of which are irrelevant (BSG, Judgment of June 1, 2010, B 4 AS 89/09 R (17)).
This constitutes remuneration from employment subject to social security contributions within the meaning of Section 7 Paragraph 1 of the Fourth Book of the German Social Code – Common Provisions (SGB IV). Honorary municipal officials who receive an expense allowance generally perform social security-related employment relationships for remuneration (see Federal Social Court [BSG], judgment of January 25, 2006, B 12 KR 12/05 R concerning honorary mayors of member municipalities in Saxony; BSG, judgment of July 23, 1998, B 11 AL 3/98 R concerning honorary local representatives in Rhineland-Palatinate; judgment of July 15, 2009, B 12 KR 1/09 R for honorary fire service leaders in Bavaria; Higher Social Court [LSG] of Saxony-Anhalt, decision of May 17, 2010, L 3 R 18/10 B ER concerning honorary mayors in Saxony-Anhalt).
The disregard of income occurs regardless of whether it is taxable. Therefore, it is irrelevant whether the first plaintiff was liable for income tax in 2005. However, the disregard must be expressly justified by the purpose of the additional income. Income should still be taken into account if an identity of purpose with social benefits is established, or if the other benefit was granted without an explicit mention of a purpose and thus was not intended for any particular purpose. The purpose of Section 11 Paragraph 3 No. 1a of the German Social Code, Book II (SGB II), is to prevent the specific purpose of a benefit from being undermined by its inclusion as income under the SGB II, or from duplicate benefits being provided for an identical purpose (Federal Social Court, Judgment of June 1, 2010, B 4 AS 89/09 R(17) with further references to case law).
The intended purpose will regularly be derived from a public law regulation. It is irrelevant if several purposes are expressly stated for a single income (Federal Social Court, judgment of March 17, 2009, B 14 AS 62/07 R (25) concerning BAföG benefits).
A specific purpose cannot be derived from Article 28, Paragraph 2 of the Basic Law. This article merely regulates the constitutional guarantee of local self-government and, within this framework, financial autonomy. The provision does not contain any regulation regarding a specific purpose for those engaged in voluntary work within local self-government.
3.5 – Hessian State Social Court decision of 24 May 2011, – L 7 AS 88/11 B ER –
1. The request to the recipient of assistance to apply for an old-age pension constitutes an administrative act that necessitates the exercise of discretion by the SGB II benefit provider.
2. For those in need of assistance whose entitlement to benefits under the German Social Code, Book II (SGB II) arose before January 1, 2008, and who had reached the age of 58 before that date, the legislator has created a protection of legitimate expectations in Section 65, Paragraph 4 of the SGB II. They may not be required to claim their old-age pension prematurely.
3. It is irrelevant whether the person in need of assistance actually made use of the simplified conditions under Section 58 of the German Social Code, Book II (SGB II), or whether he was fully available to the labor market.
3.6 – North Rhine-Westphalia State Social Court, decision of 5 July 2011, – L 6 AS 18/11 B –
The assurance pursuant to Section 22 Paragraph 2 Sentence 1 of the German Social Code, Book II (SGB II aF) is no longer relevant for the beneficiary after the move has taken place, because it is not constitutive for the amount of his entitlement to the granting of accommodation costs (cf. Federal Social Court judgment of 30.08.2010 – B 4 AS 10/10 R Rn 17).
Any claim for higher final benefits can be pursued in the form of a claim for benefits (see BSG judgment of 06.04.2011 – B 4 AS 119/10 R Rn 21).
A move is necessary if there is a reasonable reason for it, one that would also motivate someone not receiving assistance. It is not sufficient if the move merely appears sensible or desirable (LSG Saxony-Anhalt decision of March 31, 2011 – L 5 AS 359/10 B ER, para. 42).
The need to move to a four-room apartment is not apparent, as the back pain certified by the doctor does not justify such a move. This pain can generally be addressed with a suitable choice of sleeping arrangements (e.g., a sofa bed with a slatted frame or a bed separated by clever furniture arrangement in the living room).
Note: See also the following article:
The following legal question is pending before the Federal Social Court (BSG): – B 14 AS 107/10 R-
Under what conditions is a move necessary within the meaning of Section 22 Paragraph 1 Sentence 2 of the German Social Code, Book II (SGB II) (here, the move of a single parent in need of assistance with a small child suffering from back pain from an apartment on the 4th floor without an elevator)?
Continue reading here: sozialrechtsexperte.blogspot.com
4. Decisions of the State Social Courts on Social Assistance (SGB XII)
4.1 – Baden-Württemberg State Social Court, decision of 27 June 2011, – L 2 SO 2138/11 ER-B
Germans living abroad are not entitled to Hartz IV benefits
Section 24 paragraph 1 sentence 2 no. 1 of the German Social Code, Book XII (SGB XII) is to be interpreted, based on its wording and also in view of its legislative history, as meaning that, as a minimum requirement, the applicant must at least have a serious intention to return to Germany together with the child whose care and upbringing is being assumed, in order to eliminate the need for assistance.
4.2 – Baden-Württemberg State Social Court, Judgment of 29 June 2011, – L 2 SO 5226/10 –
1. No conversion of social assistance granted as a loan into a grant as a non-repayable subsidy within the framework of a benefit procedure pursuant to Section 44 of the German Social Code, Book X.
2. Granting social assistance in the form of a loan is not a lesser but a different kind compared to granting it as a subsidy (following the BSGE judgment of March 31, 1992 – 9b RAr 17/90 -).
4.3 – Baden-Württemberg State Social Court, Judgment of 29 June 2011, – L 2 SO 5698/10 –
Even in cases of complete tooth loss with advanced jaw atrophy, there is no entitlement to a grant or loan from the social welfare provider for the purpose of financing implant-supported dentures. Rather, the social welfare recipient, like all those with statutory health insurance, must in this case be referred to the option of receiving conventional dentures/prostheses.
5. The Participation and Education Package
The new legal regulations of the SGB II, SGB XII and BKGG.
Ludwig Zimmermann, lawyer, specialist lawyer for labor and social law
www.neue-justiz.nomos.de (pdf)
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
