1. Decisions of the state social courts on basic income support for job seekers (SGB II)
1.1 – Baden-Württemberg State Social Court, decision of 16 August 2011, – L 7 AS 1953/11 ER-B –
In the summary review possible in preliminary injunction proceedings, a claim for reimbursement of private health insurance contributions would likely only exist up to half of the basic tariff. Reimbursement of contributions exceeding this amount would likely be ruled out.
++ Note: See also my post on the blog of attorney L. Zimmermann
North Rhine-Westphalia State Social Court, judgment of May 16, 2011, – L 19 AS 2130/10 –, appeal pending before the Federal Social Court under file number: – B 14 AS 110/11 R –
sozialrechtsexperte.blogspot.com
1.2 – Baden-Württemberg State Social Court, decision of 02.08.2011, – L 7 AS 2367/11 ER-B –
No suspensive effect due to the decision replacing an integration agreement
The institution of the integration agreement and the administrative act replacing it do not affect the applicant's fundamental rights ("obligation to contract", "freedom of contract")
1. The action for annulment against such replacement decisions, which (as here) regulate the obligations of employed benefit recipients regarding integration into the labor market, is governed by Section 39 Sentence 1 No. 1 Alternative 2 of the Second Book of the Social Code (SGB II) (as promulgated on May 13, 2011 (Federal Law Gazette I p. 850)), which specifies Section 86a Paragraph 2 No. 4 of the Social Courts Act (SGG) and is not objectionable under constitutional law (see Federal Constitutional Court (BVerfG), decision of October 30, 2009 – 1 BvR 2395/09 – NJW 2010, 1871); see Article 13 of the Act on the Determination of Standard Needs and on the Amendment of SGB II and the Twelfth Book of the Social Code (SGB XII) of March 24, 2011. (Federal Law Gazette I p. 453)) no suspensive effect.
The desired preliminary legal protection can only be sought via Section 86 Paragraph 1 Sentence 1 No. 2 of the Social Court Act (SGG).
2. The replacement decision is not unlawful because the institution of the integration agreement and the administrative act replacing it would affect the fundamental rights of the individual (“obligation to contract”, “freedom of contract”).
Rather, the alternative courses of action regulated in Section 15 Paragraph 1 of the German Social Code, Book II (SGB II) (here in the version of the announcement of May 13, 2011, loc. cit.) – namely, the integration agreement and the substitute administrative act – are instruments for implementing the main purpose associated with the SGB II, namely to reintegrate employable persons entitled to benefits into employment, whereby the basic income support provider has the right of initiative (cf. BSGE 104, 185 = SozR 4-4200 § 15 No. 1 (the constitutional complaint was not accepted for decision by the Federal Constitutional Court on April 26, 2010 – 1 BvR 1028/10)).
Accordingly, the respective case worker, taking into account all circumstances of the individual case, also decides whether negotiations are conducted with the aim of concluding an integration agreement or whether the integration agreement is replaced by an administrative act or an administrative act on integration services is issued from the outset (cf. BSG aaO).
Employable benefit recipients, in turn, must, according to the principle of obligation, exhaust all possibilities to end or reduce their need for assistance and actively participate in all measures for their integration into work, in particular also by concluding an integration agreement (see Section 2 Paragraph 1 Sentences 1 and 2 SGB II).
1.3 – State Social Court of Saxony-Anhalt, decision of 03.08.2011, – L 2 AS 242/11 B ER –
According to Section 22 Paragraph 2 Sentence 1 of the German Social Code, Book II (SGB II) (in force from April 1, 2011), unavoidable expenses for maintenance and repair of owner-occupied residential property within the meaning of Section 12 Paragraph 3 Sentence 1 No. 4 of the SGB II may also be recognized as a need for accommodation for Hartz IV recipients, provided that these are reasonable in total, taking into account the expenses incurred in the current and the following eleven calendar months.
However, the accommodation costs for the applicant and her husband are already unreasonable even without considering any potential repair or maintenance costs, so no further costs are to be covered.
++ Note: See also my post on the blog of attorney L. Zimmermann
According to case law, what are unavoidable expenses for maintenance and repairs of owner-occupied residential property?
sozialrechtsexperte.blogspot.com
1.4 – State Social Court of Saxony-Anhalt, decision of 29 June 2011, – L 6 SF 22/11 AB –
According to Section 60 Paragraph 1 of the Social Courts Act (SGG) in conjunction with Section 42 Paragraph 2 of the Code of Civil Procedure (ZPO), a judge may be recused due to concerns about bias if there is a reason that is capable of justifying mistrust in his impartiality.
Only objective grounds are admissible, namely those which, from the perspective of the party seeking recusal, could reasonably give rise to the concern that the judge is not impartial and therefore not unbiased. Purely subjective, unreasonable notions of the party seeking recusal are inadmissible as grounds (Federal Social Court (BSG), Decision of July 31, 1985 – 9a RVs 5/84 - SozR 1500 § 60 No. 3). The decisive factor is whether a party to the proceedings, upon reasonable consideration of all circumstances, has cause to doubt the judge's impartiality (Federal Constitutional Court (BVerfG), Decision of February 16, 1995 – 2 BvR 1852/54 -, BVerfGE 92, 138, 139). Doubts can be significant, for example, if the judge gives the impression that he does not want to consider the submissions of the parties for improper reasons, or that he has unilaterally committed himself to a legal opinion and will not deviate from it. Incorrect or supposedly incorrect legal opinions of a judge are generally not a relevant reason for recusal (cf. Schleswig-Holstein Higher Social Court, decision of March 31, 1993 – L 1 S 24/92 – Breithaupt 1994, 87). Procedural errors and incorrect decisions by the judge do not constitute grounds for recusal if no bias on the part of the judge is apparent (cf. Higher Regional Court of Schleswig, decision of September 2, 1993 – 16 W 193/93 – NJW 1994, 1227), since inexperience or possible erroneousness of a decision is not the same as bias (similarly Zimmermann, ZPO, 7th ed., § 42 para. 16).
++ Note: See also my post on the blog of attorney L. Zimmermann
A judge can be recused on grounds of bias if there is a reason that could justify mistrust in their impartiality (Section 42 Paragraph 2 of the Code of Civil Procedure [ZPO] in conjunction with Section 60 Paragraph 1 Sentence 1 of the Social Courts Act).
(socialrechtsexperte.blogspot.com
1.5 – Saxon State Social Court Judgment of 28 March 2011, – L 7 AS 664/10 –
Exclusion according to § 7 para. 5 SGB II also applies to semesters on leave.
According to Section 7 Paragraph 5 Sentence 1 of the German Social Code, Book II (SGB II), trainees whose training is eligible for funding under the Federal Training Assistance Act (BAföG) are not entitled to benefits to secure their livelihood. In principle, higher education is eligible for funding in this sense, according to the Senate, even if a student enrolled at a university (matriculated at a university) takes a leave of absence – for whatever reason (see also Saxon State Social Court, decision of November 30, 2010 – L 3 AS 649/10 B ER; contra Saxon State Social Court, decision of January 13, 2010 – L 2 AS 762/09 B ER – not published –; Berlin-Brandenburg State Social Court, decision of February 5, 2008 – L 25 B 146/08 AS ER, para. 7; Leipzig Social Court, decision of November 5, 2009 – S 9 AS 3293/09 ER, para. 22).
In this respect, the Senate follows the jurisprudence of the Federal Social Court (BSG), insofar as the latter, in its decision of 01.07.2009 (Case No. B 4 AS 67/08 R, para. 14) in proceedings in which the plaintiff was indeed enrolled (during the period in question in the 32nd semester of his subject and 29th semester of his university studies, having been in the phase of completing his main course of study for several semesters), did not consider it decisive to what extent the university was actually attended, but rather affirmed the existence of an education eligible for funding in principle because of the enrollment at the university.
++ Note: See also the judgment of the Saxon State Social Court of 20 January 2011, – L 3 AS 770/09 –, appeal allowed
Exclusion according to § 7 para. 5 SGB II also applies to semesters on leave.
In connection with the question of whether, in principle, an education is eligible for funding within the meaning of Section 7 Paragraph 5 Sentence 1 of the German Social Code, Book II (SGB II), it is crucial that, even during a leave of absence semester, attendance at an educational institution in the sense of organizational affiliation with that educational institution (cf. Federal Social Court, judgment of August 19, 2010 – B 14 AS 24/09 R – para. 17, with further references) is not interrupted and that the studies can be pursued in accordance with the university regulations.
1.6 – Saxon State Social Court Judgment of 04.08.2011, – L 7 AS 563/09 –
The request to declare the involvement of a representative necessary, due to its economic significance, concerns an administrative act directed at a monetary payment within the meaning of Section 144 Paragraph 1 Sentence 1 No. 1 of the Social Court Act (SGG).
This includes not only decisions that grant or determine a monetary benefit, but also decisions that serve as the basis for the creation of such an entitlement to a monetary benefit (cf. BSG, judgment of 19.11.1996 – 1 RK 18/95, para. 19, with references to the case law of the Federal Administrative Court, e.g. judgment of 16.12.1988 – 7 C 93/86). A cost decision to be made in accordance with Section 63 Paragraph 1 Sentence 1 of the German Social Code, Book X (SGB X), the decision on the necessity of appointing a representative in the preliminary proceedings pursuant to Section 63 Paragraph 2 SGB X, and the subsequent determination of costs pursuant to Section 63 Paragraph 3 SGB X constitute a single unit, and the restriction of the appeal pursuant to Section 144 Paragraph 1 Sentence 1 No. 1 of the German Social Courts Act (SGG) covers each of these decisions (see Higher Social Court of Baden-Württemberg, Judgment of October 20, 2010 – L 5 KA 5688/09, Paragraph 24; Higher Social Court of Berlin-Brandenburg, Decision of August 3, 2009 – L 10 AS 391/09 NZB, Paragraph 2). In accordance with this case law, some senates of the Saxon State Social Court assume that appeals against judgments and court orders of the social courts concerning the reimbursement of costs pursuant to Section 63 of the German Social Code, Book X (SGB X), are not admissible in so-called isolated preliminary proceedings without an express decision granting leave to appeal if the value of the appeal does not reach EUR 750.00 (see Saxon State Social Court, decision of December 17, 2009 – L 1 B 772/08 AL-NZB – and decision of January 20, 2011 – L 2 AS 541/10 NZB, both unpublished).
This view should be followed. The extent of cost reimbursement for an isolated objection procedure, which is not followed by a court proceeding regarding the merits, is always determinable. Here, the value was also specifically quantified by the plaintiffs' legal representative in his statement of costs dated May 28, 2008. Moreover, since the substantive decision is already established with the remedial or objection decision, the only remaining point of contention is the costs of the preliminary proceedings, essentially a secondary issue to the original substantive dispute. There is no apparent reason why the cost decision, which is the only remaining point of contention between the parties, as well as the question of the necessity of retaining legal counsel or the amount of the cost assessment for a concluded administrative procedure, should be subject to appeal without leave to appeal by the courts, while the underlying substantive legal question is subject to the restrictions on appeal under Section 144 Paragraph 1 Sentence 1 No. 1 of the Social Court Act (SGG), depending on its economic value. Therefore, it is correct that the economic value of all decisions made by the authority pursuant to Section 63 of the German Social Code, Book X (SGB X), must be determined for the appellant. Whether an appeal against a judgment of the Social Court concerning an administrative decision pursuant to Section 63 SGB X requires leave to appeal or is admissible without leave to appeal is thus determined by Section 144 Paragraph 1 Sentence 1 No. 1 of the German Social Courts Act (SGG), depending on whether this value is above or below €750.00. In the present proceedings, the plaintiffs' attorney has submitted a cost statement in the amount of €595.00. This is below the value of the appeal of €750.00. The economic value of the cost decision is determined for the plaintiffs pursuant to Section 63 Paragraph 2 SGB X at precisely this amount. They have not claimed anything more.
++ Note: See also my post on the blog of attorney L. Zimmermann
The Hanover Social Court on the necessity of consulting a lawyer
(sociallawexpert.blogspot.com)
1.7 – Bavarian State Social Court decision of 04.07.2011, – L 7 AS 472/11 B ER –
Hartz IV – No legal entitlement to the creation or allocation of a 1-euro job
Section 16d of the German Social Code, Book II (SGB II) does not establish a legal entitlement to the creation or assignment of a one-euro job (Eicher/Spellbrink, SGB II, 2nd edition 2008, § 16 para. 205a and Münder, LPK-SGB II, 3rd edition 2009, § 16d para. 7). Assigning such a job is a measure for integration into the labor market, which, like other integration measures, is at the discretion of the agency. In particular, Section 16d sentence 1 of the SGB II, which stipulates that work opportunities should be created for employable benefit recipients who cannot find work, does not establish a mandatory entitlement to a work opportunity in a typical case. This provision addresses the agency as a general requirement to utilize this integration instrument. Sentence 2, second half-sentence, of this provision only establishes an entitlement to reimbursement of expenses if a one-euro job has been assigned and is being performed.
Therefore, according to Section 39 Paragraph 1 of the German Social Code, Book I (SGB I), someone seeking a €1 job assignment is only entitled to the proper exercise of discretion. Section 16d Sentence 1 of the German Social Code, Book II (SGB II) stipulates that only those capable of working who cannot find employment can have such a right to discretionary consideration. The applicant could belong to this group, as he has been unsuccessfully seeking employment for years.
1.8 – North Rhine-Westphalia State Social Court, decision of 10 August 2011, – L 12 AS 1062/11 B ER –
The determination of the type and scope of the investigations into the relevant facts in the administrative and objection proceedings is a matter for the authority (see Section 20 Paragraph 1 of the Social Code – Social Administrative Procedure and Social Data Protection – SGB X).
The court is responsible for reviewing any violations of the principle of official investigation in the context of challenges to administrative acts, but not for intervening in ongoing objection proceedings, including in the context of preliminary legal protection.
The standard for decision-making within the framework of Section 86b Paragraph 1 Sentence 1 No. 2 of the Social Court Act (SGG) in conjunction with Section 86a Paragraph 2 No. 4 of the Social Court Act (SGG) in conjunction with Section 39 No. 1 of the Social Code – Basic Income Support for Job Seekers – (SGB II) is rather a balancing of interests, which must be based on the prospects of success of the legal remedy in the main proceedings, as assessed after a preliminary examination of the legal situation
The suspensive effect of the objection is regularly ordered when the contested decision is manifestly unlawful and a main proceeding would therefore obviously be successful (see Senate, decision of 27 May 2011 – L 12 AS 522/11 B ER –; LSG NRW, decision of 13 August 2010 – L 6 AS 999/10 B ER –; Keller, in: Meyer-Ladewig/Keller/Leitherer, SGG, 9th ed. 2008, § 86b paras. 12c ff. with further references).
1.9 – North Rhine-Westphalia State Social Court, decision of 19 July 2011, – L 19 AS 455/11 B –
Educational assistance benefits amounting to 20 percent of the total amount considered sufficient to cover needs under the Federal Training Assistance Act (BAföG) are earmarked income (see Federal Social Court judgment of 17 March 2009 – B 14 AS 62/07 R-).
Training costs, such as tuition fees, which exceed the designated portion of the training allowance – a flat rate of 20% of the benefits for training-related costs – due to the specific nature of the training, do not constitute necessary expenses related to generating income within the meaning of Section 11 Paragraph 2 Sentence 1 No. 5 of the German Social Code, Book II (SGB II) (cf. Federal Social Court (BSG) judgment of March 17, 2009 – B 14 AS 62/07 R, paragraphs 31 et seq., which was based on the plaintiff's attendance at a private, tuition-fee-paying training institution while receiving "student BAföG"; see also Federal Constitutional Court (BVerfG) decision of July 7, 2010 – 1 BvR 2556/09 – which states that this is constitutionally unobjectionable).
2. Decisions of the social courts on basic income support for job seekers (SGB II)
2.1 – Darmstadt Social Court Judgment of 14 March 2011, – S 22 AS 395/10 –
The intended commencement of self-employment does not render the relocation unreasonable.
Benefit recipients cannot demand that the job center cover the costs of an unsuitable apartment, even temporarily, simply because that apartment offers ideal conditions for a later, intended start of self-employment.
Rather, any accommodation that meets basic needs in terms of its furnishings, location, and building structure, and does not offer a high standard of living, is considered appropriate. It must enable the person in need of assistance to live a life of dignity (Federal Social Court judgment of December 16, 2008 – B 4 AS 1/08 R – para. 15).
This results, on the one hand, in a minimum entitlement, but simultaneously, within the framework of the concept of appropriateness, also in a maximum entitlement, which derives from the protection (only) of the socio-cultural subsistence minimum that the entitlements under the German Social Code, Book II (SGB II) serve. This minimum does not include the creation of a basis for self-employment. Other regulatory mechanisms serve this purpose; see Section 16b of the SGB II.
++ Note: See also my post on the blog of attorney L. Zimmermann
When is a move necessary for a Hartz IV recipient? – Section 22 Paragraph 4 SGB II –
sozialrechtsexperte.blogspot.com
2.2 – Social Court Dresden Judgment of 20 July 2011, – S 32 AS 2163/09 –, appeal is admitted
A Saxon Hartz IV recipient has to pay for a language trip to Eastbourne in England himself – No reimbursement from the Job Center – The language trip was not conducted as a class trip – Saxon school law does not define the term class trip.
A recipient of Hartz IV benefits in Saxony must pay for his own language trip to Eastbourne, England, because the trips were not considered school trips, as they were not conducted with the students as a class. Rather, the trips took place in addition to regular school trips. The purpose of covering the costs of multi-day school trips is to prevent the exclusion of those receiving assistance under the German Social Code, Book II (SGB II) (see Federal Administrative Court, judgment of February 9, 1995, 5 C 2/93, juris = BVerwGE 97, 376 ff. regarding the Federal Social Assistance Act (BSHG)).
++ Note: See also my post on the blog of attorney L. Zimmermann
Legal rulings on the topic – school trips.
sozialrechtsexperte.blogspot.com
3. Decisions of the State Social Courts on Social Assistance (SGB XII)
3.1 – State Social Court of Saxony-Anhalt, decision of June 9, 2011, – L 8 SO 4/11 NZB –
According to the regulations of the German Social Code, Book XII (SGB XII), it is not possible to assume the costs for street improvement contributions for a property that is not used for residential purposes.
The benefit recipient lives in a rented apartment and is therefore not threatened with homelessness, so that reference is appropriate to the provision in Section 90 Paragraph 2 No. 8 of the German Social Code, Book XII (SGB XII), which guarantees the protection of property and relates only to the protection of the self-occupied, appropriately sized house property as assets.
Basic income support benefits for the costs of accommodation (§ 42 sentence 2 no. 2 in conjunction with § 29 SGB XII) refer to premises actually used (cf. e.g. Grube in: Grube/Wahrendorf, SGB XII Commentary, § 29 marginal no. 13).
The assumption of debts by the social welfare agency as subsistence assistance in special cases is permissible under Section 34 Paragraph 1 Sentence 1 of the German Social Code, Book XII (SGB XII), only if this is justified to secure accommodation or to alleviate a comparable emergency. The costs incurred by maintaining a property not occupied by the individual do not jeopardize the other accommodation maintained by a person receiving benefits under the SGB XII, nor do they constitute a comparable emergency.
++ Note: See also my post on the blog of attorney L. Zimmermann regarding the German Social Code, Book II (SGB II)
sozialrechtsexperte.blogspot.com
4. Decisions of the social courts on social assistance (SGB XII)
4.1 – Social Court Karlsruhe Judgment of 22 July 2011, – S 1 SO 1329/11-
Consideration must also be given to the income of the applicant's spouse/partner who does not live separately before funeral costs are covered by social assistance funds
++ Note: See also my post on the blog of attorney L. Zimmermann regarding the German Social Code, Book II (SGB II)
Under what conditions and to what extent are funeral costs covered by social welfare?
sozialrechtsexperte.blogspot.com
4.2 – Freiburg Social Court Judgment of 25 July 2011, – S 9 SO 5262/08 –
To avoid a violation of fundamental rights (here: Art. 6 para. 1 GG), the “unavoidable assistance” within the meaning of § 23 para. 5 SGB XII may, in individual cases, consist of full social assistance benefits.
4.3 – Freiburg Social Court Judgment of 10 May 2011, – S 9 SO 406/08 –
Account management fees can constitute necessary expenses related to the generation of income (here, pension) within the meaning of Section 82 Paragraph 2 No. 4 of the German Social Code, Book XII (a. view of the Higher Social Court of Saxony-Anhalt, judgment of April 23, 2008, – L 8 SO 5/06 -).
4.4 – Freiburg Social Court Judgment of 25 July 2011, – S 9 SO 771/09 –
1. If social assistance benefits are granted as a loan in accordance with Section 91 of the German Social Code, Book XII (SGB XII) in the legal form of an administrative act, the benefit provider must decide on the loan modalities (in particular amount, due date and repayment, security, and, if applicable, interest) at its own discretion.
2. In the case of a loan due to assets that cannot be immediately realized in the form of a capital life insurance policy, it is generally advisable to allow the beneficiary to retain the portion of the maturity benefit based on their own contributions after becoming dependent on social assistance.
3. In this case, it is generally an error of discretion if the authority demands interest on the loan amount and additionally a share of the contractual increase in value of the life insurance policy.
4. In the case of a combined capital life and disability insurance policy, when assessing the economic viability of a cancellation by comparing paid premiums and surrender value, the portions of the premiums paid towards the disability insurance remain unconsidered.
sozialgerichtsbarkeit.de
++ Note: See also the blog post by attorney L. Zimmermann on the German Social Code, Book II (SGB II).
Is there a time limit up to which gifted or transferred assets (life insurance) are still taken into account for the applicant?
sozialrechtsexperte.blogspot.com
Author of the legal case ticker: Willi 2 from Tacheles
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
