1. Decisions of the state social courts on basic income support for job seekers (SGB II)
1.1 – North Rhine-Westphalia State Social Court, decision of 25 August 2011, – L 19 AS 2192/10 B –
The decisive factor for the interpretation of a decision is not its heading, but its regulatory content.
In the case of an amendment notice reducing a benefit granted under the German Social Code, Book II (SGB II) for July 2008, its regulatory content constitutes a revocation decision concerning the period of July 2008 (see Federal Social Court (BSG) judgment of November 9, 2010 – B 4 AS 37/09 R), the legality of which is to be assessed according to the provisions of Sections 40 SGB II, 330 SGB III, and 45 et seq. SGB X.
The conditions of Section 48 Paragraph 1 Sentence 2 No. 3 of the German Social Code, Book X (SGB X) for the partial revocation of the granted benefit are met due to the receipt of further remuneration of EUR 180.00 in July 2008 (cf. regarding the consideration of subsequently paid remuneration: Federal Social Court (BSG) judgment of July 30, 2008 – B 14 AS 43/07 R).
1.2 – North Rhine-Westphalia State Social Court, decision of 08.08.2011, – L 19 AS 760/11 B –
Granting of legal aid is not permitted, as the issue of whether Section 36 of the German Social Code, Book II (SGB II), applicable here in the version valid until December 31, 2010, contains a requirement for benefits beyond the formal regulation of local jurisdiction, or whether it regulates a supplementary eligibility requirement compared to the basic provision of Section 7 Paragraph 1 SGB II, is disputed in legal literature and case law (for the state of the opinion, see LSG Saxony-Anhalt judgment of May 11, 2011 – L 5 AS 92/07, para. 45).
1.3 – North Rhine-Westphalia State Social Court, decision of 22 August 2011, – L 19 AS 796/11 B –
The entitlement to reimbursement of expenses for a rental deposit pursuant to Section 22 Paragraph 6 Sentence 1 of the German Social Code, Book II (SGB II) requires that the basic income support provider has issued an assurance of coverage of these costs before the rental deposit claim arises (see Federal Social Court judgments of May 6, 2010 – B 14 AS 7/09 R, paragraphs 12f and of November 7, 2006 – B 7b AS 10/06 R, paragraph 7).
Prior assurance of the rental deposit is not required if the timely possible decision has been delayed by the administrative body in bad faith (cf. Federal Social Court judgment of 06.05.2010 – B 14 AS 7/09 R, para. 13).
The benefit recipient must request such an assurance before signing the lease.
The rental deposit would have to be covered if the person in need of assistance was prevented from submitting the application due to a legal error caused by an employee of the job center (cf. Berlit in LPK-SGB II, 3rd ed., § 22 para. 106).
A claim for reimbursement of expenses for a rental deposit as a loan cannot be derived from Section 24 Paragraph 1 of the German Social Code, Book II (SGB II). If, in an individual case, an unavoidable need for subsistence, covered by standard benefits and deemed essential under the circumstances, cannot be met either by assets as defined in Section 12 Paragraph 2 Number 4 of the SGB II or in any other way, the employment agency, upon presentation of appropriate documentation, provides the necessary support in kind or as a cash benefit and grants the applicant a corresponding loan. These conditions are not met here.
Because the claimed need – expenses for a rental deposit – is not covered by the standard benefit; it is a cost of accommodation within the meaning of Section 22 of the German Social Code, Book II (see Federal Social Court judgment of June 1, 2010 – B 4 AS 63/09 R – regarding the requirements for a loan under Section 23 Paragraph 1 of the German Social Code, Book II, old version).
1.4 – North Rhine-Westphalia State Social Court, decision of 15 August 2011, – L 19 AS 936/11 NZB –
It is not yet clear in case law whether the expenses for acquiring a cooperative share constitute housing procurement costs within the meaning of Section 22 Paragraph 3 Sentence 1 of the German Social Code, Book II (SGB II) as amended up to December 31, 2010 (old version) or a rental deposit within the meaning of Section 22 Paragraph 3 Sentence 1 of the German Social Code, Book II (old version) (cf. Higher Social Court of North Rhine-Westphalia decision of June 8, 2011 – L 19 AS 958/11 B ER with summary of the state of opinion in case law and literature).
It is also unclear whether, in the case of a move pursuant to Section 22 Paragraph 3 Sentence 2 of the German Social Code, Book II (SGB II) – as recognized in the present case by the ARGE J – housing procurement costs other than a rental deposit are generally only to be granted as a loan within the framework of the adequacy assessment (cf. Federal Social Court judgment of May 6, 2010 – B 14 AS 7/09 R, Rn 14, according to which, in the case of a move within the meaning of Section 22 Paragraph 3 Sentence 2 of the German Social Code, Book II (SGB II), the reasonable costs are to be covered).
These legal questions are not capable of being clarified in the present case. A (specific) legal question is only capable of being clarified if it is decisive in an appeal proceeding conducted after the appeal has been admitted. This is the case if the answer to the legal question raised is essential for the decision in the present legal dispute and if the decision, based on the plaintiff's legal opinion, would have had to be in her favor. This is lacking, among other things, if the decision of the court of first instance is based on various grounds, not all of which are affected by the legal question raised (cf. Federal Social Court decisions of February 23, 2011 – B 4 AS 170/10 B – and of August 30, 2004 – B 2 U 401/03 B, concerning the identical Section 160 Paragraph 2 of the Social Court Procedure Act).
This is the case here, since the Social Court considered the rejection of the plaintiff's objection due to the defendant's failure to meet the objection deadline to be lawful and was therefore prevented from conducting a substantive legal review of the contested decision of 16 January 2009 as amended by the objection decision of 15 May 2009.
sozialgerichtsbarkeit.de
Note: See also the post on the blog of attorney L. Zimmermann.
North Rhine-Westphalia State Social Court, decision of June 8, 2011, – L 19 AS 958/11 B ER –
sozialrechtsexperte.blogspot.com
1.5 – North Rhine-Westphalia State Social Court, decision of 15 August 2011, – L 19 AS 938/11 NZB –
The basic income support provider is not required to pay for replacement equipment in accordance with Section 23 Paragraph 3 Sentence 1 No. 1 SGB II (old version).
A replacement purchase of an item of household furnishing exists, among other things, when an item has to be replaced by another item due to unusability (BSG judgment of 01.07.2009 – B 4 AS 77/08 R, Rn 16).
The case law of the Federal Social Court (BSG) has sufficiently clarified the conditions under which the basic income support provider must provide assistance for the purchase of an item of household furnishing – in this case a living room cabinet – as initial furnishing within the meaning of Section 23 Paragraph 3 Sentence 1 No. 1 of the Second Book of the Social Code (SGB II) in the version up to 31 December 2010 (old version) (BSG judgment of 24 February 2011 – B 14 AS 75/10 R – with further case law references).
Note: See also the post on the blog of attorney L. Zimmermann
Court (BSG), Judgment of April 13, 2011, – B 14 AS 53/10 R –
sozialrechtsexperte.blogspot.com
1.6 – Rhineland-Palatinate State Social Court, Judgment of 31 May 2011, – L 3 AS 147/09 –
1. An enrichment claim pursuant to Section 812 Paragraph 1 of the German Civil Code (BGB) is to be regarded as assets within the meaning of Section 12 Paragraph 1 of the German Social Code, Book II (SGB II).
2. Assets are not considered to be for the "prompt" acquisition of a house plot of appropriate size if the transfer of ownership is not to take place until five years after the application.
3. When considering whether the realization of assets constitutes a particular hardship within the meaning of Section 12 Paragraph 3 No. 6 of the German Social Code, Book II (SGB II), it is irrelevant whether the realization would represent a particular moral hardship.
Note: See also the post on the blog of attorney L. Zimmermann
Social Court Lüneburg, Judgment of June 16, 2011, – S 22 SO 73/09 –
sozialrechtsexperte.blogspot.com
1.7 – State Social Court of Saxony-Anhalt, decision of 23 June 2011, – L 5 AS 129/11 B ER –
A minor child in need of assistance cannot deduct supplementary health insurance and (extended) accident insurance within the framework of a private protection policy from their child benefit in accordance with Section 11b Paragraph 1 No. 3 SGB II.
According to § 6 para. 1 no. 2 Alg II-V, an amount of EUR 30.00 per month is to be deducted from the income of minors for contributions to private insurance pursuant to § 11b para. 1 no. 3 SGB II, if the minor has taken out such insurance and it is appropriate in terms of purpose and amount.
Supplementary health insurance is inappropriate in both principle and amount, because as a rule, the standard of care guaranteed by statutory health insurance is sufficient for those entitled to benefits. Care exceeding this standard is generally not necessary and therefore inappropriate.
Insurance premiums are fundamentally reasonable if they cover a risk that is either customary or justified by special circumstances. The relevant factor is the current life situation, in this case, the receipt of state welfare benefits, and not the lifestyle one would have lived without state support.
It can remain open whether private accident insurance to provide protection against leisure accidents is appropriate under the relevant simple economic circumstances (cf. BSG, judgment of November 7, 2006, file no.: B 7b AS 18/96 R, para. 26).
Children are protected against the risk of disability and death due to accidents while attending daycare facilities or schools by the statutory accident insurance according to the Seventh Book of the Social Code (§ 2 para. 1 no. 8 letter a and b SGB VII).
In any case, the private protection policy is not a pure accident insurance policy, but covers further risks that undoubtedly qualify as luxury insurance. This applies in particular to the hospital daily allowance insurance of €20.00 per day (even though minors are exempt from co-payments for inpatient hospital treatment according to Section 39 Paragraph 4 Sentence 1 of the German Social Code, Book IV), the international health insurance with repatriation costs, the insurance for the costs of cosmetic surgery up to €10,000.00, and for spa treatments up to €3,000.00. No individually justified special risks of the applicant (number 3) are apparent for these coverages.
The private insurance policy taken out is, on the whole, an inappropriate insurance policy that does not trigger the deduction of the insurance allowance pursuant to Section 6 of the German Social Code, Book II (SGB II) (see also: Hamburg Higher Social Court, judgment of November 11, 2010, file no.: L 5 AS 58/07, paragraphs 24 et seq.).
The Federal Social Court's (BSG) ruling of May 13, 2009 (Case No.: B 4 AS 39/08 R, juris) does not lead to a different conclusion regarding the deductibility of the insurance allowance for S. While it states that the insurance allowance must be deducted from the income of minors if they would be excluded from the benefit unit solely due to excess income, this decision was based on the legal situation prior to the entry into force of the new regulations in Section 6 Paragraph 1 Nos. 1 and 2 of the Second Book of the Social Code (SGB II) on August 1, 2009.
Apparently in response to the BSG's jurisprudence, the legislator decided to include a general deduction of the insurance allowance from the income of minors in the SGB II. According to the now applicable regulation, it is irrelevant whether the children of a family are "formally" members of the benefit unit or not. The new regulation, according to its clear wording, no longer considers this.
The decisive factor is the actual conclusion of a corresponding insurance policy by the minor and its appropriateness in terms of both scope and amount. The aforementioned ruling of the Federal Social Court (BSG) is only applicable to cases that are to be assessed according to the old regulations in the Second Book of the Social Code (SGB II) (see also Chemnitz Social Court, judgment of November 11, 2010, file no.: S 35 AS 1612/10, juris para. 38 et seq.). The differentiation now made regarding the deductibility of expenses between adults and minors is in accordance with the enabling legislation and is consistent with Article 3 Paragraph 1 of the Basic Law.
Insofar as children can participate in the private insurance coverage of their parents, the denial of the insurance allowance for minors is not objectionable, as the Federal Social Court (BSG) already stated in its judgment of June 18, 2008 (Case No.: B 14 AS 55/07 R, para. 40; see also judgment of November 7, 2006, Case No.: B 7b AS 18/06 R, para. 27).
Note: See also the post on the blog of attorney L. Zimmermann
When can an amount of 30 euros per month be deducted from the income of minors living in a household receiving social assistance for contributions to private insurance?
Must the minor have taken out the insurance policy themselves – i.e., independently? – Private accident insurance – package policy –
sozialrechtsexperte.blogspot.com
1.8 – Berlin-Brandenburg State Social Court, decision of 06.07.2011, – L 5 AS 673/11 B ER –
For recipients of Hartz IV benefits, employment in a temporary employment agency is reasonable, because according to § 10 para. 1 SGB II, any work is generally reasonable.
In the case of the exception provision of Section 10 Paragraph 1 No. 3 SGB II (endangerment of child rearing), only the objective care situation is decisive, which must be determined ex officio (Federal Social Court, judgment of December 15, 2010, B 14 AS 92/09 R).
The information regarding the legal consequences must be specific, correct, complete and understandable, and must explain in a timely manner, in connection with the job offer, what direct and concrete effects an unjustified refusal of work may have on the entitlement to benefits (Federal Social Court, judgment of December 15, 2010, B 14 AS 92/09 R; judgment of February 18, 2010, B 14 AS 53/08 R).
1.9 – Berlin-Brandenburg State Social Court, decision of 21 July 2011, – L 14 AS 999/11 B ER –
A summons to report constitutes an administrative act within the meaning of Section 31 of the German Social Code, Book X (SGB X), at least when, as in this case, the summons is accompanied by the threat of (repeated) sanctions under Section 32 of the German Social Code, Book II (SGB II) for (a further failure to report) (see also Düe in Niesel/Brandt, SGB III, 5th ed., Section 309, marginal note 6; Winkler in Gagel, SGB III, Section 309, marginal note 20).
The brief mention of one or more reporting purposes in a reporting request is sufficient.
While the sanction for failure to report presupposes the issuance of a sanction notice, requiring a further administrative implementation step, the mere notification of a report cannot be considered the imposition of a sanction. However, the notification serves not only to clarify facts or prepare a decision governing the individual case, but also establishes an independent obligation to be at a specific place, for a specific reason, at a specific time. Thus, in the sense of a preliminary decision, it simultaneously establishes the existence of an element of the offense for a sanction within the meaning of Section 32 of the German Social Code, Book II (SGB II) (in this sense, Behrend in Eicher/Schlegel, SGB III, November 2004 edition, on Section 309, marginal note 54 with further references).
Furthermore, Section 39 No. 3 of the German Social Code, Book II (SGB II) and Section 336a Sentence 1 No. 4 of the German Social Code, Book III (SGB III) support the conclusion that an administrative act exists, the legislative existence of which cannot be explained if it is expressly stipulated that objections and legal actions do not have suspensive effect in the case of requests under Section 59 of the German Social Code, Book II (SGB II) in conjunction with Section 309 of the German Social Code, Book III (SGB III) to report in person to the Employment Agency or another office of the Federal Employment Agency.
Note: See also the post on the blog of attorney L. Zimmermann
Hessian State Social Court Judgment of June 20, 2011, - L 7 AS 255/10 –
sozialrechtsexperte.blogspot.com
2. Decisions of the social courts on basic income support for job seekers (SGB II)
2.1 – Social Court Lübeck, decision of 31.08.2011, – S 47 AS 748/11 ER –
Repayment amounts of business loans are to be considered in full as business expenses, the Social Court of Lübeck ruled in its decision of 31.08.2011.
This also corresponds to the job center's service instructions in connection with company loans (11.30a).
This is not contradicted by the fact that ALG 2, as a subsidiary social benefit, does not serve the purpose of wealth accumulation.
social advicekiel.files.wordpress.com (pdf)
Note: Paragraph 11.30a: Regulation on business loans newly inserted; Section 3 Paragraph 3 Sentences 4 and 5 of the Regulation on Unemployment Benefit II (Alg II-V)
(3a) Business loans are not to be considered business income (Section 11 Paragraph 1 Sentence 2). However, investments made with the loan are not to be recognized as business expenses up to the amount of the loan granted (Section 3 Paragraph 3 Sentence 4 of the Regulation on Unemployment Benefit II). The same applies if investments are financed with loans other than business loans (from relatives or private loans) and the loan does not have an explicit purpose. The repayment amounts are to be considered in full as business expenses.
2.2 – Social Court Neuruppin, decision of 22.08.2011, – S 26 AS 1233/11 ER –
The applicants no longer have a legitimate interest in obtaining preliminary legal protection for an assurance pursuant to Section 22 Paragraph 4 Sentence 1 of the German Social Code, Book II (SGB II), as well as an assurance pursuant to Section 22 Paragraph 6 Sentence 1 of the German Social Code, Book II (SGB II), since the prospective apartment is no longer available and a mooting event has therefore occurred.
A commitment can only be made if the new (still available) accommodation is specifically identified.
The assurance pursuant to Section 22 Paragraph 4 of the German Social Code, Book II (SGB II) can only be used to establish an individual case arrangement within the meaning of Section 31 of the German Social Code, Book X (SGB X) if the future accommodation costs are also determined in terms of amount.
The abstract determination of the necessity of a move or the appropriateness of the accommodation within the jurisdiction of the respective basic income support provider is not provided for in either Section 22 Paragraph 4 of the German Social Code, Book II (SGB II) or Section 22 Paragraph 6 of the German Social Code, Book II (SGB II) (cf. regarding the legal situation before April 1, 2011, also Federal Social Court, judgment of April 6, 2011 – B 4 AS 5/10 R-).
sozialgerichtsbarkeit.de
Note: see also the post on the blog of attorney L. Zimmermann.
Berlin-Brandenburg State Social Court, decision of July 4, 2011, – L 5 AS 956/11 B ER –
sozialrechtsexperte.blogspot.com
2.3 – Koblenz Social Court, decision of June 7, 2011, – S 6 AS 725/11 ER –
The costs of visitation rights must be covered by the provider of basic income support under the German Social Code, Book II (SGB II), to a reasonable extent, even for trips to the USA.
Taking into account social norms, reimbursement of flight costs for exercising visitation rights with a 6-year-old child living in the USA is only conceivable once a year at most
The only possible legal basis for the travel expenses claimed by the applicant on June 1, 2011, in connection with his right of access to his son living in the USA, is Section 21 Paragraph 6 of the German Social Code, Book II (SGB II), in the version applicable from June 3, 2010.
Even though the costs of visitation rights are not included in the standard benefits granted to the applicant (see BSG in BSGE 97, 242), the costs claimed by the applicant in this case for exercising his visitation rights with his son living in the USA are unreasonably high. Due to the distance to the son's current residence and the associated airfare costs, a review of the justification based on the standard of social acceptability is warranted, despite the decision of the Rhineland-Palatinate Higher Social Court of November 24, 2010 – L 1 SO 133/10B ER.
Especially in cases where exercising visitation rights is made difficult by a great distance, this social norm must be considered. In this respect, it must be examined how often a working parent with visitation rights would exercise their right of visitation if they lived far away and were employed full-time (cf. decision of the Thuringian State Social Court of November 12, 2007 – L 8 SO 90/07 ER).
Note: See also the post on the blog of attorney L. Zimmermann
Rhineland-Palatinate Higher Social Court, decision of November 24, 2010 – L 1 SO 133/10B ER –
sozialrechtsexperte.blogspot.com
2.4 – Social Court Lüneburg, decision of 16 May 2011, – S 45 AS 183/11 ER –
The necessary grounds for the order arise from the consideration that recipients of benefits under the German Social Code, Book II (SGB II), can no longer be denied the subsistence-securing benefits to which they are entitled, i.e., until the conclusion of the main proceedings. This also applies with regard to housing costs.
The purpose of Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II) is to ensure the essential needs for accommodation and heating. The applicant cannot be expected to wait for the main proceedings, make insufficient rent payments in the meantime, and thus risk termination of the tenancy and eviction. Since this concerns the guarantee of the constitutionally guaranteed minimum subsistence level, its violation cannot be remedied by subsequently granting benefits in the event of success in the main proceedings. The Chamber therefore does not follow the view occasionally expressed in case law that, with regard to benefits for accommodation and heating, grounds for an injunction can only be affirmed if the person seeking assistance credibly demonstrates that, without the issuance of a preliminary injunction, a termination of tenancy or eviction action is to be expected immediately (as also held here by LSG Nds.-Bremen, decision of 23.02.1011 – L 9 AS 1287/10 B ER -).
2.5 – Social Court Lüneburg, decision of 26 July 2011, – S 45 AS 282/11 ER –
SGB II - Right of access increases housing needs – In Lower Saxony, the appropriate living space for a single parent with a child and a person temporarily living in the household, who spends the majority of their time in a boarding school, is 80 m²
However, following a recent trend in case law, it can be assumed that applicants do not have to be referred to the appropriateness values of a two-person household.
Because the applicant's apartment is also occupied temporarily by the applicant's second and third parties, roughly every other weekend and during school holidays, amounting to approximately one-third of the days throughout the year, it must be assumed that a so-called temporary household exists within the meaning of Section 7 Paragraph 3 Numbers 1 and 4 of the German Social Code, Book II (SGB II) (cf. a comparable situation, Social Court Dortmund, Decision of December 28, 2010 – S 22 AS 5857/10 ER – referring to Federal Social Court, Judgment of November 7, 2006 – B 7b AS 14/06 R).
The fact that the third applicant only stays in the first applicant's apartment temporarily does not preclude the assumption of a temporary household community. According to the relevant case law, a permanent situation is sufficient, in that children regularly stay with a parent for more than one day, i.e., not just sporadic visits (Federal Social Court, Judgment of July 2, 2009 – B 14 AS 75/08 R –).
If these conditions are met – as in this case – it makes no difference whether several children regularly stay with the parent for more than a day or whether – as in this case – there is only one child. 19a) The fact that the third applicant spends the majority of his time at a boarding school in Tauberbischofsheim does not preclude the assumption of a temporary household unit. While this legal concept was developed by the Federal Social Court with regard to the exercise of visitation rights by separated parents, this situation does not differ significantly in quality from the present case, in which the third applicant spends the majority of the year at a boarding school and the remaining time in his mother's household. The only relevant factor is that a child does not reside permanently with the parent receiving benefits under the German Social Code, Book II (SGB II), and does not receive any other benefits to secure his livelihood.
Where the child is during the remaining time – whether with the other parent, at school, or in another institution – is irrelevant to the question of whether a temporary household exists. A different interpretation of Section 7 Paragraph 3 Number 4 of the German Social Code, Book II (SGB II) would be incompatible with the state's special obligation to provide support under Article 6 Paragraph 1 of the Basic Law (see Federal Social Court, Judgment of July 2, 2009 – B 14 AS 75/08 R).
The legislature has now recognized this and reacted to the recent case law regarding the increased need for accommodation in the case of temporary households receiving benefits. To this end, Section 22b Paragraph 3 Sentence 2 Number 2 of the German Social Code, Book II (SGB II) now stipulates that a statute pursuant to Section 22a SGB II must take into account the increased space requirements due to the exercise of visitation rights by means of a special regulation.
The question to be decided is how to calculate the appropriate size of accommodation for a temporary household consisting of two people permanently residing in the household and one person temporarily residing there. One approach is to determine the appropriate size based on how frequently the child stays in the household and to increase the allowance proportionally to the ratio of the child's monthly attendance days to the total number of days in the month. However, Article 6, Paragraph 1 of the German Basic Law (GG) requires that, in cases where the familial relationship between a parent and their children is maintained through the children's regular stays with that parent, adequate living space must be available to allow for this.
Therefore, determining this minimum standard of living space cannot depend on the number of days per month a child spends with the non-custodial parent.
In contrast, the court – at least in the present context of expedited proceedings – aligns itself with those parts of the new case law which, in the case of a temporary household, base the calculation for each child temporarily belonging to the household on half the living space that would be allocated to another full member of the household (see SG Fulda, Judgment of 27.01.2010 - S 10 AS 53/09 -; SG Kassel, Decision of 23.06.2010 – S 6 AS 144/10 ER -, confirmed by Hessian LSG, Decision of 01.11.2010 – L 6 AS 441/10 B ER -).
This approach addresses the legitimate objection that the full additional living space allowance cannot be granted for each child in every case of a temporary household, as this could lead to unfair results compared to other recipients of assistance with children. It also takes into account that when the children reside equally with each parent, the limit must be reached before both parents can be granted the living space allowance for the entire temporary household in order to avoid disadvantaging the members of the respective shared household due to the separation. Furthermore, this approach is advantageous because, unlike a case-by-case, day-by-day approach, it remains practical for the administration and is most readily amenable to an abstract, general regulation in a statute pursuant to Section 22a of the German Social Code, Book II (SGB II).
According to section 11.4 of the WFB 2003, the appropriate living space increases by an additional 10 m² for single parents and for each severely disabled person. In households larger than two people, this corresponds to taking an additional household member into account, so that, for the purpose of determining the appropriate living space and the appropriate rent, a three-and-a-half-person household should be used as a basis, meaning that 80 m² should be considered appropriate.
One justification for a larger living space for single parents is that, unlike in the case of adult partners, in addition to rooms for sleeping and shared living areas, an additional children's room is also required. Until a change in the highest court's jurisprudence, the adjudicating chamber continues to rely on housing subsidy regulations, so that 80 m² is considered appropriate for the applicants' household.
Only this understanding is compatible with the aforementioned new regulation in Section 22b Paragraph 3 of the German Social Code, Book II (SGB II). According to the explanatory memorandum to the law, the additional needs regulated therein, which a statute pursuant to Section 22a SGB II will have to take into account in the future, specifically include the needs due to single parenthood, which deviate from the typical needs for "general social reasons" (Bundestag printed matter 17/3404, p. 102).
Note: See also the post on the blog of attorney L. Zimmermann
Single parents receiving Hartz IV benefits may have an increased need for housing according to § 22b para. 3 SGB II.
sozialrechtsexperte.blogspot.com
3. Decisions of the State Social Courts on Social Assistance (SGB XII)
3.1 – Bavarian State Social Court Judgment of 19 July 2011, – L 8 SO 26/11 –
Assumption of private health insurance contributions by social welfare providers
The Munich Higher Social Court (LSG München) has ruled that the social welfare provider must also cover expenses for private health insurance if the social welfare recipient has chosen a tariff other than the basic tariff.
Expenses pursuant to Section 32 Paragraph 5 Sentence 1 of the German Social Code, Book V (SGB V) would only be covered to the extent that they are reasonable. Therefore, there is only an entitlement to reimbursement of contributions that ensure health insurance benefits equivalent to the basic tariff. In most cases, reimbursement of half the basic tariff is sufficient if the contribution amount is reduced by half for the duration of the need for assistance under the conditions of Section 12 Paragraph 1c of the German Insurance Supervision Act (VAG). This is the case for the plaintiff. The plaintiff, who was already privately insured before January 1, 2009, had no legal option to terminate her insurance contract. A change to the basic tariff cannot be demanded under the provisions of the German Social Code, Book XII (SGB XII), despite the legal possibility.
The Bavarian Social Court has further clarified the obligations of social welfare providers regarding special needs benefits under Section 34 Paragraph 5 of the German Social Code, Book XII (SGB XII). It is now established that while privately insured social welfare recipients cannot be forced to switch to the basic tariff, the social welfare provider is only obligated to cover the corresponding premiums for that basic tariff.
Note: The German Social Code, Book XII (SGB XII), regarding basic income support for the elderly and those with reduced earning capacity, is based on individual entitlements and not merely on calculation elements of a total benefit, which the parties involved can only effectively bind themselves to by way of a partial settlement or partial acknowledgment.
Thus, Section 42 of the German Social Code, Book XII (SGB XII) distinguishes between the standard allowance (now the standard needs level of the eligible person), benefits for accommodation and heating, and special needs according to Sections 30 to 34 of the SGB XII, which are listed exhaustively. In this respect, the Federal Social Court (BSG) abandoned its earlier legal opinion in its judgment of October 16, 2007 – B 8/9b SO 2/06 R (BSG, judgment of August 26, 2008, B 8/9b SO 10/06 R, continued in the judgment of May 19, 2009, B 8 SO 8/08 R).
Contrary to the Federal Social Court's (BSG) view on the separability of a subsidy under Section 26 of the German Social Code, Book II (SGB II) (not separable according to the judgment of January 18, 2011, file number: B 4 AS 108/10 R), the Senate considers the examination of an individual claim within the framework of the entire regulation of periodically granted basic income support to be justified here. This is because the need for assistance exists independently of the payment of the health insurance contribution (cf. in this respect, paragraph 13 of the above-mentioned paragraph on the "accessory nature" of the claim under Section 12 Paragraph 1c Sentence 5 of the German Insurance Supervision Act (VAG)).
Note: See also the 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
3.2 – Lower Saxony-Bremen State Social Court, Judgment of 27 January 2011, – L 8 SO 171/08 –
Pursuant to Sections 53, 54 Paragraph 1 Sentence 1 No. 2 SGB XII in conjunction with Section 13 Paragraph 1 No. 5 EinglHVO, the plaintiff is entitled to integration assistance by covering the full cost of reading assistance required for studies, without the disputed partial offsetting of the state blind person's allowance and blind person's assistance.
According to the wording of Section 82 Paragraph 1 Sentence 1 of the German Social Code, Book XII (SGB XII), blind assistance does not constitute income within the meaning of the SGB XII.
Although the state blind person's allowance constitutes income within the meaning of Section 82 Paragraph 1 Sentence 1 of the German Social Code, Book XII (SGB XII), the (partial) use of this income to cover the costs of reading assistance may not be required according to Section 83 Paragraph 1 of the SGB XII.
According to this regulation, benefits provided under public law for an expressly stated purpose are only to be considered as income to the extent that social assistance serves the same purpose in the individual case.
The state blind person's allowance is therefore only to be considered as income as a so-called earmarked benefit insofar as social assistance in the individual case – here integration assistance in the form of covering the costs of reading assistance – serves the same purpose.
The purpose of an individual social assistance benefit must be determined based on the specific need to be covered. Purpose identity then exists to the extent that both benefits serve to cover the same need (Brühl in LPK-SGB XII, 8th ed. 2008, § 83 para. 5 with further references). The purpose of the integration assistance covering the corresponding need here, in the form of covering the costs of a reading aid required for his studies, is already evident from § 53 para. 3 SGB XII.
According to this definition, one of the specific tasks of integration assistance is to eliminate or mitigate a disability or its consequences and to integrate disabled people into society. This includes, in particular, enabling or facilitating disabled people's participation in community life, enabling them to pursue a suitable occupation or other suitable activity, or making them as independent of care as possible. The purpose of enabling disabled people to pursue a suitable occupation or other suitable activity is reflected in Section 54 Paragraph 1 Number 2 of the German Social Code, Book XII (SGB XII), according to which integration assistance specifically includes the support for school-based vocational training for a suitable occupation, including university studies, as provided here.
According to Section 13 Paragraph 1 Number 5 of the Integration Assistance Ordinance (EinglHVO), this assistance primarily includes support for education at a university or academy. The specific purpose of integration assistance, in the form of the so-called university assistance provided here, is to eliminate all disability-related obstacles and difficulties that prevent university attendance.
Therefore, the integration assistance granted in the form of covering the costs of the reading assistance required for his university studies does not serve (even partially) the same purpose as the state blind person's allowance, which is intended to compensate for the additional expenses caused by blindness and has strong features of social welfare law (cf. also denying an identity of purpose between integration assistance and state blind person's allowance: Higher Administrative Court of Lüneburg, judgment of March 13, 1968 – IV OVG A 150/67 – FEVS, 16, 426; Federal Administrative Court, judgment of November 5, 1969 – VC 43.69 –, juris para. 14; Higher Administrative Court of Baden-Württemberg, judgment of April 20, 1988 – 6 S 2217/86 –, FEVS 38, 247).
The social welfare agency's consideration of this as income when granting integration assistance therefore violates Section 83 Paragraph 1 of the German Social Code, Book XII (SGB XII). The contested partial "crediting" of the state blind person's allowance against the integration assistance benefit is also unfair because the state blind person's allowance (as a priority benefit of the same type pursuant to Section 72 Paragraph 1 Sentence 1 SGB XII) has replaced the blind person's assistance in the amount granted (EUR 220.00), and the latter is not to be considered income pursuant to Section 82 Paragraph 1 Sentence 1 SGB XII (see also Higher Administrative Court of Lüneburg, loc. cit., 428).
Note: See also the post on the blog of attorney L. Zimmermann
Social Court Landshut, Judgment of February 2, 2011, – S 10 SO 36/09 –
sozialrechtsexperte.blogspot.com
4. Decisions of the social courts on social assistance (SGB XII)
4.1 – Social Court Lüneburg Judgment of 12 May 2011, – S 22 SO 19/09 –
Under Section 74 of the German Social Code, Book XII (SGB XII), the costs of a funeral abroad – burial in Turkey – due to Islamic beliefs – are not considered necessary expenses. The fact that relatives bear the flight costs does not imply that the SGB II benefit provider is capable of providing for the costs.
The legal concept of necessity is an indeterminate legal concept that is fully reviewable by the courts (see the Chamber's judgment of January 18, 2010 – S 22 SO 87/09 –; Grube/Wahrendorf, 2nd edition 2008, § 74, para. 30). Necessity relates to both the type of costs and their amount (see Schellhorn/Schellhorn/Hohm, Commentary on the German Social Code, Book XII, 18th edition 2010, § 74, para. 14). What is customary and reasonable in the locality is primarily determined by the relevant municipal cemetery regulations and must be assessed according to objective criteria (see the judgment of the Administrative Court of Baden-Württemberg of December 19, 1990 – 6 S 1639/90 –).
The costs to be covered are those that are usually incurred for a dignified, simple burial in accordance with local customs, but are not limited to the expenses of a simple burial arranged by the regulatory authority by way of substitute performance (cf. LPK/SGB XII/Berlit, 8th edition 2007, § 74, marginal note 12; judgment of the Higher Administrative Court of North Rhine-Westphalia of March 4, 1996 – 19 A 194/96 –; decision of the Hessian State Social Court of March 20, 2008 – L 9 SO 20/08 B ER –). The appearance of a pauper's grave must be avoided, and a dignified burial, even in a simple manner customary for the locality, must be ensured (see judgment of the Hessian Higher Administrative Court of February 10, 2004 – 10 UE 2497/03 –; judgment of the Hanover Administrative Court of June 6, 2000 – 3 A 5028/99 –). Cremation or anonymous burial are not permissible and are not covered by the legal concept of necessity (see judgment of the Hanover Administrative Court of September 16, 1997 – 3 A 2204/96 –). On the other hand, not all traditions and customs are appropriate under social welfare law, and there is no entitlement to reimbursement of the costs for a funeral befitting one's social standing (§ 1968 BGB) (LPK/SGB XII/Berlit aaO.; decision of the Hessian Higher Administrative Court of 13 January 2006 – 10 ZU 1391/05 -).
The costs of a burial abroad are not considered necessary expenses. This applies in particular to the costs of repatriation, transport, and burial according to local customs. In the present case, burial in an Islamic cemetery in Germany, specifically in Hamburg, would have been possible and reasonable for the deceased, so that the necessity of burial in Turkey under social welfare law must be denied (see also the judgment of the Higher Administrative Court of Hamburg of February 21, 1992 – Bf IV 44/90 –, FEVS 43, 66). The fact that his personal wish was to be buried in Turkey does not establish an obligation to provide benefits under social welfare law, as this would have involved disproportionate additional costs. Therefore, burial abroad was not necessary under social welfare law (see Schellhorn, in: Schellhorn/Schellhorn/Hohm, § 74, para. 17). A burial within Germany would not have been unusual, as the significant number of Islamic cemeteries in major cities clearly demonstrates. Islamic belief does not necessarily require burial in one's own country. Therefore, denying the necessary services cannot violate the freedom of religion guaranteed by Article 4, Paragraph 2 of the Basic Law (GG). This freedom encompasses all conceivable religious acts as well as the observance and practice of religious customs (cf. Maunz/Dürig, Commentary on the Basic Law, loose-leaf edition, Article 4, para. 101).
Furthermore, the fundamental right to freedom of religion is designed as a defensive right and does not open up any further avenues of participation that would be to the detriment of a third party (cf. von Münch/Kunig/Mager, Commentary on the Basic Law, 5th edition 2000, Article 4, para. 61; Dreier/Morlok, Commentary on the Basic Law, 2nd edition 2004, Article 4, para. 103). Therefore, neither the freedom of religion of the deceased nor of the plaintiff is violated by the failure to cover the costs of the transfer.
Under Section 74 of the German Social Code, Book XII (SGB XII), only the actual costs incurred are eligible for consideration, and not fictitious costs of a comparable burial in Germany (see judgment of the Higher Administrative Court of Hamburg of February 21, 1992, loc. cit.).
In the present case, therefore, neither the transport costs Hamburg-Istanbul (700 euros) nor the expenses for the transport coffin (600 euros) had to be covered.
The funeral director's flat fee included, in full and as necessary, expenses for coffin accessories (€61.36), dressing and placing the deceased in the coffin (€76.69), transport up to 80 km (€91.15), pallbearers (€61.36), viewing for the funeral service (€71.58), administrative costs (€38.35), and the transport coffin (€29.65). Consultation and handling of formalities, as well as coffin decorations, were not necessary, as the funeral was a simple, customary local affair. Furthermore, the necessary formalities could reasonably be handled by the plaintiff herself, especially since the unemployed plaintiff had the time to do so.
Regarding the lump sum of €366, the costs of procuring linen shrouds, using the washing room, and engaging an imam for the funeral prayer were fully reimbursable, as these are necessary for an Islamic burial and required by the dignity of the deceased. According to Article 3, Paragraph 3 of the Basic Law, a Muslim burial is equivalent to a Christian burial, in which ritual washing and the funeral prayer are core elements (see the judgment of the Berlin Administrative Court of November 3, 1992 – 8 A 286/89 –).
Due to her need for assistance under the German Social Code, Book II (SGB II), it is unreasonable to expect the plaintiff, as a surviving dependent, to bear the necessary costs, thus giving rise to a legally enforceable claim against the defendant. The court cannot accept the defendant's argument that the plaintiff's ability to pay can be inferred from the fact that relatives bear the flight costs.
4.2 – Social Court Lüneburg Judgment of 16.06.2011, – S 22 SO 73/09 –
A sum of money received from an inheritance during the receipt of benefits under SGB-12 is considered an asset if the inheritance occurred before the application for basic income support benefits.
According to the Federal Social Court's (BSG) ruling of February 24, 2011 (B 14 AS 45/09), an inheritance payment constitutes assets. In cases of universal succession, the inheritance passes directly to the heirs by operation of law pursuant to Section 1922 of the German Civil Code (BGB), irrespective of the fact that, due to the right of disclaimer, an inheritance is only acquired upon acceptance. The BSG assumes that the mere possibility of disposing of the inheritance constitutes an inflow of funds. Therefore, the receipt of the sum of money more than four years after the death of the testator represents a liquidation of existing assets and continues to be classified as assets. Income exists only if the recipient has acquired a claim against the estate (cf. BSG ruling of October 28, 2009 – B 14 AS 62/08 R).
This ruling by the Federal Social Court (BSG) must be followed, as it represents a departure from previous higher court rulings (see judgment of the Higher Social Court (LSG) of North Rhine-Westphalia of April 6, 2011 – L 12 (20) AS 34/09 –; judgment of the Higher Social Court of Saxony of February 21, 2011 – L 7 AS 724/09 –; judgment of the Higher Social Court of Berlin-Brandenburg of November 16, 2010 – L 18 AS 1826/08 –; decision of the Higher Social Court of Lower Saxony-Bremen of February 13, 2008 – L 13 AS 237/07 ER –; decision of the Higher Social Court of North Rhine-Westphalia of March 23, 2006 – L 20 B 72/06 AS –; decision of the Higher Social Court of Baden-Württemberg of February 21, 2007 – L 7 AS 690/07 ER-B –).
The social assistance recipient had already acquired a contingent right to her share of the inheritance upon the occurrence of the subsequent inheritance. This contingent right, like the compulsory share claim, for which the Federal Social Court (BSG) already recognized the status of an asset in its judgment of May 6, 2010 – B 14 AS 2/09 – constitutes assets of the benefit recipient pursuant to Section 90 of the German Social Code, Book XII (SGB XII), provided it was acquired before the commencement of benefits (see also LPK/SGB II/Brühl, 3rd edition 2009, Section 12, marginal note 10).
Note: See also the post on the blog of attorney L. Zimmermann
According to Section 82 Paragraph 1 Sentence 1 of the German Social Code, Book XII (SGB XII), income includes all receipts in cash or in kind, with the exception of benefits under this book, the temporary supplement under Section 24 of the German Social Code, Book II (SGB II), the basic pension under the Federal War Victims' Relief Act (BVG) and under laws that provide for a corresponding application of the BVG, and pensions or allowances under the Federal Compensation Act for damage to life, body, or health, up to the amount of a comparable basic pension under the BVG. The realization of assets is governed by Section 90 of the German Social Code, Book XII (SGB XII).
(socialrechtsexperte.blogspot.com
Author of the legal case ticker: Willi 2 from Tacheles
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
