1.1 – Federal Social Court (BSG), Judgment of April 14, 2011, – B 8 SO 18/09 R –
A normative division (according to the number of people) is not justified if – as in the present case – there is neither a shared responsibility nor a community of need between the residents, nor a household with other persons in need of assistance.
juris.bundessozialgericht.de
2. Decision of the Federal Social Court on employment promotion under the (SGB III)
2.1 – BSG Judgment of 12.05.2011, – B 11 AL 25/10 R –
The approval of travel expenses is not excluded because the respective job interviews aimed at establishing a civil service relationship.
For the group of people seeking vocational training (see Section 15 SGB III), placement in a training relationship (see Section 35 Paragraph 1 Sentence 2 SGB II) also includes training relationships structured under public law.
++ Note: See also my post on the blog of attorney L. Zimmermann
The wording of Section 45 of the German Social Code, Book III (SGB III) initially only indicates that costs associated with travel, including for job interviews, can be covered as benefits for job placement. The wording of the law does not explicitly state that a "job interview" within the meaning of the provision is only a conversation aimed at establishing an employment relationship subject to social security contributions. Such a limited understanding of the term "job interview" does not arise from the fact that Section 45 SGB III specifically concerns benefits to support job placement.
sozialrechtsexperte.blogspot.com
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 June 6, 2011, – L 3 AS 1052/11 B –
A lawsuit challenging the delayed implementation of the Federal Constitutional Court's ruling of February 9, 2010 – 1 BvL 1/09, 1 BvL 3/09, 1 BvL 4/09 – regarding the level of the standard benefit rate is, at least if the basic income support provider has expressly pointed out that a higher benefit payment is not possible until the law is promulgated, frivolous within the meaning of Section 114 of the Code of Civil Procedure.
3.2 – Baden-Württemberg State Social Court, Judgment of June 10, 2011, – L 12 AS 1077/11 – Appeal allowed
The new Hartz IV standard rate for single persons is not unconstitutional
The new regulations concerning the subsistence-securing benefits of basic income support for job seekers (standard needs), which became necessary due to the ruling of the Federal Constitutional Court of 9 February 2010 (1 BvL 1/09, 1 BvL 3/09, 1 BvL 4/09), are not objectionable under constitutional law for single persons.
The appeal is admitted concerning the amount of the standard benefit as of January 1, 2011 - Section 20 Paragraph 2 Sentence 1 SGB II nF -.
3.3 – Hessian State Social Court decision of 14 July 2011, – L 7 AS 107/11 B ER –
1. The exclusion of benefits for foreigners pursuant to Section 7 Paragraph 1 Sentence 2 of the German Social Code, Book II (SGB II) does not apply to Union citizens due to the principle of equal treatment of nationals under Article 4 of Regulation (EC) 883/2004, at least if they receive or have received benefits under Article 3 Paragraph 1 of Regulation (EC) 883/2004.
2. Family members within the meaning of Section 2 Paragraph 2 No. 6 of the Freedom of Movement Act/EU of a person entitled to freedom of movement are not the unmarried partners.
3. A newly naturalized EU citizen from Romania or Bulgaria is considered capable of working under Section 8 Paragraph 2 of the German Social Code, Book II (SGB II), if they require a work permit solely due to the principle of subsidiary access to the labor market. This is assumed to be the case if the work permit can be granted under Section 284 Paragraph 3 of the German Social Code, Book III (SGB III) in conjunction with Section 39 Paragraphs 2 to 4 of the German Residence Act (AufenthG). This also applies to the legal situation prior to April 1, 2011.
3.4 – Hamburg State Social Court, decision of June 29, 2011, – L 5 AS 197/11 B ER –
Section 7 paragraph 3a no. 1 of the German Social Code, Book II (SGB II) requires that partners have lived together (in one household) for more than one year.
Therefore, it is not sufficient for the assumption of a joint household that persons have lived together for more than a year. Nor is it sufficient if persons do not live together as partners. In addition to the passage of time, the presumption requires that a partnership-like cohabitation within a household be established (Valgolio in Hauck/Noftz, SGB II, § 7 Rn. 56a). Cohabitation—unlike mere living together—presupposes joint household management, i.e., sharing finances "from one pot.".
The "cohabitation" must be sufficient to establish the existence of a community of need and requires that, beyond simply living together in an apartment, further aspects must be considered (cf. Berlin-Brandenburg Higher Social Court, judgment of April 4, 2011, file nos.: L 10 AS 517/11 B ER, L 10 AS 524/11 B PKH; Saxony Higher Social Court, judgment of January 7, 2011, file no.: L 7 AS 115/09; consistent case law of the 9th Senate of the Lower Saxony-Bremen Higher Social Court since its decision of August 3, 2006, file no.: L 9 AS 349/06 ER, contra: Lower Saxony-Bremen Higher Social Court, decision of March 2, 2007, file no.: L 13 AS 24/06; Saxony-Anhalt Higher Social Court, judgment of November 25, 2010, file no.: L 2 AS 187/07). If the opposing party succeeds in proving the conditions of Section 7 Paragraph 3a of the German Social Code, Book II (SGB II), the mutual intent to support one another required for the existence of a marriage-like community is presumed.
According to Section 7 Paragraph 3 Numbers 1 and 3c of the German Social Code, Book II (SGB II), the household unit includes the employable benefit recipients – this concerns the applicant, born on May 20, 1969 – and, as the partner of the employable benefit recipient, a person – here Mr. SE, born on XX.XXXXX 1972 – who lives with the employable benefit recipient in a shared household in such a way that, upon reasonable assessment, a mutual intention to assume responsibility for each other and to stand up for each other can be assumed.
With the revised provision of Section 7 Paragraph 3 Number 3c of the German Social Code, Book II (SGB II), effective August 1, 2006, the legislator continues to define what is known as a cohabiting partnership. The fact that the legislator intended to maintain the associated meaning of the term even with the revision is evident from the reason for the reformulation of the provision. This revision was intended solely to include same-sex partnerships in the definition. Against this background, it was not necessary to deviate from the traditional concept of a community of support – as developed by the Federal Constitutional Court, the Federal Social Court, and the Federal Administrative Court (see the Senate's decision of March 4, 2010, Case No.: L 5 B 471/09 ER AS).
The Social Court has comprehensively and accurately described the content of this term and what needs to be considered when examining whether such a community of support exists. Of central importance is that the partners feel so responsible for each other in the sense of a mutual willingness to support one another that they first secure their joint livelihood before using their personal income to satisfy their own needs (cf. Federal Constitutional Court, judgment of 17 November 1992, file no.: 1 BvL 8/87; Federal Social Court, judgment of 17 October 2007, file no.: B 11a/7a AL 52/06 R, SozR 4-4300 § 144 No. 16; Federal Social Court, judgment of 13 November 2008, file no.: B 14 AS 2/08 R, BSGE 102, 76; decision of the Senate of 28 May 2010, file no.: L 5 AS 132/10 B ER). The Senate is convinced that such a mutual willingness to stand up for each other is highly probable in the relationship between the applicant and Mr. SE.
3.5 – Hamburg State Social Court, decision of 06.07.201, – L 5 AS 191/11 B ER –
Training as an office communication clerk, funded by the Federal Employment Agency as a means of participation in working life, does not preclude entitlement to SGB II benefits.
Measures aimed at promoting the participation of disabled people in working life are not considered funding under vocational training assistance or the Federal Training Assistance Act (BAföG).
While training as an office clerk is generally eligible for funding under Section 60 Paragraph 1 of the German Social Code, Book III (SGB III), if – as in this case – the applicant is a disabled person and the requirements for receiving benefits for participation in working life, and in particular for the approval of special benefits under Sections 102 et seq. of the SGB III, are met, these more specific regulations supersede the general ones.
The training allowance is distinct from vocational training assistance; despite the normative connection via Section 104 Paragraph 2 of the German Social Code, Book III (SGB III), they are different categories of support. Had the legislator intended to create an exclusion criterion in this respect as well, they could and should have referenced the relevant provisions. The regulation in Section 27 Paragraph 3 of the German Social Code, Book II (SGB II) (or Section 22 Paragraph 7 of the former version of SGB II), which provides for a housing cost subsidy even for recipients of training allowance and is thus clearly based on the concept of an exclusion of benefits according to Section 7 Paragraph 5 of SGB II, does not lead to a different assessment.
This is likely due to the legislative error that Section 7 Paragraph 5 of the German Social Code, Book II (SGB II) also applies to recipients of training allowance (see BT-Drs. 16/1410 p. 24); However, this was not the case at the time this regulation was created in Section 22 Paragraph 7 of the German Social Code, Book II (SGB II, old version) (as here: Higher Social Court Berlin-Brandenburg, Decision of 11 February 2008 – L 5 B 10/08 AS ER; Social Court Berlin, Judgment of 5 December 2008 – S 37 AS 23403/08; Higher Social Court Saxony, Decision of 6 September 2010 – L 7 B 633/08 AS ER; also Brühl/Schoch, in: LPK-SGB II, 3rd edition 2009, Section 7, marginal note 114; contra Spellbrink, in: Eicher/Spellbrink, SGB II, 2nd edition 2008, Section 7, marginal note 104).
With the amendment of the German Social Code, Book II (SGB II) by the law of March 24, 2011 (Federal Law Gazette I, p. 453 et seq.) and the transfer of the subsidy provision from Section 22 Paragraph 7 of the former version of SGB II to the newly worded Section 27 Paragraph 3 of SGB II, the legislator has not changed anything in this respect and has also not addressed the scope of the exclusion provision in Section 7 Paragraph 5 of SGB II (Bundestag Printed Matter 17/3403, p. 169 et seq.).
3.6 – Berlin-Brandenburg State Social Court, decision of 01.07.2011, – L 14 AS 618/11 B ER
To receive full reimbursement of contributions to private health and long-term care insurance, credible evidence of a correspondingly higher need is required.
Federal Social Court (BSG), Judgment of 18 January 2011 – B 4 AS 108/10 R
3.7 – Berlin-Brandenburg State Social Court, decision of June 30, 2011, – L 25 AS 535/11 B ER
If the landlord has not yet filed an eviction lawsuit or obtained an eviction order, but has terminated the tenancy without notice due to rent arrears that at the time already exceeded two months' rent, and has only refrained from further legal action in view of the ongoing preliminary injunction proceedings, then judicial intervention is already warranted in this context, especially since it can avoid unnecessary additional costs that would be incurred by any further legal action taken by the landlord (see also the Senate's decision of December 28, 2010 – L 25 AS 2343/10 B ER).
According to Section 22, Paragraph 8, Sentences 1, 2, and 4 of the German Social Code, Book II (SGB II), if benefits for accommodation and heating are provided, debts can also be assumed, insofar as this is justified to secure accommodation. They should be assumed if this is justified and necessary and if homelessness would otherwise be imminent. Cash benefits should be provided as loans.
That homelessness within the meaning of Section 22 Paragraph 8 Sentence 1 of the German Social Code, Book II (SGB II) is imminent is already evident from the above explanations regarding the grounds for the order.
However, if homelessness is imminent, the debts are to be assumed in accordance with Section 22 Paragraph 8 Sentence 2 of the German Social Code, Book II (SGB II). The determination that the factual prerequisites of Sentence 2 are met also means that the respondent generally has no discretion in exercising their authority (cf. regarding Section 22 Paragraph 5 SGB II in the version applicable until March 31, 2011, Federal Social Court (BSG), judgment of June 17, 2010 – B 14 AS 58/09 R –).
If a debt situation leads to the threat of homelessness as described, the assumption of the debts is generally justified and necessary. As a rule, no other decision than assuming the debts is conceivable to secure the recipient's right to adequate housing. Only in atypical exceptional cases can the assumption of the debts be refused, whereby any potentially economically unreasonable (or reprehensible) actions by the recipient that may have (partly) caused the threatened homelessness are generally disregarded in the cases described in the second sentence.
4. Decisions of the social courts on basic income support for job seekers (SGB II)
4.1 – Social Court Landshut, decision of 18 February 2011, – S 7 AS 1007/10 ER –
Regarding the interpretation of Section 9 Paragraph 2 Sentence 3 of the German Social Code, Book II (SGB II), based on the case law of the Federal Social Court (BSG), judgment of March 22, 2010 – B 4 AS 39/09 R-.
In a typical household receiving benefits, it can be assumed that the approved benefits will actually reach the people in need.
However, if a portion of the total needs falls to a member of the household who cannot claim this benefit, the coverage of the total needs as defined by the German Social Code, Book II (SGB II), is no longer guaranteed. There is no indication that the legislator intended to accept a gap in coverage in mixed households in this situation, where the proportional distribution of the total needs results in such a situation.
Article 3, paragraph 1 of the Basic Law (GG) mandates that, contrary to the wording of the provision, Section 9, paragraph 2, sentence 3 of the German Social Code, Book II (SGB II) applies in these cases only to the members of the household receiving benefits who are entitled to them. Only the income exceeding the needs of the ineligible member is to be distributed among the members of the household receiving benefits who are in need, according to their share of the total needs. Otherwise, those receiving benefits who live with a person excluded from receiving benefits would be worse off than those receiving benefits who live in a household receiving benefits with other people receiving benefits.
In its judgment of 22.03.2010 – B 4 AS 39/09 R, the Federal Social Court (BSG) stated that the ratio of the needs of the individual member of the household to the total needs within the meaning of Section 9 Paragraph 2 of the German Social Code, Book II (SGB II) must be determined in order to then compare the corresponding share of the individual in the income to be taken into account with the respective needs arising from standard benefits and accommodation expenses.
In light of these brief explanations, it is simply inconceivable that the Federal Social Court (BSG) would have completely abandoned its jurisprudence on Section 9 Paragraph 2 Sentence 3 of the German Social Code, Book II (SGB II), which it had developed in the present case concerning an old-age pensioner in a household receiving benefits, in contrast to a student receiving BAföG (Federal Training Assistance Act). After all, both scenarios are similar; both the old-age pensioner and the student receiving BAföG are excluded from receiving benefits under the SGB II pursuant to Section 7 Paragraphs 4 and 5. Thus, a comparable problem exists. In both cases, Article 3 Paragraph 1 of the German Basic Law (GG), contrary to the wording of the provision, mandates that Section 9 Paragraph 2 Sentence 3 of the SGB II be applied only to the eligible members of the household receiving benefits. Had the BSG intended to amend its decision of April 15, 2008, or not apply it to BAföG recipients, it is safe to assume that this would not have been done in a single sentence. This is all the more true given the applicant's fundamental right to... is affected by Article 3 Paragraph 1 of the Basic Law.
The court therefore continues to assume that the Federal Social Court (BSG), with its decision of March 22, 2010, did not intend to amend its decision of April 15, 2008. However, even if the BSG, or rather the Fourth Senate, were now to hold a different view than the Fourteenth Senate, the court still adheres to the jurisprudence of the Fourteenth Senate in its decision of April 15, 2008
4.2 – Chemnitz Social Court, decision of April 29, 2011, – S 40 AS 1487/11 ER-
Hartz IV: Subsidy for private health insurance only up to half the basic tariff
Job centers are only required to subsidize the health insurance premiums of Hartz IV recipients with private health insurance up to a maximum of half the basic tariff introduced in private health insurance on January 1, 2009. This was decided by the Chemnitz Social Court in expedited proceedings.
The applicant, originally from Plauen, sought full reimbursement of her private health insurance (PKV) contributions, amounting to €483.48 per month. The Vogtland Job Center initially granted her only a monthly subsidy of €131.35. After the Job Center subsequently approved a subsidy equivalent to half the basic premium, the Social Court ultimately rejected the application for preliminary relief. The court reasoned that the applicant had the option of switching to the basic premium (maximum contribution in 2011: €575.44). For the duration of her need for assistance, Section 12 Paragraph 1c Sentence 4 of the Insurance Supervision Act (VAG) allows for a reduction in contributions to half the basic premium (€287.72). Thus, the applicant can limit her contributions to half the basic premium for the duration of her Hartz IV benefits. The Social Court concluded that there is therefore no need for subsidies for higher contributions.
Until a ruling by the Federal Social Court on January 18, 2011 – B 4 AS 108/10 R – the legal situation for Hartz IV recipients with private health insurance was unclear. A coverage gap had arisen as a result of the reforms to statutory health insurance on January 1, 2009. This affected, for example, unemployed self-employed individuals who had taken out private health insurance as part of their previous work. These individuals received a subsidy from the job centers only equal to the amount the job centers were required to pay to the health insurance funds for benefit recipients with statutory health insurance. However, this subsidy was usually significantly lower than the actual premiums. The case decided by the Federal Social Court (BSG) involved a monthly premium of €207.39 and a subsidy of €129.54 paid by the job center. The BSG ruled that the full amount of the private health insurance premiums must be covered. The law contains a regulatory gap that must be closed by means of a legal analogy.
Since the monthly contribution was less than half of the then-current basic rate for private health insurance, which amounted to €284.81, the Federal Social Court (BSG) left open the question of whether the subsidy from job centers should generally be limited to half of the basic rate. The Chemnitz Social Court has now, as explained above, addressed this open question for the first time. The decision is legally binding.
Martin Israng,
Judge at the Social Court – Press Spokesperson
++ Note: See also my post on the blog of attorney L. Zimmermann
sozialrechtsexperte.blogspot.com
4.3 – Freiburg Social Court, decision of June 30, 2011, – S 21 AS 577/11 –
1. The filing of an action for failure to act before a social court pursuant to Section 88 of the Social Courts Act (SGG) may be an abuse of rights and therefore inadmissible due to forfeiture of the right to sue, even if the asserted claim is valid in substance.
2. In social court proceedings, the principles developed for the action for failure to act in administrative court proceedings pursuant to Section 75 of the Code of Administrative Court Procedure shall apply accordingly to the forfeiture of the right to bring an action.
3. Even in the context of an action for failure to act before the social court pursuant to Section 88 of the Social Court Act (SGG), a mere significant lapse of time [here: filing of the action 2 years and 11 months after the last correspondence] is not sufficient for the forfeiture of the right to bring an action. Rather, special circumstances must exist in the individual case that make the late filing of the action appear contradictory on the part of the plaintiff, and the authority must have made corresponding arrangements in reliance on the plaintiff not exercising the right to bring an action, making it unreasonable to resume and conclude the administrative proceedings, which it considered to be closed.
4. However, in the context of a cost decision pursuant to Section 193 Paragraph 1 Sentence 3 of the Social Court Act (SGG), it may be taken into account to the detriment of the plaintiff that by filing a lawsuit after years of "silence" without prior warning from the authority, he has caused an unnecessary, avoidable legal proceeding, for example, if the inactivity of the authority was based on an error on its part and it already considered the proceedings to be concluded.
4.4 – Bremen Social Court, decision of 09.06.2011, – S 18 AS 894/11-
To determine the reasonable costs of accommodation and heating for a single-person household in Bremen – requirement for assurance when renting living space when the mother moves out of the shared apartment.
1. For a single-person household, a gross rent (basic rent and advance payment for operating costs) of 393.80 euros is currently considered appropriate, plus heating costs.
In determining the appropriateness of housing costs, the court, at least in expedited proceedings, refers to the table values in Section 12 of the Housing Benefit Act. According to the case law of the Lower Saxony-Bremen State Social Court, which this court adopts after its own review, the table value must be increased by a safety margin of 10%. The State Social Court stated the following in the aforementioned decision:
"It is undisputed between the parties that the City of Bremen does not have a conclusive concept for determining reasonable housing costs within the meaning of Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), that meets the requirements of the Federal Social Court (BSG) (see in detail the decisions of the Higher Administrative Court of Bremen of February 18, 2009 – S2 A 317/06 –, pending before the BSG under file number B 14 AS 132/10 R, and of the Social Court of Bremen of January 22, 2009 – B 21 AS 1/09 R). This is also the basis of the respondent's current administrative guidelines, which refer to the table values according to the Housing Benefit Act (WoGG). According to the established case law of the senates of the BSG responsible for basic income support for job seekers (see most recently the judgments of December 17, 2009 – B 4 AS 50/09 R – and of..." (19.10.2010 - B 14 AS 15/09 R -) However, in the absence of local means of determining the actual costs, the actual expenses of the person in need of assistance must generally be covered. The application of the table values according to the Housing Benefit Act (WoGG) serves only to limit the actual expenses to be covered, in order to prevent taxpayers from financing inherently unreasonable rents. The application of the table values therefore does not replace the reference rent to be determined for the relevant area and specific period. In the interest of protecting the basic need of the person in need of assistance to secure their housing, the respective table value, including the current value according to Section 12 of the Housing Benefit Act (WoGG), must be increased by a safety margin. This is because, in the absence of a conclusive concept, it cannot be reliably assessed what the appropriate reference rent actually is (cf. Federal Social Court (BSG) judgment of 17.12.2009 – 8 4 AS 50/09 R, para. 1). 27) In the aforementioned decision (paragraph 22), the Federal Social Court (BSG) expressly rejected considerations put forward by the respondent and the Social Court (SG) in the present case. These considerations aim to conduct a "counter-test" as to whether it is possible to rent apartments up to the level of the table values within a comparable area, instead of developing a coherent concept. According to the BSG's jurisprudence, a systematic approach by the basic income support provider is fundamentally required, involving the systematic determination and evaluation of the necessary facts for all applicable cases within the relevant comparable area. This is lacking here. For the present preliminary injunction proceedings, in which investigations into the relevant reference rent cannot be carried out, this means that, for the time being, the gross rent excluding utilities up to the level of the table value according to Section 12 of the Housing Benefit Act (WoGG), increased by a safety margin of 10%, must be covered (see also the decision of the Higher Social Court of Lower Saxony-Bremen, 11th Senate, dated [date missing]). 13.09.2010 — L 11 AS 1015/10 B ER). The maximum limit is therefore EUR 393.80 (maximum limit according to § 12 WoGG for one household member in the relevant rent level IV = EUR 358.00 x 110%)."
2. Parents are under no obligation to take an adult under the age of 25 with them when they move. According to case law, parents can easily end their cohabitation with the young adult. Likewise, there is no obligation for those under 25 to move with their parents when their current living arrangement ends. Not wanting to move does not constitute a move.
3. The fact that the landlord has not yet concluded a written tenancy agreement with the applicant does not preclude the assumption of a need for housing and heating costs. Firstly, a tenancy agreement for residential property (unlike a notice of termination) does not require written form, so there is considerable support for the conclusion that a tenancy agreement has already been concluded between the landlord and the applicant through implied conduct. Furthermore, due to the applicant's actual use of the apartment, he would be obligated to pay compensation for use in the amount of the agreed rent or the rent that is customary for comparable properties in the locality, either under the law of unjust enrichment or Section 546a of the German Civil Code.
++ Note: See also my post on the blog of attorney L. Zimmermann
Schleswig-Holstein Higher Social Court, decision of March 19, 2007, – L 11 B 13/07 AS ER –
The legislator has not made any provision for the rare case of parents moving out of the shared household. While abuse could lead to a different outcome, this is not apparent here.
Section 22 Paragraph 2a of the German Social Code, Book II (SGB II), is a special provision and must be interpreted narrowly: it does not apply if a parent moves out of the shared residence.
Continue reading here on the blog: sozialrechtsexperte.blogspot.com
5. Decisions of the social courts on social assistance (SGB XII)
5.1 – Augsburg Social Court Judgment of 07.07.2011, – S 15 SO 164/10 –
No basic income support benefits for the elderly and those with reduced earning capacity will be granted to residents of Austria.
As the wording of Section 24 Paragraph 1 Sentence 2 of the German Social Code, Book XII (SGB XII), and the exhaustive nature of the regulation already demonstrate, social assistance for foreign residents does not apply simply to a general emergency situation that falls under social assistance law; rather, it requires a clearly distinct and exceptional emergency situation. Such an emergency situation exists when, without assistance, the German citizen living abroad faces a significant impairment of their fundamental legal rights, meaning that life, health, or other basic prerequisites of human existence (cf. Article 1 Paragraph 1 and Article 2 Paragraphs 1 and 2 of the Basic Law – GG) are directly endangered.
Furthermore, the exceptional emergency situation – in further distinction from the concept of "special emergency situation" in Section 119 of the Federal Social Assistance Act (BSHG) as it applied until December 31, 2003 – must be unavoidable in the individual case, meaning it cannot be remedied by any means other than the requested assistance. The primary means of resolving the emergency situation is return to Germany, which is generally expected of the person seeking assistance once they become needy (see Bundestag Printed Matter 15/1761, p. 6, regarding Section 24, Paragraph 1; Berlit in LPK-SGB XII, loc. cit., marginal note 8). Only in exceptional cases can this principle be deviated from if, in addition to the requirement of an "unavoidable exceptional emergency situation," return to Germany is impossible or unreasonable due to one of the obstacles exhaustively listed in Section 24, Paragraph 1, Sentence 2, Nos. 1 to 3 of the German Social Code, Book XII (SGB XII). The applicant for assistance must prove the latter exceptional grounds, in deviation from the principle of official investigation applicable in social assistance law (§ 20 SGB X) (LSG Baden-Württemberg of 25.02.2010 – L 7 SO 5106/07; Sächsisches LSG of 29.11.2010 – L 7 SO 80/10 B ER with numerous further references).
In light of the territoriality principle, the legislature could assume that it is generally the responsibility of the host state to provide appropriate welfare benefits in cases of need (see also Section 24 Paragraph 2 of the German Social Code, Book XII). Insofar as it nevertheless decided, in deviation from the aforementioned principle recognized under international law, to provide benefits to German citizens in need abroad, it was therefore entitled to limit such export of social assistance to unavoidable, i.e., constitutionally mandated, assistance in exceptional emergencies where all other forms of support are unavailable. The legislature was thus entitled, in the interest of the common good and the targeted use of funds available for state welfare benefits, to impose strict conditions on the granting of social assistance abroad; the general obligation for those seeking assistance to return is also justified by the fact that, as a rule, only within Germany is the verifiability of a concrete, current emergency situation resulting in need for assistance sufficiently guaranteed.
5.2 – Aachen Social Court, decision of 15 July 2011, – S 20 SO 97/11 ER –
In order to comply with an order pursuant to Section 86a Paragraph 2 No. 5 of the Social Court Act (SGG), a justification is required explaining why, in this particular individual case, an exception is made to the fundamental value judgment of the legislator in favor of the suspensive effect of legal remedies against the relevant decision (LSG NRW, decision of 27.09.2010 – L 6 AS 777/10 B ER; decision of 11.01.2006 – L 1 B 18/05 AS ER – with further references).
In the review pursuant to Section 86b Paragraph 1 Sentence 1 No. 2 of the Social Court Procedure Act (SGG), the justification for the enforcement order is examined to determine whether it includes a case-specific explanation of the particular public interest or third-party interest in immediate enforcement and cites reasons that are substantively suitable to support the order (Higher Social Court of North Rhine-Westphalia, Decision of September 27, 2010 – L 6 AS 777/10 B ER). All of the contested decisions lack a justification that meets these requirements. However, if the enforcement order itself lacks sufficient justification, a (summary) review of the legality of the decision is no longer necessary (Higher Social Court of North Rhine-Westphalia, ibid.; Higher Social Court of Berlin-Brandenburg, Decision of January 29, 2008 – L 10 B 2195/07 AS ER).
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
