1.1 – BSG, judgment of May 10, 2011, – B 4 AS 11/10 R-
No entitlement to reimbursement of expenses for school supplies for the 2006/2007 school year as a subsidy under SGB II (see BSG judgment of August 19, 2010, -B 14 AS 47/09 R, SozR 4-3500 § 73 No. 2).
Also about the basis of the claim dealt with in the decision, Sections 21, 23 Paragraph 3 and 24a SGB II, § 73 SGB /09, 4/09, BVerfGE 125, 175) there is no legal basis beyond this.
School requirements cannot be deducted in advance from child benefit as income to cover the needs of the HB.
1.2 – BSG, judgment of May 10, 2011, – B 4 AS 139/10 R-
Since August 1, 2009, according to Section 6 Paragraph 1 No. 2 Alg II-V, an amount of 30 euros per month can also be deducted from the income of minors who live in a community of need for contributions to private insurance before this income is taken into account when calculating social benefits.
In order to fulfill the vague legal term of adequacy in Section 6 Paragraph 1 No. 2 Alg II-V, it is not important whether benefits from private insurance can contribute to relieving the burden on state social insurance providers. On the contrary, if there is already sufficient protection through statutory social insurance, the deductibility of contributions for private insurance that cover the same risks in basic security law is ruled out for systematic reasons. Social security contributions are taken over by the basic security provider as an annex benefit (to health insurance and, in the period in dispute here, also to pension insurance). The reasoning behind this is that benefits from statutory social insurance also cover a basic security need for which no special benefits are provided for in SGB II due to the protection provided by statutory social insurance. Income from statutory social insurance benefits is therefore also income to be taken into account within the meaning of Section 11 Paragraph 1 SGB II, which reduces the need for help. The same considerations apply to those receiving earned income just above the basic security limit. There, the benefits from statutory social insurance - in accordance with their original purpose - replace the earned income lost due to an accident or serve to obtain the health benefits that would otherwise have to be "purchased".
If certain risks are not covered by benefits from statutory social insurance, such as the health consequences of children's leisure time accidents, this may be an argument in favor of private provision. However, whether this is accompanied by a basic security law adequacy of the expenses for this is determined within the framework of the benefit system - as is the case with the assessment of subsistence benefits - according to the respective level of development of the community and the existing living conditions (see BVerfG judgment of February 9, 2010 - 1 BvL 1 /09 et al., BVerfGE 125, 175).
Therefore, in the jurisprudence of the BSG and BVerwG, in order to fulfill the vague legal concept of appropriateness with regard to insurance contributions in the area of subsistence security, it is based on which life risks (reason) and to what extent (amount) recipients of income just above the basic security limit usually have to make precautionary expenditure care and, on the other hand, which individual living conditions shape the situation of the person in need of help (BSG judgment of November 9th, 2010 - B 4 AS 7/10 R; in contrast to unemployment assistance because of its function of securing the standard of living: BSG judgment of December 9th, 2004 - B 7 AL 24/04 R - BSGE 94, 109 = SozR 4-4220 § 3 No. 1; s on social assistance according to SGB No. 1; see on the BSHG: BVerwG judgment of June 27, 2002 - 5 C 43/01 - BVerwGE 116, 342; Schellhorn/Schellhorn, BSHG, 16th edition 2002, § 76 RdNr 38; Schmitt/Hillermeier, BSHG, as of December 1996 , § 76 RdNr 92).
There are doubts as to whether taking out private accident insurance for children is common practice for those earning income just above the basic social security threshold. In the justification for the appeal, the job center referred to its findings from Psychonomics AG's customer monitor Assekuranz for 2008, according to which 31% of all German households had taken out private accident insurance.
In a decision from 2010 based on information obtained from the German Insurance Industry Association for 2008, the LSG Hamburg stated that the percentage of 50% of the entire population who held such insurance had not been reached. The proportion of children with private accident insurance from families with limited financial means will be correspondingly lower; Private accident insurance for children is therefore not part of the usual insurance in these circles (LSG Hamburg judgment of November 11, 2010 - L 5 AS 58/07).
Special circumstances in the individual case can also mean that such private insurance is to be assessed as appropriate. These can, for example, be seen as a particular risk to the young person due to an illness or disability or another life situation that causes particular risks.
It is harmless if the minor did not take out the insurance himself - i.e. on his own initiative. It is also irrelevant that he would have had the legal opportunity to do so with subsequent approval from the parent or legal guardian. Neither the justification for the new version of Alg II-V cited by the job center nor the previous case law of the BSG speaks against this.
In principle, according to the case law of the BSG senates responsible for basic security, the insurance flat rate must be deducted regardless of whether contributions to private insurance have actually been paid (see BSG judgments of November 7, 2006 - B 7b AS 18/06 R - SozR 4 -4200 § 22 No. 3; June 18, 2008 - B 14 AS 55/07 R - SozR 4-4200 § 9 No. 4; May 13, 2009 - B 4 AS 39/08 R - SozR 4-4200 § 11 No. 23). The inability to deduct the insurance lump sum from the income of the child who lives in a community of need has been justified in the case law of the BSG by the fact that the child usually participates in the insurance taken out for the community of need and his income is primarily used to cover his own living expenses should serve (BSG judgment of May 13, 2009 - B 4 AS 39/08 R - SozR 4-4200 § 11 No. 23).
Taking this into account, the possibility opened up by the change in Alg II-V to deduct an insurance lump sum from the income of the minor child in the community of need should therefore only be possible if the child has taken out their own insurance, which actually puts a strain on his income. However, this only requires that there is insurance to be financed for the child, which is not included in the overall provision of the community of needs. It is not necessary for the child to have concluded the insurance contract themselves.
It is also harmless that it is “package insurance”. It contains an independent part that is exclusively related to the child, for which insurance contributions must be paid.
2. Decision of the Federal Social Court of April 6, 2011 on basic security for job seekers (SGB II)
2.1 – BSG, judgment of April 6, 2011, – B 4 AS 12/10 R-
Additional operating cost payments that relate to a period in which the service provider also had to bear unreasonable costs within the meaning of Section 22 Paragraph 1 SGB II are accommodation costs according to Section 22 Paragraph 1 Sentence 1 SGB II, even if the ongoing costs are not can be carried more fully.
The additional demand must be taken into account as an actual, current requirement at the time it is due. However, this does not mean that this need should also be assessed in terms of appropriateness based on the circumstances in the month it is due. Rather, the assessment of appropriateness is based on the actual and legal conditions during the period in which the costs actually arise. Only such an interpretation of Section 22 Paragraph 1 Sentence 1 and 3 SGB II does justice to the protective function inherent in the regulations. Due to the lack of concrete implementation, it is irrelevant that the job center had already made it clear with requests to reduce costs that it considered the accommodation costs to be unreasonably high.
3. Decisions of the state social courts on basic security for job seekers (SGB II)
3.1 - State Social Court of Baden-Württemberg decision of July 4, 2011, - L 7 AS 5381/09 B -
In contrast to the decision according to § 73a SGG in conjunction with § 124 ZPO on the cancellation of the approval of legal aid, the change of the decision on the payments to be made by the social court according to § 73a SGG in conjunction with § 120 paragraph 4 ZPO (here: subsequent order of Installment payments) the complaint is excluded in accordance with Section 172 Paragraph 3 No. 2 SGG.
According to Section 172 Paragraph 3 No. 2 SGG in the version of the law amending the SGG and the Labor Court Act of March 26, 2008 (Federal Law Gazette I p. 444) in force from April 1, 2008, the complaint is against the rejection of PKH excluded if the court exclusively denies the personal and economic circumstances for the PKH. This also applies to the SG's amendment decision according to Section 73a SGG in conjunction with Section 120 Paragraph 4 of the Code of Civil Procedure (ZPO).
According to the will of the legislature, from April 1, 2008, the possibility of appealing against decisions in the PKH proceedings should only be available if the court has denied the prospect of success in the main proceedings (BT-Drs. 16/7716 p. 22 to No. 29 Letter b No. 2). In the case of setting monthly installments, the (partial) rejection associated with the approval of PKH (as well as the complete rejection) is based exclusively on the personal and economic circumstances of the plaintiff; against the determination of monthly installments in accordance with Section 73a Paragraph 1 SGG in conjunction with Section 120 Paragraph 1 ZPO as part of the approval of PKH, the complaint in accordance with Section 172 Paragraph 3 No. 2 SGG is therefore not admissible (Senate resolution of February 23, 2009 - L 7 SO 5829/08 PKH-B -; State Social Court (LSG) 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 -; LSG Berlin-Brandenburg, decision of October 12, 2009 - L 19 AS 817/09 B PKH - (each juris)). There is no apparent reason to treat the case of a subsequent payment order according to Section 120 Paragraph 4 Sentence 1 ZPO differently. Here, too, the partial cancellation of the PKH approval contained therein is based only on the examination of the personal and economic circumstances of the party in need (LSG North Rhine-Westphalia, aaO; see also Saxon LSG, decision of May 3, 2010 - L 3 AS 608 /09 B PKH – (juris)).
That something different applies with regard to the cancellation decision according to Section 124 ZPO, which is not covered by the exclusion of complaints in Section 172 Paragraph 3 No. 2 SGG (Senate resolution of March 30, 2011 - L 7 SO 2087/10 B - (not published); LSG Baden-Württemberg, resolutions of February 8, 2011 - L 13 AS 2819/10 B - and of February 21, 2011 - L 13 AL 5384/10 B -; LSG Rhineland-Palatinate, resolution of June 16, 2008 - L 5 B 163/08 AS - (each juris)), finds its justification in the fact that these annulment circumstances are not based solely on the party's personal and economic circumstances, but are linked to the existence of further requirements. The subsequent determination of payments in accordance with Section 120 Paragraph 4 Sentence 1 ZPO also has less far-reaching effects than the cancellation of the PKH approval in accordance with Section 124 ZPO. The other effects of the authorization, as set out in Section 122 ZPO, remain in effect. In particular, the assigned legal representative cannot assert his fee claims against the represented party (see LSG North Rhine-Westphalia, decision of January 14, 2011, aaOmwN).
3.2 - State Social Court of Baden-Württemberg decision of July 11, 2011, - L 2 AS 1462/11 B -
1. In the social justice system, the judge is exclusively responsible for the review process preceding the adoption of a resolution in accordance with Section 124 No. 2 Alt .2011, Ref. L 13 AS 120/11 B).
2. There is no legal basis for initiating the review procedure without a specific reason in the course of a purely routine review; Section 120 Paragraph 4 Sentence 2 ZPO requires a specific reason for initiating the review procedure (following the resolution of the 13th Senate LSG Baden-Württemberg dated June 9, 2011, Ref. L 13 AS 120/11 B).
3. The request to submit a declaration about a change in circumstances in accordance with Section 73a SGG in conjunction with Section 120 Paragraph 4 Sentence 2 ZPO must be served on the authorized lawyer who will continue to represent the plaintiffs in this respect even after the main proceedings have been concluded (following the judgment of the Federal Court of Justice dated December 8, 2010, Ref. XII ZB 38/09, MDR 2011, 183 f.).
4. The request to submit a declaration about a change in circumstances in accordance with Section 73a SGG in conjunction with Section 120 Paragraph 4 Sentence 2 ZPO must be presented as a judge's letter; The underlying order and the copy/certified copy to be transmitted must be signed by the judge with his full name (cf. judgment of the BSG on Section 102 Paragraph 2 SGG of July 1, 2010, Ref. B 13 R 58/09 R, SozR 4 -1500 § 102 No. 1).
3.3 – Hamburg Regional Social Court judgment of June 8th, 2011, – L 5 AS 29/09 –
This insurance taken out by HB to protect its old age is not subject to the privileges according to Section 12 Paragraph 2 No. 3 SGB II, because the ban on use based on a contractual agreement stipulated there does not undisputedly exist.
The contractual agreement must be concluded between the policyholder and the insurer in such a way that utilization of the insurance assets before retirement is excluded (Brühl in Münder, LPK, 3rd edition, § 12 Rn. 44; LSG Baden-Württemberg , judgment of February 27, 2009, ref. L 12 AS 3486/07; BSG, judgment of 7.5.2009, ref also legally compatible.
3.4 - State Social Court of Saxony-Anhalt judgment of May 11, 2011, - L 5 AS 24/08 -, appeal pending at the BSG under the AZ.: B 14 AS 108/11 R -
Earnings from voluntary work as a mayor are generally to be counted as income within the meaning of Section 11 Paragraph 1 Sentence 1 SGB II.
It is an income in monetary value, whereby the name and legal character are irrelevant (BSG, judgment of June 1, 2010, B 4 AS 89/09 R (17)).
This is remuneration from employment subject to compulsory insurance in the sense of Section 7 Paragraph 1 Fourth Book of the Social Security Code - Common Provisions (SGB IV). Local honorary civil servants who receive compensation for expenses generally carry out employment relationships under social law for remuneration (cf. BSG, judgment of January 25, 2006, B 12 KR 12/05 R on honorary mayors of association-affiliated municipalities in Saxony; BSG, judgment of July 23, 1998 , B 11 AL 3/98 R on volunteer mayors in Rhineland-Palatinate; judgment of July 15, 2009, B 12 KR 1/09 R for volunteer fire department managers in Bavaria; LSG Saxony-Anhalt, decision of May 17, 2010, L 3 R 18/10 B ER on honorary mayors in Saxony-Anhalt).
Income is not taken into account regardless of whether it is taxable. It is therefore irrelevant whether the first plaintiff was subject to income tax in 2005. However, the exclusion must be explicitly justified by the purpose of the further income. Income should remain taken into account if the purpose is identical with social benefits or the other benefit was granted for a neutral purpose without expressly stating a purpose. The task of Section 11 Paragraph 3 No. 1a SGB II is to prevent the special purpose of a service from being missed by considering it as income according to SGB II or from double services being provided for an identical purpose (BSG, judgment of 1 June 2010, B 4 AS 89/09 R(17) with further information on case law).
The intended purpose will generally result from a public law standard. It is irrelevant if different purposes are expressly stated for an income (BSG, judgment of March 17, 2009, B 14 AS 62/07 R (25) on BAföG benefits).
A purpose cannot be derived from Article 28 Paragraph 2 of the Basic Law. This only regulates the constitutional guarantee of local self-government and, within this framework, financial personal responsibility. The regulation does not contain any regulation regarding a special purpose for those working on a voluntary basis in local self-government.
3.5 - Hessian State Social Court decision of May 24, 2011, - L 7 AS 88/11 B ER -
1. The request to the recipient of assistance to apply for an old-age pension represents an administrative act that requires the SGB II benefit provider to exercise discretion.
2. For those in need of assistance whose entitlement to benefits under SGB II arose before January 1st, 2008 and who reached the age of 58 before this date, the legislature has stipulated in Section 65(1) 4 SGB II created a trust protection regulation. You may not be asked to claim your old-age pension early.
3. It is irrelevant whether the person in need of assistance actually took advantage of the easier conditions in accordance with Section 58 SGB II or whether he or she was fully available to the labor market.
3.6 – State Social Court of North Rhine-Westphalia decision of July 5, 2011, – L 6 AS 18/11 B –
The assurance in accordance with Section 22 Paragraph 2 Sentence 1 SGB II old version 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 reimbursement of accommodation costs (cf. BSG judgment of August 30, 2010 - B 4 AS 10/10 R Rn 17).
Any request for higher final benefits can be permissibly pursued in the form of a performance action (see BSG judgment of April 6, 2011 - B 4 AS 119/10 R Rn 21).
A move is necessary if there is a reasonable reason for it, which a non-recipient would also be guided by. However, it is not enough if the move merely seems sensible or desirable (LSG Saxony-Anhalt decision of March 31, 2011 - L 5 AS 359/10 B ER Rn 42).
The need to move to a four-room apartment is not apparent because the back pain certified by the doctor does not justify such a need. These can generally be addressed with a suitable choice of sleeping accommodation (e.g. a sofa bed with slatted frames or a separate bed in the living room through clever furniture).
Note: See also the following article:
The following legal question is pending before the BSG: – B 14 AS 107/10 R-
Under what conditions is a move necessary within the meaning of Section 22 Paragraph 1 Sentence 2 SGB 2 (here excerpt from a single parent suffering from back pain and in need of help with a small child from an apartment on the 4th floor without an elevator)?
continue here: Sozialrechtsexperte.blogspot.com
4. Decisions of the state social courts on social assistance (SGB XII)
4.1 - State Social Court of Baden-Württemberg decision of June 27, 2011, - L 2 SO 2138/11 ER-B
No entitlement to Hartz IV for Germans living abroad
§ 24 Para. 1 Sentence 2 No. 1 SGB to return to Germany to eliminate the need for help.
4.2 – State Social Court of Baden-Württemberg judgment of June 29, 2011, – L 2 SO 5226/10 –
1. No conversion of social assistance granted as a loan into a grant as a lost subsidy as part of a benefit procedure in accordance with Section 44 SGB X.
2. Granting social assistance on a loan basis does not represent a minus but an aliud compared to granting it as a subsidy (following the BSGE judgment of March 31, 1992 - 9b RAr 17/90 -).
4.3 – State Social Court of Baden-Württemberg judgment of June 29, 2011, – L 2 SO 5698/10 –
Even in the case of complete edentulism with advanced jaw atrophy, there is no claim from the social welfare provider to grant a grant or a loan for the purpose of financing implant-supported dentures. In this case, the social assistance recipient, like all those with statutory health insurance, should be referred to the provision of a normal denture/prosthesis.
5. The participation and education package
The new legal regulations of SGB II, SGB XII and BKGG.
Ludwig Zimmermann, lawyer, specialist lawyer for labor and social law
www.neue-justiz.nomos.de (pdf)
Source Tacheles jurisprudence ticker, www.tacheles-socialhilfe.de
