1. Decision of the Federal Social Court of 27.08.2011 on basic income support for job seekers (SGB II))
1.1 – BSG, Judgment of 27.08.2011, – B 4 AS 1/10 R –
Compensation for unlawful one-euro job – Hartz IV recipient has no claim to wages because her employment was not based on an employment relationship.
During this period, she was instead taking advantage of a work opportunity in exchange for additional compensation; such work does not constitute an employment relationship according to explicit legal regulations. The existence of a work opportunity in exchange for additional compensation is evident from the specific circumstances of how the work came about and how it was carried out.
The work performed at the instigation of the job center constituted a work opportunity with additional expense allowance. This is not a case in which a claim for wages could be possible due to a disconnect between the placement in a work opportunity and entirely different job content.
The increase in assets required for a reimbursement claim is relevant if the work opportunity lacks the "additional" nature of the work. Since the work was then performed in fulfillment of a task that would have had to be carried out in any case, the benefiting job center gained a financial advantage through the saved, but necessary, expenses for fulfilling this task.
Insofar as there has been an increase in assets in this respect, the job center must be credited with the service provided by the plaintiff, irrespective of the fact that the work opportunity was carried out at the Arbeiterwohlfahrt (Workers' Welfare Association).
If the State Social Court concludes that the cleaning work is not additional to the existing services, it will then have to examine whether this transfer of assets occurred without legal basis. A legally binding assignment order or an integration agreement would generally serve as the legal basis for such a transfer. The assignment letter addressed to the plaintiff cannot be considered an administrative act due to the lack of a conclusive provision. The absence of a specific description of the work to be performed by the recipient of assistance is essential because the job center alone remains responsible for the suitability of the measure in terms of the recipient's integration into the workforce.
juris.bundessozialgericht.de
Note: see also the post on the blog of attorney L. Zimmermann.
Case note from the Federal Social Court (BSG) No. 15/11 of August 16, 2011 – Hartz IV – Claim for reimbursement in the case of one-euro jobs – B 4 AS 1/10 R –
Federal Social Court (BSG), Judgment of 13 April 2011, – B 14 AS 98/10 R – (not yet published)
According to the jurisprudence of the 14th Senate of the Federal Social Court, under certain conditions, a benefit recipient may have a public-law claim for reimbursement against the job center under the German Social Code, Book II (SGB II). If Hartz IV recipients are unlawfully assigned one-euro jobs, they are entitled to back payment of the collectively agreed wage.
sozialrechtsexperte.blogspot.com
2. Decisions of the Federal Social Court of 23 August 2011 on basic income support for job seekers (SGB II)
2.1 – BSG, Judgment of 23.08.2011, – B 14 AS 74/10 R –
How much money is a grandmother allowed to give her "welfare-dependent grandchildren"?
Following a suggestion from the Federal Social Court, the job center acknowledged the claim.
Note: See also the post on the blog of attorney L. Zimmermann
sozialrechtsexperte.blogspot.com
2.2 – BSG, judgments of 23.08.2011, – B 14 AS 185/10 R- and – B 14 AS 186/10 R –
Hartz IV recipients may keep electricity cost reimbursements.
In principle, refunds of advance payments from energy supply contracts are to be considered income and not assets during the benefit period. However, according to the purpose of Section 11 Paragraph 1 of the German Social Code, Book II (SGB II), a refund of household energy costs based on advance payments from periods when the recipient was in need of assistance cannot be considered income, because these payments for household energy cover a basic need that is part of the standard benefit. Income resulting from savings on standard benefit payments is generally exempt from being considered income throughout the respective benefit period.
juris.bundessozialgericht.de
Note: see also the post on the blog of attorney L. Zimmermann.
What's the deal with the saved electricity costs? The Federal Social Court prevents job centers' cost-cutting trick.
sozialrechtsexperte.blogspot.com
2.3 – BSG, Judgment of 23.08.2011, – B 14 AS 91/10 R –
Federal Social Court criticizes calculation of reasonable accommodation costs under Hartz IV.
Job centers are not allowed to simply use the average rents paid by Hartz IV recipients as a basis for determining reasonable accommodation costs, as this does not comply with the requirements of the Federal Social Court (BSG) for determining a coherent concept.
juris.bundessozialgericht.de
Note: see also the post on the blog of attorney L. Zimmermann.
Welt-online reports: "Federal Social Court: Hartz IV recipient may keep house on the North Sea."
sozialrechtsexperte.blogspot.com
3. Decisions of the Federal Social Court of 21 June 2011 on basic income support for job seekers (SGB II)
3.1 – BSG, Judgment of 21.06.2011, – B 4 AS 21/10 R –
A lack of official investigation can – never – be grounds for only a provisional grant of unemployment benefit II – revocation of administrative act due to income generation
Conversely, the final decision is not a suitable instrument in cases where – not due to an incorrect exercise of the duty to investigate officially, but – there is objectively only the possibility of a prospective estimate of, for example, the income situation.
A final approval with a reduction in the benefit amount based on a prospective estimate of income without legal authority to do so is unlawful (BSGE 93, 51 = SozR 4-4100 § 115 No. 1).
However, if the agency makes a final decision and does not only grant provisional benefits, the standard for reviewing the revocation decision is Section 45 or Section 48 of the German Social Code, Book X (SGB X).
According to Section 48 of the German Social Code, Book X (SGB X), an administrative act with continuing effect must be revoked if there is a significant change in the factual or legal circumstances that existed at the time of its issuance. Section 45 of the SGB X stipulates that an administrative act that establishes or confirms a right or a legally significant advantage (a favorable administrative act), insofar as it is unlawful, may be revoked in whole or in part, even after it has become legally binding, subject to the restrictions of paragraphs 2 to 4.
Section 45 of the German Social Code, Book X (SGB X) therefore applies if the administrative act was already unlawful at the time of its issuance and is to be amended for that reason. The two provisions are distinguished according to the objective circumstances at the time the administrative act to be revoked was issued (see BSGE 96, 285 = SozR 4-4300 § 122 No. 4, para. 13; BSGE 59, 206 = SozR 1300 § 45 No. 20, p. 68 and BSGE 65, 221 = SozR 1300 § 45 No. 45, p. 141; see also the Senate's judgment of December 16, 2008 – B 4 AS 48/07 R – and most recently the Federal Social Court's judgment of February 24, 2011 – B 14 AS 45/09 R).
In principle, the administration is obliged to fully clarify the facts before issuing a decision (BSG judgment of 28.6.1990 – 4 RA 57/89 – BSGE 67, 104, 113 ff = SozR 3-1300 § 32 No. 2; BSGE 82, 183 = SozR 3-4100 § 71 No. 2 with further references; BSGE 93, 51 = SozR 4-4100 § 115 No. 1) in order to establish the objective circumstances.
3.2 – BSG, Judgment of 21.06.2011, – B 4 AS 128/10 R –
Upon admission to closed custody to serve a substitute custodial sentence, the applicant is excluded from benefits under the German Social Code, Book II (SGB II), pursuant to Section 7 Paragraph 4 of the SGB II.
This exclusion of benefits also applies if the person in need of assistance is serving a substitute prison sentence in a correctional facility.
In accordance with the legal opinion of the Court of Appeal, the 14th Senate of the Federal Social Court (BSG) ruled on Section 7 Paragraph 4 Sentence 2 of the German Social Code, Book II (SGB II), in the version applicable here, that the exclusion from benefits from the first day of admission to the institution (BSG judgment of September 6, 2007 – B 14/7b AS 16/07 R, BSGE 99, 88 ff = SozR 4-4200 § 7 No. 7, para. 16) also applies if the person in need of assistance is serving a substitute custodial sentence pursuant to Section 43 of the German Criminal Code (StGB) in a correctional facility, because he is also in an institution for the execution of judicially ordered deprivation of liberty (BSG judgment of February 24, 2011 – B 14 AS 81/09 R, para. 20).
The reason for the omission of the substitute custodial sentence in the criminal judgment in cases of non-payment of the fine is that the conversion factor between the fine and the substitute custodial sentence is already determined by law, leaving the criminal judge no room for independent decision in this regard (§ 43 para. 2 of the German Criminal Code). In every conviction for a fine, the substitute custodial sentence in the event of non-payment is implicitly considered and imposed, and replaces the fine as a genuine penalty without any further legal act (Federal Social Court judgment of February 24, 2011 – B 14 AS 81/09 R, para. 21).
Furthermore, it can remain undecided whether the functional concept of an institution developed by the 14th Senate in its decision of September 6, 2007 (B 14/7b AS 16/07 R, BSGE 99, 88 ff = SozR 4-4200 § 7 No. 7) requires further modifications in light of the legal situation following the Further Development Act. In any case, the explicit and specific regulation concerning institutions for the execution of judicially ordered deprivations of liberty pursuant to Section 7 Paragraph 4 Sentence 2 of the German Social Code, Book II (SGB II), indicates that these institutions occupy a special position. In this respect, it is no longer relevant whether, by their nature, they preclude taking up employment of at least three hours per day on the general labor market; rather, benefits are generally excluded. The legislative decision to equate residence in a prison with residence in an inpatient facility – without further examination of whether such a facility exists – is also supported by the explanatory memorandum to the law, according to which the aim is to exclude persons in these facilities from receiving benefits under the German Social Code, Book II (BSG judgment of 24 February 2011 – B 14 AS 81/09 R, para. 25, with reference to Bundestag printed matter 16/1410, p. 20)
The subjective conditions for revoking the grant notice were also met. The plaintiff failed to inform the defendant of his incarceration in prison upon commencing his substitute custodial sentence.
His obligation to provide information arises from Section 60 Paragraph 1 Sentence 1 No. 2 of the German Social Code, Book II (SGB II), according to which anyone who applies for or receives social benefits must immediately report changes in circumstances that are relevant to the benefit.
The plaintiff grossly negligently breached this duty. According to the established case law of the Federal Social Court (BSG), a subjective standard must be applied when assessing gross negligence. (BSG Judgment of October 29, 2008 – B 11 AL 52/07 R – SozR 4-4300 § 118 No. 2, para. 20; BSG Judgment of July 13, 2006 – B 7a AL 16/05 R – SozR 4-4300 § 122 No. 5, para. 14).
Note: See also the post on the blog of attorney L. Zimmermann
No unemployment benefit II while serving a substitute prison sentence in prison.
sozialrechtsexperte.blogspot.com
4. Decision of the Federal Social Court of 13 April 2011 on basic income support for job seekers (SGB II)
4.1 – BSG, Judgment of 13 April 2011, – B 14 AS 106/10 R –
Federal Social Court overturns Freiburg rent limits for Hartz IV recipients - review of the appropriateness of the heating allowance.
The Federal Social Court (BSG) has now rejected the concept of the city of Freiburg because, contrary to the opinions of the lower courts, it does not meet the requirements for the plausibility of a concept for determining the limit of appropriateness according to § 22 para. 1 SGB II, which the BSG has developed.
The assessment of the appropriateness of heating costs must not only be carried out separately from that for accommodation, but also according to its own rules: In the absence of other figures, the appropriateness of heating costs is to be affirmed as long as the costs remain below the threshold of a nationwide or municipal heating cost index (Federal Social Court [BSG] judgment of July 2, 2009 – B 14 AS 36/08 R – BSGE 104, 41 = SozR 4-4200 § 22 No. 23; BSG judgment of July 2, 2009 – B 14 AS 33/08 R – SozR 4-4200 § 22 No. 25; BSG judgment of August 20, 2009 – B 14 AS 65/08 R – SozR 4-4200 § 22 No. 26).<Zweibrücken> Paragraph 23 ff).
Note: See also the post on the blog of attorney L. Zimmermann
When is a Hartz IV recipient not required to move according to the latest rulings of the Federal Social Court (BSG)? What reasons do not preclude a move?
Federal Social Court (BSG), Judgment of April 13, 2011, – B 14 AS 106/10 R –, paragraphs 37, 38
sozialrechtsexperte.blogspot.com
5. Decisions of the Federal Social Court of 25 August 2011 on social assistance (SGB XII)
5.1 – BSG, Judgment of 25.08.2011, – B 8 SO 20/10 R –
Unemployed people don't have to settle for a standard funeral
Misinformation from the social welfare agency or a refusal to comment on the amount of reasonable funeral costs according to § 74 SGB XII can, in individual cases, lead to objectively unreasonable costs being subjectively deemed necessary.
Assumption of reasonable funeral costs by the social welfare provider not according to flat-rate reimbursement rates
The 8th Senate of the Federal Social Court ruled on August 25, 2011, that necessary funeral expenses are not to be covered by the social welfare provider according to flat-rate reimbursement rates, but rather that the appropriateness of the individual costs claimed, as well as the overall package, must be determined.
The plaintiff, who received unemployment benefit II, claimed funeral expenses from the social welfare agency, expenses she incurred following the death of her husband. The agency reduced the funeral home's invoice by over €950. The Higher Social Court dismissed the claim for payment of this amount, ruling that the funds provided by the defendant were sufficient for a dignified, yet simple funeral appropriate to local circumstances, and that the defendant's established reimbursement rates were comprehensible and plausible. The court further held that costs exceeding the defendant's reimbursement rates were not necessary within the meaning of the law (§ 74 SGB XII).
The Federal Social Court did not accept this line of reasoning; rather, the necessity of the individual services provided by the funeral director, the amount of the costs charged for each service, and an overall assessment of the total sum in light of local circumstances must be examined. It is particularly important to note that private individuals liable for reimbursement are generally subject to less favorable contractual conditions than social welfare agencies, and that the person responsible for arranging the funeral, who is already in a particularly stressful situation, will typically not have the time before the funeral to obtain different quotes from funeral directors in order to select the cheapest option.
That is precisely why they are particularly dependent on advice from the social welfare provider, insofar as they inquire about the amount of reasonable costs.
Misinformation from the social welfare agency or a refusal to comment on the amount of reasonable costs can therefore, in individual cases, lead to objectively unreasonable costs being subjectively necessary if the actual costs are not in such a conspicuous disproportion to the reasonable costs that this should have been immediately apparent to the person responsible for the funeral.
5.2 – BSG, Judgment of 25.08.2011, – B 8 SO 19/10 R –
Does retirement savings need to be liquidated?
A case of hardship according to § 90 para. 3 SGB XII is to be denied if the surrender value of the capital life insurance falls short of the sum of the paid-in contributions by only about 11%.
Before basic income support is granted, personal assets must be used up. The social welfare agency must examine whether and in what form the life insurance policy could be legally and practically liquidated.
Even assuming legal and factual usability (e.g., through pledging even after an agreement to exclude usability), it would still have been necessary to examine whether special circumstances existed that necessitated additional old-age security.
Note: See also the post on the blog of attorney L. Zimmermann
Does a case of hardship within the meaning of Section 90 Paragraph 3 of the German Social Code, Book XII (SGB XII) exist if a person in need of assistance has to use their savings for retirement shortly before reaching retirement age, even though their pension insurance has gaps due to self-employment? They were unable to make any further provisions for retirement before reaching retirement age due to their disability pension.
(sozialrechtsexperte.blogspot.com
5.3 – BSG, Judgment of 25.08.2011, – B 8 SO 29/10 R –
According to the case law of the Federal Social Court (BSG), accommodation costs are not to be divided nominally if an adult person lives in a household community with a non-needy person and neither the constellation of a benefit community according to the German Social Code, Book II (SGB II) nor of a community of action according to the German Social Code, Book XII (SGB XII) exists.
Note: See also the post on the blog of attorney L. Zimmermann
sozialrechtsexperte.blogspot.com
6. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
6.1 – State Social Court of Saxony-Anhalt, decision of June 7, 2011, – L 5 AS 158/10 B ER –
According to the case law of the Federal Social Court (BSG, judgment of March 22, 2010, file number: B 4 AS 68/09 R, paragraph 13), a reduction pursuant to Section 31 Paragraph 4 No. 3 Letter b SGB II due to a sanction period event does not require prior notification of legal consequences.
According to the Federal Social Court (BSG, loc. cit., para. 14), the provision is not only applicable to breaches of duty that occurred before an application was submitted or the commencement of benefits under Book II of the German Social Code (SGB II). While the legislator, in many scenarios, specifically referred to the newly created obligations for SGB II recipients under basic income support law in paragraphs 1, 2, and 4 of Section 31 SGB II when differentiating the grounds for reduction and termination of benefits, it must therefore be examined in each individual case, irrespective of whether benefits under SGB II are being received, whether the breach of duty falls under the sanction provision in Section 31 para. 4 no. 3 letter b SGB II with regard to the waiting period regulations of Section 144 para. 1 sentence 2 nos. 1 to 7 SGB III. However, the application of this sanction provision requires that the conduct demanded of the person in need of assistance is not already covered by Section 31 Paragraph 1 of the German Social Code, Book II (SGB II), and that the event relevant to the waiting period occurs at a time when the person in need of assistance has a relationship to the legal framework of the German Social Code, Book III (SGB III).
6.2 – State Social Court of Saxony-Anhalt, decision of 07.07.2011, – L 5 AS 177/11 B ER –
The costs of accommodation and heating according to § 22 para. 1 SGB II can also include additional charges for ancillary costs from expired billing periods.
According to the Federal Social Court's (BSG) jurisprudence, a claim for benefits to cover the additional payment exists even if it is due to the fact that deductions were not granted in the legally prescribed amount. If benefits sufficient to cover needs have been granted but not paid in the approved amount, this constitutes a debt for which only a loan is an option (BSG, Judgment of March 22, 2010, B 4 AS 62/09 R).
There is no imminent threat of homelessness within the meaning of sentence 2 of the regulation. However, there is a "comparable emergency situation" within the meaning of sentence 1 of the regulation (Eicher/Spellbrink, Basic Income Support for Job Seekers, 2nd ed. § 22, para. 105). The assumption of energy debts is therefore at the discretion of the respondent, provided it is justified to alleviate an emergency.
The distinctive feature of discretionary benefits is that, in a constitutionally permissible manner, the law does not prescribe a specific legal consequence for the administration when the substantive requirements are met in a particular case. In such cases, the appellant is only entitled to the proper exercise of discretion under Section 39 of Book One of the German Social Code – General Part (SGB I), but not to a specific benefit. When discretionary power exists, judicial review is limited to the question of whether the respondent based their decision on an accurate and fully ascertained set of facts and whether they adhered to and observed the limits determined abstractly by interpreting the indeterminate legal term.
There is no indication here that the respondent's decision not to grant a loan was flawed due to an abuse of discretion. A right to this single possible lawful decision exists only if discretion can only be exercised lawfully in one specific way and any other decision would be unlawful. However, a "reduction of discretion to zero" only occurs if, based on the established facts, any other decision-making process is legally impossible.
In principle, even within the framework of preliminary legal protection proceedings, except in cases where discretion is reduced to zero, the authority must be left some leeway to exercise the discretion imposed upon it.
The assumption of debt by means of a loan is not justified within the meaning of Section 22 Paragraph 8 Sentence 1 of the German Social Code, Book II (SGB II), which is why the prerequisites for the respondent to exercise discretion are not met.
6.3 – State Social Court of Saxony-Anhalt, decision of 06.07.2011, – L 5 AS 226/11 B ER –
An application pursuant to Section 44 of the German Social Code, Book X (SGB X) does not change the finality (Section 77 of the German Social Courts Act (SGG)) of the original decision as long as it has not been fully or partially granted (see Higher Social Court of Lower Saxony-Bremen, decision of March 28, 2011, file no.: L 13 AS 82/11 B ER, para. 8; Higher Social Court of Berlin-Brandenburg, decision of January 27, 2011, file no.: L 14 AL 373/10 B ER, para. 3).
The Bavarian State Social Court (decision of September 23, 2010, file no.: L 7 AS 651/10 B ER, juris RN 19) concludes that an application for an interim injunction can only become admissible (again) once the review application has been submitted to the authority and a sufficient processing period has been granted, with explanation and, if necessary, substantiation of the urgency of the review.
It also points out that such a review request cannot be filed with the court because this court is not a benefit provider within the meaning of Section 16 of the First Book of the Social Code – General Part (SGB I).
6.4 – Baden-Württemberg State Social Court, decision of 11 August 2011, – L 12 AS 3144/11 ER-B –
Regarding the question of the necessity of moving to a larger apartment within the meaning of Section 22 Paragraph 4 Sentence 2 of the German Social Code, Book II (SGB II).
The accommodation of two schoolchildren of different genders in a room measuring 9 m² necessitates a move to a larger apartment.
According to Section 22 Paragraph 4 of the German Social Code, Book II (SGB II), before concluding a lease for new accommodation, an employable person entitled to benefits must obtain a commitment from the local authority previously responsible for providing benefits regarding the consideration of the costs for the new accommodation. The local authority is obligated to provide this commitment if the move is necessary and the costs for the new accommodation are reasonable. Accordingly, Section 22 Paragraph 1 Sentence 2 of the SGB II stipulates that only the previous level of need will be recognized if, following a move that was not necessary, the reasonable costs for accommodation and heating increase. According to the legislator's intent (Bundestag Printed Matter 16/1410, p. 23), accommodation costs should be limited to the previous reasonable costs if those in need of assistance move to an apartment with higher, but still just reasonable, costs, after exhausting the limits for reasonable housing costs set by the local authority. This regulation was intended to limit benefit fraud and prevent cost increases for housing costs within municipal boundaries (cf. Federal Social Court (BSG) SozR 4-4200 § 22 No. 35 = BSGE 106, 147).
By only exceptionally covering higher accommodation costs than those previously recognized as reasonable – even within the limits of reasonableness – the person in need of assistance is prevented from exhausting their maximum benefit entitlement if their subsistence needs are already adequately covered (cf. Saxon State Social Court, decision of March 4, 2011 – L 7 AS 753/10 B ER – (juris); Lang/Link, in Eicher/Spellbrink SGB II, 2nd edition, § 22 para. 47a).
The desired assurance is not precluded by the fact that the move would not be necessary. For a move to be deemed necessary, there must first be a plausible, comprehensible, and understandable reason that would also motivate someone not receiving social assistance (see Berlit in LPK-SGB II, 3rd edition, § 22, marginal note 84). This alone, however, is insufficient, because under the German Social Code, Book II (SGB II), only simple housing that meets basic needs can be required (see Federal Social Court [BSG] SozR 4-4200 § 22 No. 3 = BSGE 97, 254), while those not receiving social assistance are not subject to such restrictions. Therefore, a mere intention to gain more space or living comfort, for example through better amenities or a quieter location, cannot generally justify the necessity of a move if all other circumstances remain unchanged (see Higher Social Court [LSG] Mecklenburg-Vorpommern – judgment of May 7, 2009, loc. cit.).
The anticipation of the main issue associated with this decision is exceptionally permissible, as otherwise the asserted right would be jeopardized (see Krodel, Das sozialgerichtliche Eilverfahren [The Social Court's Expedited Proceedings], 2nd edition, paras. 306 ff., 310). The assurance pursuant to Section 22 Paragraph 4 of the German Social Code, Book II (SGB II) aims to provide the recipient of assistance with legal certainty regarding the allocation of costs before entering into a civil law obligation with the new landlord. A merely provisional arrangement does not appear practical in this respect, so that in the present preliminary injunction proceedings, the order to issue the assurance must be issued (see Higher Social Court of Mecklenburg-Western Pomerania, decision of October 28, 2008, loc. cit.).
Note: See also the post on the blog of attorney L. Zimmermann
sozialrechtsexperte.blogspot.com
6.5 – Baden-Württemberg State Social Court, decision of 10 August 2011, – L 13 AS 2220/11 B –
Regarding the material validity (binding effect) of a set-off declared by a legally binding administrative act.
The legal question of whether, in social law, offsetting must be carried out by administrative act or by public-law declaration of intent is controversial (cf. BSG judgment of December 16, 2009, B 7 AL 43/07 R; regarding offsetting, see the referral decision of the BSG of February 25, 2010, B 13 R 76/09 R, also cited by the SG).
However, for the German Social Code, Book II (SGB II), the legislator has now stipulated in Section 43 Paragraph 4 Sentence 1 SGB II, effective from April 1, 2011, that the offsetting must be declared by administrative act.
If the defendant was correct in issuing an administrative act (§ 31 SGB X) on July 17, 2006, establishing a "rule on set-off", it will be necessary to examine the legal consequences (substantive legal force; binding effect) resulting from the legally binding administrative act; if the defendant was wrong to issue a "rule on set-off" in the form of an administrative act, the binding effect is questionable.
The 13th Senate of the Federal Social Court (BSG) (loc. cit., para. 49) assumes that if the offsetting – the same applies to set-off – may be effected by administrative act, a binding effect arises that can only be corrected via Section 44 of the German Social Code, Book X (SGB X). However, doubts then arise as to the extent of the binding effect (Meyer-Ladewig/Keller/Leitherer, Commentary on the Social Courts Act (SGG), 9th edition, Section 77 SGG, para. 5 et seq.). The question is whether a non-existent counterclaim is established or determined by the binding effect, and whether an actually existing principal claim is extinguished (see the BSG's answer decision of September 22, 2009, B 4 SF 1/09 S, published in juris, para. 11, and the referral decision, loc. cit., para. 49).
Then, conversely, a counterclaim actually existing by the authority would also have to be extinguished with final effect if the administration has offset a claim against a non-existent principal claim of the social benefit recipient. The Federal Fiscal Court (BFH) has held the view that the legal consequences of an offset effected by administrative act do not extend beyond the constitutive effects of a civil law declaration of intent (§ 388 BGB) regulated in § 389 of the German Civil Code (BGB), since it is not definitively established that the offset effect has occurred, as this depends on the substantive requirements of § 387 BGB (reciprocity, similarity, maturity) (BFHE 149, 482).
Finally, it is questionable whether comprehensive substantive legal force also occurs if there is no actual administrative act (for the definition, see Kopp/Ramsauer, Commentary on the Administrative Procedure Act [VwVfG], 11th edition, § 35 VwVfG, marginal note 3). Apart from provisions deviating from this in special legislation (see, for example, now § 43 para. 4 sentence 1 SGB II), an administrative act exists only if it fulfills the statutory criteria, and there is no administrative act if it is designated as such but does not meet these criteria (Kopp/Ramsauer, ibid.). The form of the administrative act may only be chosen if it is a case-specific regulation with external effect (see Maurer, General Administrative Law, 17th edition, § 10 note 2c with further references).
This could mean that a declaration of intent issued as a "regulation" does not have the effectiveness (§ 39 SGB X) of a regulation. If the offsetting, by its very nature, does not constitute a regulation in the sense of a legal result (statutory legal consequence; see Wolff/Bachof/Stober, Administrative Law Volume 2, 6th edition, § 45 VII 1a), but is merely a declaration of intent—to which the law automatically brings about the legal consequence—this could lead to it not having the substantive legal force of a regulation. The Federal Fiscal Court (BFH), which, like the 4th Senate of the Federal Social Court (BSG) (see reply decision of September 22, B 4 SF 1/09 S, published in juris), is of the opinion that the declaration of set-off is the legally binding exercise of a right of disposition and not in itself an administrative act, has also comprehensively examined, even in the case of a set-off that has become legally binding through an administrative act, whether the declaration of set-off is effective as a legally binding declaration of intent (BFH, judgment of July 18, 1989, VII R 46/86, published in juris).
Contrary to the opinion of the Social Court, if the validity of the set-off is to be examined, it must be established that the defendant's counterclaim arose validly through the legally binding reimbursement order of July 17, 2006. However, the other prerequisites for a set-off would also have to be examined. Insofar as the defendant invokes Section 43 of the German Social Code, Book II (SGB II), its prerequisites, such as grossly negligent false statements, are by no means clear, since the defendant was aware of the maintenance advance payments and denied any changes; moreover, the defendant has exceeded the three-year period stipulated in Section 43 SGB II. Therefore, there is a sufficient prospect of success.
6.6 – Hessian State Social Court Judgment of 20 June 2011, – L 7 AS 255/10 –
A summons to report constitutes an administrative act – sanctions for repeated or continued breaches of duty
A summons to report constitutes an administrative act (cf. in this sense also Voelzke in Hauck/Noftz, SGB II Commentary, § 59 para. 16; Meyerhoff in: jurisPK-SGB II, 2nd ed. 2007, § 59 para. 20; contra, for example, Estelmann in the same author, SGB II – Commentary, § 59 para. 17).
Until December 31, 2008, an objection to a reporting requirement had suspensive effect – subject to the official order for immediate enforcement.
Prior to the notification of the first reduction notice, further sanctions are not possible, at least in cases of repeated or continued breaches of duty, for systematic reasons and in view of the purpose of the graduated sanction, neither as a repeated breach of duty nor as a second initial breach of duty (cf. ibid. BSG, 09.11.2010 – B 4 AS 27/10 R; Berlit in LPK-SGB II, 3rd ed. 2009, § 31 para. 86; presumably also Valgolio in Hauck/Noftz, SGB II, § 31 para. 99 and 103).
According to the systematic structure of Section 31 Paragraph 3 of the German Social Code, Book II (SGB II), in the version applicable from January 1, 2007, and also at the relevant time (hereinafter: old version; ibid., now Section 31a SGB II), this section strictly differentiated the scope of the sanction according to whether it was a first-time breach of duty, a first repeated breach, or a further repeated breach of duty (cf. in this regard and for the following also Federal Social Court [BSG], November 9, 2010 – B 4 AS 27/10 R; also Berlit in LPK-SGB II, 3rd edition 2009, Section 31, marginal note 86; idem, The Sanction System of the SGB II, ZFSH/SGB 2008, 3, 14).
Therefore, repeated failure to report requires a prior determination of another (possibly already repeated) failure to report, resulting in a reduction amount at the lower level. This system also clarifies the function of the regulation, namely to warn the person concerned against repeated breaches of duty (see also Saxon State Social Court, 01.11.2007 L 3 B 292/07 AS-ER, which speaks of an appellative and educational purpose of the provision).
If there is no repeated failure to report, an increase in the reduction amount by means of two (or more) separate reduction notices with the same reduction amount is also precluded, as this could result in a reduction of unemployment benefit II by the same or even a greater amount; otherwise, the legislative concept of a graduated reduction would be circumvented. A notice concerning a further failure to report before a notice is issued regarding the previous one cannot therefore be considered lawful, even partially, i.e., with a reduction of the same amount as the previous notice (cf. again Federal Social Court, 09.11.2010 – B 4 AS 27/10 R).
This applies, at least, if – as in the case at hand – the two sanctioned failures to report are closely related. It is already questionable whether one can even speak of a repeated breach of duty if the benefit recipient merely reaffirms a previously documented stance, for example, by repeatedly rejecting the same job offer or – as here – repeatedly failing to appear for a scheduled appointment with the same purpose and in close temporal proximity (disagreeing, for example, LPK-Berlit, loc. cit., § 31 para. 85; idem, ZFSH/SGB 2008, 3, 14; Valgolio, loc. cit., § 31 para. 103; Rixen, in: Eicher/Spellbrink, SGB II – Commentary, 2nd ed. 2008, § 31 para. 50c). In any case, a renewed sanction is not possible before the issuance of the first decision. Otherwise, the authority would be able to sanction the uniform decision of the benefit recipient regarding an identical set of circumstances by acting quickly – i.e., by issuing repeated job placement offers in rapid succession or by issuing repeated invitations at short notice – in almost any amount.
In such a case, the warning function of the initial sanction notice, and thus the purpose of the gradual reduction, is of paramount importance. Particularly in the case of sanctioning (nearly) identical or continued breaches of duty—and such a breach is evident from the applicant's submissions—the legislator's apparent expectation associated with the system of gradual reduction, namely that the first sanction should warn the benefit recipient and prompt a change in their behavior, is plausible. However, this expectation can only be fulfilled if the defendant first sanctions the behavior, thereby informing the affected party in a formal notice, and thus after a final review, that their behavior constitutes a breach of duty from their perspective and is subject to consequences, and thus providing them with a reason and opportunity to avoid further breaches of duty.
Finally, a corresponding understanding of the provision is supported by the fact that, due to the interference with the socio-cultural subsistence minimum associated with the reduction, considerations of fault and proportionality are of considerable importance in its interpretation (cf. pointedly in this sense Schmidt-De Caluwe in Estelmann, SGB II – Commentary, § 31 para. 10).
A “multiple” sanction for a breach of duty that is at least essentially uniform or continued can only be justified if a break has previously occurred through the reduction notice and the warning associated with it.
6.7 – Lower Saxony-Bremen State Social Court, Judgment of 25 May 2011, – L 13 AS 90/09 –
The legislator has stipulated in § 10 para. 1 BEEG that the exemption from crediting is limited to a maximum of EUR 300.00 per month and not “per person entitled to parental allowance”.
As a starting point, it must be taken into account that both the entitlement to parental allowance under the provisions of the Federal Parental Allowance and Parental Leave Act (BEEG) and the entitlement to basic income support benefits under the German Social Code, Book II (SGB II) are individual entitlements; thus, according to the provisions of the SGB II, the parental allowance is also to be attributed as income to the respective entitled parent (Mecke, in: Eicher/Spellbrink, SGB II, 2nd ed. 2008, § 11 para. 44).
Insofar as an individual provision is intended to constitute an exception to this principle, sufficiently clear indications in the law are required. These are not provided, in particular, by the fact that, according to Section 10 Paragraph 1 of the Federal Parental Allowance and Parental Leave Act (BEEG), parental allowance up to a total of €300.00 per month is disregarded as income. This is because the word "total" does not refer to the quantity "two parents," but rather to the quantity specified in the law as "parental allowance and comparable benefits from the federal states, as well as the benefits credited against the parental allowance pursuant to Section 3," i.e., the total amount of these benefits (see also Lenz, in: Rancke (ed.), Maternity Protection/Parental Allowance/Parental Leave, Concise Commentary, Section 10 BEEG, marginal note 2).
The interplay of Section 2 Paragraph 5 BEEG, Section 10 BEEG, and Section 11 Paragraph 3a SGB II reveals that the legislator designed the minimum parental allowance of €300.00 until the end of 2010 as a purely financial support benefit; only the amount exceeding this serves as wage replacement (see Buchner/Becker, Mutterschutzgesetz und Bundeselterngeld- und Elternzeitgesetz [Maternity Protection Act and Federal Parental Allowance and Parental Leave Act], 8th edition 2008, Section 10 BEEG, marginal note 5). The purpose of the parental allowance is thus to compensate for financial hardship during the first 12 or 14 months of a child's life and to recognize the caregiving responsibilities. Parental allowance is intended to help parents secure their livelihood without major financial hardship (see the explanatory memorandum to the draft bill in BT-Drucksache 16/1889, p. 26; see also pp. 15, 16 therein, as well as Jung, SGb 2007, 449 (453)). It follows that the parental allowance payment at this level for each of the 12 or 14 months of entitlement does not have the same purpose as the benefits under the German Social Code, Book II (SGB II) (see in this respect the provision of Section 11, Paragraph 3, No. 1 SGB II, in the version applicable at the time the benefit becomes payable – although this provision is not directly applicable within the framework of Section 11, Paragraph 3a SGB II). The explanatory memorandum to the bill also expressly states that the parental allowance is not considered a benefit under the German Social Code, Book II (SGB II). H. of 300.00 EUR does not actually lead to an increase in the available net household income for all families as income for other social benefits (explanatory memorandum to the draft law in BT-Drucksache 16/1889, p. 17).
The reference point for the aforementioned amount of €300.00 is the month of entitlement. What constitutes a month of entitlement is defined in Section 4 Paragraph 2 of the Federal Parental Allowance and Parental Leave Act (BEEG), which reads as follows: “Parental allowance is paid in monthly installments for the child’s months of life. Parents are entitled to a total of twelve monthly installments. They are entitled to two additional monthly installments if their income from employment is reduced for two months. Parents may receive the respective monthly installments alternately or simultaneously.” This makes it clear that, in principle, double receipt of the allowance in the same month is possible for the 12 or 14 months of entitlement, as was expressly intended by the legislator (see the explanatory memorandum in Bundestag printed matter 16/1889, p. 23). Section 4 Paragraph 2 Sentence 4 of the BEEG clarifies that parents may also claim the 12 or 14 monthly installments to which they are entitled simultaneously. Periods of simultaneous use of parental allowance result in a double consumption of monthly amounts and a corresponding reduction in the benefit period (explanatory memorandum, ibid., p. 23, see also p. 16). The consistent adherence to a strict principle that each month of entitlement (and its consumption) is to be attributed to one (individual) parent is also demonstrated by the rejection of an amendment proposal which would have allowed simultaneous part-time work by both parents to result in the consumption of only one month of entitlement (Bundestag printed matter 16/2785 of September 27, 2006, p. 33).
Against this background, Section 11 Paragraph 3a of the German Social Code, Book II (SGB II) stipulates that the amount pursuant to Section 10 of the Federal Parental Allowance and Parental Leave Act (BEEG) is exempt from being counted as income. This applies to the amount of €300.00 and to the month of entitlement, as is (solely) the case under the BEEG system. If there is no specific legislative objective that would require an interpretation of a provision contrary to its wording, there is no scope for judicial development of the law. Therefore, the assessment of the question of how much of the parental allowance must remain exempt from being counted as income for recipients of basic income support under the SGB II is not a matter for the courts. Rather, this is a socio-political decision solely by the legislature, which has clearly opted for the possibility of both parents receiving parental allowance simultaneously, with the consequence of using up two months of entitlement. This system of the BEEG is also acceptable for the application area of the SGB II (cf. State Social Court of North Rhine-Westphalia, decision of November 4, 2010 – L 6 AS 1118/10 B – Rn. 12).
6.8 – Lower Saxony-Bremen State Social Court, decision of June 30, 2011, – L 13 AS 176/11 B ER
The costs for the operation and repair of a motor vehicle belonging to a severely disabled person are not reimbursable under Section 21 Paragraph 6 of the German Social Code, Book II (hardship case).
6.9 – North Rhine-Westphalia State Social Court, decision of 22.08.2011, – L 6 AS 525/11 B –
According to Section 73a Paragraph 1 Sentence 1 of the Social Courts Act (SGG) in conjunction with Section 114 of the Code of Civil Procedure (ZPO), one of the prerequisites for the granting of legal aid is that the intended legal action offers sufficient prospects of success.
A sufficient prospect of success exists if, after preliminary examination, the court considers the applicant's position to be correct or at least tenable based on the description of the facts and the available documents, and is convinced of the possibility of proving this position (see Leitherer in Meyer-Ladewig/Keller/Leitherer, SGG, 9th ed. 2008, § 73a para. 7a; established case law of this panel, e.g., decision of March 23, 2010 – L 6 B 141/09 AS). Success need not be certain, but must, based on the circumstances to date, have a certain probability. If success on the merits is not entirely impossible, but the chance of success is only remote, the application for legal aid may be rejected (Federal Constitutional Court decision of March 13, 1990 – 2 BvR 94/88, juris para. 26 – BVerfGE 81, 347). Anticipation of evidence is possible within narrow limits. However, if the taking of evidence is seriously being considered and there are no concrete and comprehensible indications that it would very likely be to the applicant's detriment, legal aid is generally to be granted (Federal Constitutional Court decision of September 29, 2004 – 1 BvR 1281/04, juris para. 14 – NJW-RR 2005, 140).
6.10 – North Rhine-Westphalia State Social Court, Judgment of June 28, 2011, – L 6 AS 24/09 –
Recovery of ALG II benefits if the person in need of assistance has failed, at least through gross negligence within the meaning of Section 45 Paragraph 2 Sentence 3 No. 2 SGB X, to provide information on the shared use of the apartment by the grandson of the life partner.
If several people share an apartment, the actual accommodation costs of each individual are generally to be determined by dividing the actual housing costs according to the number of people (BSG judgment of 18.02.2010 – B 14 AS 73/08 R Rn 24 – SGb 2010, 226).
Since the applicant lived in an apartment together with her partner and his
grandson, she was entitled to one-third of the accommodation costs. No grounds are apparent that could justify an exceptional case with a different allocation (cf. e.g., Federal Social Court judgment of October 19, 2010 – B 14 AS 50/10 R, para. 19: temporary sole use of the apartment).
Gross negligence, according to the legal definition in Section 45 Paragraph 2 Sentence 3 Number 3 of the German Social Code, Book X (SGB X), exists when the beneficiary has violated the required standard of care to a particularly serious degree. Such a violation of the required standard of care occurs when someone fails to consider even the simplest, most obvious factors and therefore disregards what would be clear to anyone in the given situation. The degree of negligence is to be assessed in particular according to the individual's capacity for judgment and critical thinking, their insight, and the specific circumstances of the case (Federal Social Court judgment of February 8, 2001 – B 11 AL 21/00 R, paragraph 23 with further references – SozR 3-1300 § 45 No. 45).
The requirement of definiteness pursuant to Section 33 of the German Social Code, Book X (SGB X) is satisfied if the operative part of an administrative act – as in this case – is internally consistent and enables the affected party, based on the information available to a reasonable recipient (if necessary, by referring to the reasoning of the administrative act, the documents attached to it, previous administrative acts between the parties, or publicly accessible documents; see Higher Social Court of North Rhine-Westphalia, judgment of January 25, 2011 – L 6 AS 37/10 with further references, in particular Federal Social Court, judgment of February 6, 2007 – B 8 KN 3/06 R, para. 38 – Breith 2008, 240; also Federal Social Court, judgment of December 17, 2009 – B 4 AS 30/09 R, para. 16), to adjust their conduct accordingly (Federal Social Court, judgment of December 17, 2009 – B 4 AS 30/09 R Rn 16 – SozR 4-4200 § 31 No. 3).
The fact that the calculation sheet was not demonstrably attached to the notification is irrelevant.
Only the operative part of an administrative act is subject to the requirement of sufficient definiteness, not its grounds (Federal Social Court judgment of February 6, 2007 – B 8 KN 3/06 R, para. 38 – Breith 2008, 240). Accordingly, the calculation of the total amount of the repayment claim is not a question of the administrative act's substantive definiteness within the meaning of Section 33 of the German Social Code, Book X (SGB X), but rather of sufficient justification within the meaning of Section 35 of the SGB X (Higher Social Court of North Rhine-Westphalia judgment of January 25, 2011 – L 6 AS 37/10). This justification can be provided subsequently up to the final instance of fact-finding in social court proceedings, pursuant to Section 41, para. 1, no. 2, para. 2 of the SGB X.
6.11 – North Rhine-Westphalia State Social Court, decision of 19 August 2011, – L 7 AS 657/11 B –
Granting of legal aid is necessary because it needs clarification whether the assumption of costs for rent arrears is excluded even in the case of a slightly overpriced apartment, if, as here, the rent was paid in full for a longer period following the arrears and it is therefore doubtful whether new rent arrears and a renewed termination of the lease are to be expected in the future.
The prospects of success in the present proceedings are not precluded simply because, in the defendant's opinion, the accommodation costs are not reasonable and the assumption of rent arrears is not an option in such cases (see decision of the adjudicating Senate of 29 October 2009, file no.: L 7 B 363/09 AS ER, para. 4 with further references)
It should also be taken into account that the Federal Social Court (BSG) is currently considering, under file number B 4 AS 109/11 R, the question of whether, for the determination of the appropriateness of the size of the dwelling within the meaning of Section 22 Paragraph 1 Sentence 1 of the Second Book of the Social Code (SGB II) in North Rhine-Westphalia, since January 1, 2010, the "Administrative Regulations of the State of North Rhine-Westphalia on the Housing Allocation Act" should no longer be applied, but rather the "Residential Space Usage Regulations" issued on the "Act on the Promotion and Use of Housing for the State of North Rhine-Westphalia" of December 8, 2009.
Note: See also the post on the blog of attorney L. Zimmermann
North Rhine-Westphalia State Social Court decisions of 25 May 2011, – L 12 AS 381/11 B ER – and – L 12 AS 422/11 B –
sozialrechtsexperte.blogspot.com
7. Decisions of the social courts on basic income support for job seekers (SGB II)
7.1 – Berlin Social Court decision of 03.08.2011, – S 55 AS 1349/10 –
Claim for reimbursement of costs in the case of a settled action for failure to act; application for review; lack of a social security relationship; right to a decision
1. If the initiation of an administrative procedure cannot be requested pursuant to Section 18 of the German Social Code, Book Ten (SGB 10), there is also no procedural right to a decision, even if an application has been submitted.
2. If neither an obligation to initiate administrative proceedings nor a claim to a decision is at least alleged, the action for failure to act lacks standing within the meaning of Sections 88, 54 Paragraphs 1 and 2 of the Social Court Act (SGG).
3. If the authority rejects an application “as inadmissible” because no social law relationship exists and therefore no entitlement to a decision exists, and thus refuses to conduct an administrative procedure, this is a so-called formal administrative act which cannot be considered a success of the legal action within the framework of the cost decision of a settled action for failure to act.
7.2 – Current case law of the Social Court Stuttgart on Hartz IV
1. Social Court Stuttgart decision of 23.05.2011, file number: S 11 AS 2585/11 ER
Costs for prescription drugs that are not covered by health insurance are covered by the standard allowance to secure subsistence.
2. Stuttgart Social Court, Judgment of June 28, 2011, Case No.: S 3 AS 5232/08:
No sanction for an unlawful warning issued by the employer
3. Stuttgart Social Court, decision of November 5, 2010, file number: S 15 AS 5833/10 ER:
Rental income from a condominium must also be considered as income if the benefit recipient has assigned all claims arising from the tenancy to the bank for debt repayment.
4. Stuttgart Social Court, decision of June 6, 2011, file no.: S 24 AS 2153/11 ER; confirmed by the Baden-Württemberg State Social Court, decision of July 18, 2011, file no.: L 2 AS 2821/11 ER-B. If
a person in need of assistance repeatedly fails to make job applications and does not attend an interview without a justifiable reason, this can lead to the loss of their entitlement to unemployment benefit II for a period of three months.
5. SG Stuttgart Judgment of 17.01.2011, Case No.: S 14 AS 5664/10
The distribution of the crediting of an income tax refund as income to be taken into account for unemployment benefit II over a period of six months is not objectionable insofar as this satisfies the purpose of the distribution, namely to prevent the person in need of assistance from falling out of the benefit system.
6. Stuttgart Social Court, judgment of March 21, 2011, file number: S 14 AS 7628/10:
Trainees in vocational school classes who do not live with their parents and receive benefits under the Federal Training Assistance Act (BAföG) are not entitled to a subsidy for their accommodation costs under the German Social Code, Book II (SGB II – Basic Income Support for Job Seekers). The list of those eligible for subsidies in the SGB II is exhaustive.
7. Stuttgart Social Court, Judgment of September 2, 2010, Case No.: S 24 AS 8578/08:
The assumption of costs for cosmetic repairs during an ongoing tenancy as housing costs by the Job Center requires that the person in need of assistance is obligated to their landlord to carry out such cosmetic repairs. Otherwise, a claim for this is only possible in exceptional cases, for example, if the apartment has become uninhabitable and there is no enforceable claim against the landlord for renovation of the apartment.
8.SG Stuttgart Judgment of 28.03.2011, Case No.: S 25 AS 8172/10
A legal basis for the reimbursement of costs for the purchase of a more modern, energy-efficient refrigerator as a replacement for a functioning older refrigerator is not found in the SGB II (Social Code Book Two – Basic Income Support for Job Seekers).
9. SG Stuttgart Judgment of 18.03.2011, Case No.: S 6 AS 7808/09
Heating cost claims that arise after regular assumption of the heating cost prepayments or deductions of the respective months are considered one-off payments and belong to the current needs in the month in which they are due.
10. Stuttgart Social Court, Decision of June 1, 2011, S 6 AS 2715/11 ER)
In preliminary injunction proceedings, basic income support benefits cannot generally be claimed for benefit periods that have already expired. An exception may be made if a severe, irreparable, and unreasonable disadvantage is credibly demonstrated and a particular need for remediation resulting from the denial of benefits in the past will continue into the future, or if a claim clearly exists.
Part 2 of the Tacheles case law ticker for week 35/2011 can be found here.
