1. Decisions of the state social courts on basic security for job seekers (SGB II)
1.1 – State Social Court of North Rhine-Westphalia decision of August 25, 2011, – L 19 AS 2192/10 B –
What is decisive for the interpretation of a decision is not its title, but rather its regulatory content.
A change decision that reduces an approved benefit under SGB II for July 2008 is, according to its regulatory content, a decision to cancel the period July 2008 (cf. 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, 45ff SGB X.
The requirements of Section 48 Paragraph 1 Sentence 2 No. 3 SGB .2008 – B 14 AS 43/07 R).
1.2 - State Social Court of North Rhine-Westphalia decision of August 8, 2011, - L 19 AS 760/11 B -
Granting of legal aid, because when there is a change in local responsibility for basic security benefits, it is controversial in the literature and case law (for the state of opinion, see LSG Saxony-Anhalt judgment of May 11, 2011 - L 5 AS 92/07, Rn. 45), whether § 36 SGB II, applicable here in the version valid until December 31, 2010, also contains a performance requirement in addition to the formal regulation of local jurisdiction or regulates a supplementary eligibility requirement compared to the basic provision of § 7 Paragraph 1 SGB II.
1.3 – State Social Court of North Rhine-Westphalia decision of August 22, 2011, – L 19 AS 796/11 B –
The right to cover the costs of a rental deposit in accordance with Section 22 Paragraph 6 Sentence 1 SGB II requires that the basic security provider has given an assurance that these costs will be covered before the rental deposit claim arises (cf. BSG judgments of May 6, 2010 - B 14 AS 7/09 R, Rn 12f and from November 7th, 2006 - B 7b AS 10/06 R, Rn 7).
A prior assurance of the rental deposit is not necessary if the possible timely decision has been delayed by the administrative body in breach of trust (see BSG judgment of May 6, 2010 - B 14 AS 7/09 R, Rn 13).
The benefit recipient must apply for such an assurance to be issued before signing the rental agreement.
The rental deposit would have to be paid if the person in need of help was prevented from submitting the application due to a legal error caused by an employee of the job center (see Berlit in LPK-SGB II, 3rd edition, § 22 Rn 106).
A claim to cover the expenses for providing a rental deposit as a loan cannot be derived from Section 24 Paragraph 1 SGB II. If, in an individual case, a need to secure one's livelihood that is included in the standard benefits and is unavoidable under the circumstances cannot be covered either by the assets in accordance with Section 12 Paragraph 2 No. 4 SGB II or in any other way, the employment agency will provide the need with appropriate proof in kind or in cash and grants the person seeking help a corresponding loan. These requirements are not met here.
Because the claimed need - expenses for a rental deposit - is not included in the standard benefit, these are accommodation costs within the meaning of Section 22 SGB II (see BSG judgment of June 1, 2010 - B 4 AS 63/09 R - to the Requirements for a loan according to Section 23 Paragraph 1 SGB II old version).
1.4 – State Social Court of North Rhine-Westphalia decision of August 15, 2011, – L 19 AS 936/11 NZB –
It has not yet been clarified in case law whether the expenses for the acquisition of a cooperative share are housing acquisition costs within the meaning of Section 22 Paragraph 3 Sentence 1 SGB II in the version up to December 31, 2010 (old version) or a rental deposit in accordance with Section 22 Paragraph 3 Sentence 1 SGB II a. F. acts (see LSG NRW decision of June 8, 2011 - L 19 AS 958/11 B ER with a summary of the opinion in case law and literature).
It is also not clear whether, in the case of a move in accordance with Section 22 Paragraph 3 Sentence 2 SGB II - as recognized by ARGE J in the present case - housing acquisition costs other than a rental deposit as part of the appropriateness test (cf. BSG judgment of May 6, 2010 - B 14 AS 7/09 R, Rn 14, according to which the appropriate costs must be borne in the event of a move within the meaning of Section 22 Paragraph 3 Sentence 2 SGB II) are generally only granted as a loan.
However, these legal questions cannot be clarified in this case. A (specific) legal question can only be clarified if it is relevant to the decision in an appeal procedure carried out after approval has been granted. This is the case if the decision in the present legal dispute depends on the answer to the legal question raised and if the decision were based on the plaintiff's legal opinion, the decision should have been in her favour. This is lacking, among other things, when the decision of the first instance court is based on various reasons, not all of which are affected by the legal question raised (cf. BSG decisions of February 23, 2011 - B 4 AS 170/10 B - and of August 30, 2004 - B 2 U 401/03 B to the identical § 160 Paragraph 2 SGG).
This is the case in the present case because the social court considered the rejection of the plaintiff's objection to be lawful due to the defendant's failure to meet the objection deadline and was therefore interested in a substantive and legal review of the contested decision of January 16, 2009 in the form of the objection decision of May 15. was prevented in 2009.
Sozialgerichtsbarkeit.de
Note: See also the article in the blog by RA L. Zimmermann
State Social Court of North Rhine-Westphalia decision of June 8th, 2011, - L 19 AS 958/11 B ER -
Sozialrechtsexperte.blogspot.com
1.5 – State Social Court of North Rhine-Westphalia decision of August 15, 2011, – L 19 AS 938/11 NZB –
The basic security provider does not have to pay for replacement items of equipment in accordance with Section 23 Paragraph 3 Sentence 1 No. 1 SGB II (old version).
A replacement purchase of an item of residential furniture occurs, among other things, if an item has to be replaced by another item because it is unusable (BSG judgment of July 1, 2009 - B 4 AS 77/08 R, Rn 16).
The jurisprudence of the BSG has sufficiently clarified under which conditions the basic security provider will grant aid for the purchase of an item of home furnishings - in this case a living room cupboard - as initial equipment within the meaning of Section 23 Paragraph 3 Sentence 1 No. 1 Second Book of the Social Code (SGB II) as amended must be provided by December 31, 2010 (former version) (BSG judgment of February 24, 2011 - B 14 AS 75/10 R - with further case law information).
Note: See also the article in RA L. Zimmermann's blog
BSG, judgment of April 13, 2011, – B 14 AS 53/10
R-socialrechtsexperte.blogspot.com
1.6 – State Social Court of Rhineland-Palatinate judgment of May 31, 2011, – L 3 AS 147/09 –
1. A claim for enrichment according to Section 812 Paragraph 1 BGB is to be viewed as assets within the meaning of Section 12 Paragraph 1 SGB II.
2. Assets are not used to obtain a house property of appropriate size “soon” if the transfer of ownership is not to take place until five years after the application is submitted.
3. When it comes to the question of whether the realization of the assets represents a particular hardship within the meaning of Section 12 Paragraph 3 No. 6 SGB II, it is not important whether the realization would represent a particular moral hardship.
Note: See also the article in RA L. Zimmermann's blog
Lüneburg Social Court Judgment of June 16, 2011, - S 22 SO 73/09 -
sociorechtsexperte.blogspot.com
1.7 - State Social Court of Saxony-Anhalt decision of June 23, 2011, - L 5 AS 129/11 B ER -
A minor child in need of help cannot deduct from their child benefit in accordance with Section 11b Paragraph 1 No. 3 SGB II - supplementary health insurance and (extended) accident insurance as part of the private protection policy.
According to Section 6 Paragraph 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 in accordance with Section 11b Paragraph 1 No. 3 SGB II if the minor has taken out appropriate insurance and it is appropriate for the reason and amount.
Supplementary health insurance is not appropriate for the reason and the amount because, as a rule, the standard of service guaranteed by the GKV is sufficient for those entitled to benefits with statutory health insurance. Care that exceeds this standard is generally not necessary and is therefore inappropriate.
Essentially, insurance premiums are appropriate if a risk is covered that is either common or justified by special life circumstances. The focus here is on the current living conditions, in this case the use of state welfare services, and not on the lifestyle without state support.
It remains unclear whether private accident insurance is appropriate to protect against leisure accidents given the basic economic living conditions (cf. BSG, judgment of November 7, 2006, Ref.: B 7b AS 18/96 R, RN 26).
While attending daycare centers or schools, children are protected against the risk of disability and death as a result of accidents by statutory accident insurance in accordance with Book Seven of the Social Security Code (Section 2 Paragraph 1 No. 8 Letters a and b SGB VII).
In any case, the private protection policy is not pure accident insurance, but rather covers other risks that can undoubtedly be viewed as luxury insurance. This applies in particular to daily hospital allowance insurance of EUR 20.00 per day (although minors do not have to pay any additional payment for inpatient hospital treatment in accordance with Section 39 Paragraph 4 Sentence 1 SGB IV), foreign health insurance with repatriation costs, and insurance for the costs of cosmetic operations amounting to up to up to EUR 10,000.00 and treatments amounting to up to EUR 3,000.00. There are no identifiable individual risks for applicant 3 in this regard.
The private protection policy taken out is overall inappropriate insurance, which does not trigger the deduction of the insurance flat rate according to § 6 Alg II-V (also: LSG Hamburg, judgment of November 11, 2010, Ref.: L 5 AS 58 /07, RN 24ff.).
The judgment of the BSG of May 13, 2009 (ref.: B 4 AS 39/08 R, juris) does not follow anything else with regard to the deductibility of the insurance flat rate for S..
It is stated that the insurance flat rate must be deducted from the income of minors if they fall out of the community of need solely due to excess income. However, the decision was made on the legal situation before the new regulation in Section 6 Paragraph 1 No. 1 and 2 Alg II-V came into force from August 1, 2009. Apparently in response to the case law of the BSG, the legislator had decided to do so Alg II-V provides for a basic possibility of deducting the insurance flat rate from the income of minors. According to the current regulation, it is irrelevant whether the children of a family are “formally” members of the community of needs or not. According to its clear wording, the new regulation no longer addresses this.
The decisive factor is whether the minor actually takes out appropriate insurance and its appropriateness in terms of reason and amount. The above-mentioned judgment of the BSG is only applicable to cases that are to be judged according to the old regulation in Alg II-V (see also SG Chemnitz, judgment of November 11, 2010, Ref.: S 35 AS 1612/10, juris RN 38 f.). The differentiation now made regarding deductibility between adults and minors is in line with the authorization and is in accordance with Article 3 Paragraph 1 of the Basic Law.
Insofar as children can participate in the insurance coverage of private insurance companies in that of their parents, the denial of the flat rate insurance fee for minors cannot be objected to, as the BSG already did in the judgment of June 18, 2008 (ref.: B 14 AS 55/07 R, RN 40; see also judgment of November 7, 2006, Ref.: B 7b AS 18/06 R, RN 27).
Note: See also the article in RA L. Zimmermann's blog
When can an amount of 30 euros per month be deducted from the income of minors living in a community of need for contributions to private insurance?
Does the minor have to take out the insurance themselves?
-Private accident insurance – package insurance-. socialrightsexperte.blogspot.com
1.8 – Berlin-Brandenburg State Social Court decision of July 6, 2011, – L 5 AS 673/11 B ER –
For Hartz IV recipients, employment in a temporary employment agency is reasonable because, in accordance with Section 10 Paragraph 1 SGB II, any work is generally acceptable.
In the case of the exceptional provision of Section 10 Paragraph 1 No. 3 SGB II (endangerment of child-rearing), only the objective care situation is relevant, which must be determined ex officio (Federal Social Court, judgment of December 15, 2010, B 14 AS 92/09 R ).
The legal consequences must be specific, correct, complete and understandable and must, in a timely manner, accurately explain in connection with the job offer what direct and concrete effects an unfounded refusal to work can 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 July 21, 2011, – L 14 AS 999/11 B ER –
A request to report is an administrative act within the meaning of § 31 SGB also Düe in Niesel/Brandt, SGB III, 5th edition, § 309 RdNr 6; Winkler in Gagel, SGB III § 309 RdNr 20).
The keyword-like naming of one or more reporting purposes in a reporting request is sufficient.
The sanction for failure to report requires the issuance of a sanction notice. In this respect, a further administrative implementation step is required and a sanction cannot be seen in the notification request alone. However, the request to report not only serves to clarify facts or to prepare a decision regulating the individual case, but also establishes an independent obligation to be at a specific place at a specific time, for a specific reason, and thus constitutes a preliminary decision at the same time the existence of an element of the offense of a sanction within the meaning of § 32 SGB II (in this sense Behrend in Eicher/Schlegel, SGB III, November 2004 edition, on § 309 para. 54 with further references).
In addition, § 39 No. 3 SGB II and § 336a Sentence 1 No. 4 SGB III speak in favor of an administrative act, the legislative existence of which cannot be explained if it is expressly stipulated that objections and legal action do not have a suspensive effect in the case of requests according to § 59 SGB II in conjunction with Section 309 SGB III have to report personally to the employment agency or another office of the Federal Agency.
Note: See also the article in RA L. Zimmermann's blog
Hessian State Social Court judgment of June 20, 2011, - L 7 AS 255/10 -
sociallawexperte.blogspot.com
2. Decisions of the social courts on basic security for job seekers (SGB II)
2.1 – Lübeck Social Court, decision of August 31, 2011, S 47 AS 748/11 ER –
The repayment amounts of business loans must be taken into account in full as operating expenses, the SG Lübeck ruled in its decision v. August 31, 2011.
This also corresponds to the job center's 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 to build wealth.
social advicekiel.files.wordpress.com (pdf)
Note: Rz. 11.30a: New regulation on company loans inserted; Section 3 Paragraph 3 Sentence 4 and 5 Alg II-V
(3a) Business loans are not to be counted as business income (Section 11 Paragraph 1 Sentence 2). In contrast, the investments made with the loan are not to be recognized as operating expenses up to the amount of the loan granted (Section 3 Paragraph 3 Sentence 4 Alg II-V). The same applies if investments are financed with loans other than business loans (from relatives or private loans) and the loan has no express purpose. The repayment amounts must be taken into account in full as operating expenses.
2.2 - Neuruppin Social Court decision of August 22, 2011, - S 26 AS 1233/11 ER -
The applicants no longer have any need for legal protection for the granting of an assurance within the meaning of Section 22 Paragraph 4 Sentence 1 SGB II and an assurance pursuant to Section 22 Paragraph 6 Sentence 1 SGB II sought by way of interim legal protection after the in The apartment that was taken into consideration is no longer available in the meantime and a necessary event has therefore occurred.
An assurance can only be given if the new (still available) accommodation is specifically identified.
With the assurance in accordance with Section 22 Paragraph 4 SGB II, an individual case regulation within the meaning of Section 31 SGB X) can only be made if the amount of future accommodation costs has also been determined.
The abstract determination of the necessity of a move or the appropriate value in the area of responsibility of the respective basic security provider is neither provided for in Section 22 Paragraph 4 SGB II nor in Section 22 Paragraph 6 SGB II (see also Federal Social Court, judgment on the legal situation before April 1, 2011 from April 6, 2011 – B 4 AS 5/10 R-).
Sozialgerichtsbaren.de
Note: see also the article in RA L. Zimmermann’s blog
Berlin-Brandenburg State Social Court Decision of July 4th, 2011, – L 5 AS 956/11 B ER –
socialrechtsexperte.blogspot.com
2.3 – Koblenz Social Court Decision of June 7, 2011, – S 6 AS 725/11 ER –
Costs of access rights must also be borne by the provider of basic security in accordance with SGB II to an appropriate extent for trips to the USA.
Taking into account social norms, when exercising access rights to a 6-year-old child who lives in the USA, reimbursement of flight costs can only be considered once a year at most
The sole basis for the claim for the travel costs claimed by the applicant on June 1, 2011 as part of the access rights to his son living in the USA is Section 21 Paragraph 6 SGB II in the version applicable from June 3, 2010.
Even if the costs of the access rights are not included in the standard benefit granted to the applicant (cf. BSG in BSGE 97, 242), the costs claimed by the applicant in the present case with regard to exercising his access rights with the son living in the USA are in one inappropriately high range. Due to the distance to the son's current place of residence and the flight costs incurred in relation to travel routes, despite the decision of the LSG Rhineland-Palatinate of November 24th, 2010 - L 1 SO 133/10B ER, a justification check based on the standard of social custom is indicated.
Particularly in cases in which the exercise of access rights is made difficult by a great distance, this social custom must be asked. In this respect, it must be examined how often a working parent with access rights would exercise their right of access if they were fully engaged in an activity at such a distance (cf. decision of the Thuringian LSG of November 12, 2007 - L 8 SO 90/07 ER).
Note: See also the article in RA L. Zimmermann's blog
LSG Rhineland-Palatinate resolution of November 24th, 2010 - L 1 SO 133/10B
ER-socialrechtsexperte.blogspot.com
2.4 – Lüneburg Social Court decision of May 16, 2011, – S 45 AS 183/11 ER –
The necessary reason for the order arises from the consideration that benefit recipients under SGB II can no longer be withheld the subsistence benefits to which they are entitled, ie until the main proceedings have been concluded. This also applies to the cost of accommodation.
The purpose of Section 22 Paragraph 1 Sentence 1 SGB II is to ensure the existential needs of accommodation and heating. The applicant cannot be expected to wait for the main proceedings first and in the meantime to make rent payments that are too low and thus risk having the tenancy terminated and the apartment evicted. Since it is about guaranteeing the subsistence minimum guaranteed by fundamental rights, its violation cannot be remedied by a subsequent granting of benefits in the event of a victory in the main proceedings. The Chamber therefore does not follow the opinion, which has been occasionally expressed in case law, that with regard to benefits for accommodation and heating, a reason for an order can only be affirmed if the person seeking help credibly demonstrates that a termination or eviction action can be expected immediately without the issuance of an interim order (as here also LSG Nds.-Bremen, decision of February 23, 1011 - L 9 AS 1287/10 B ER -).
2.5 – Lüneburg Social Court decision of July 26, 2011, – S 45 AS 282/11 ER –
SGB II - Access rights increase the need for living space - In Lower Saxony, the appropriate living space for a single parent with a child and a person living temporarily in the household who spends most of the 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 rely on the appropriateness of a two-person household.
In addition to applicant 2, applicant 3 also stays in the applicant's apartment at times, roughly every other weekend and during school holidays, i.e. a total of around a third of the days over the course of the year. It can therefore be assumed that there is a so-called temporary community of needs within the meaning of Section 7 Paragraph 3 No. 1 and No. 4 SGB II (see for a comparable constellation SG Dortmund, decision of December 28, 2010 - S 22 AS 5857/10 ER - with reference to BSG, judgment of November 7, 2006 - B 7b AS 14/06 R -).
The assumption of a temporary community of needs does not stand in the way of the fact that applicant 3 only stays temporarily in the apartment of applicant 1. According to the relevant case law, it is sufficient to have a permanent situation in which children live with a parent for longer than one day with a certain regularity, i.e. not just sporadic visits (BSG, judgment of July 2nd, 2009 - B 14 AS 75/ 08 R -).
If these requirements are met - as here - it can make no difference whether several children regularly live with the parent for more than a day or whether - as here - it is just one child. 19a) The assumption of a temporary community of needs does not stand in the way of the fact that the third applicant spends most of his time in a boarding school in Tauberbischofsheim. This legal figure was developed by the Federal Social Court with a view to exercising the access rights of parents living apart. However, this situation does not differ significantly in quality from the present case, in which the third applicant spends the majority of the year in a boarding school, but spends the rest of the time in his mother's household. The only thing that matters is that a child does not stay permanently with their parent who is receiving benefits under SGB II and does not receive any other benefits to secure their livelihood.
However, where the child is during the rest of the time - whether with the other parent, a school or another institution - is irrelevant to the question of whether there is a temporary community of needs. A different interpretation of Section 7 Paragraph 3 No. 4 SGB II would be incompatible with the state's special obligation to provide support under Article 6 Paragraph 1 of the Basic Law (cf. BSG, judgment of July 2, 2009 - B 14 AS 75 /08 R -).
The legislature has now recognized this and has responded to recent case law on the increased need for accommodation in the case of temporary communities of need. To this end, he has now determined in Section 22b Paragraph 3 Sentence 2 No. 2 SGB II that a statute according to Section 22a SGB II must take into account the increased space requirements due to the exercise of access rights by means of a special regulation.
It must therefore be decided how the appropriate apartment size for a temporary community of needs consisting of two people living permanently in the household and one person living in the household temporarily is to be determined mathematically.
In this respect, on the one hand, it is possible to determine the appropriate apartment size based on how often the child is in the apartment and to increase the requirement according to the ratio of the child's monthly presence days to the monthly days. However, Article 6 Paragraph 1 of the Basic Law requires, in cases in which the family relationships between the parent and his children are maintained through regular stays of the children with this parent, that an appropriate living space is also available within which this is possible. In order to determine such a minimum living space, however, it cannot depend on how many days a month a child stays with the parent who lives separately.
In contrast, the court agrees - at least in the present constellation of an urgent procedure - with the parts of the new case law, which in the case of a temporary community of needs, the half of the living space for each child temporarily assigned to the community of needs is based on that for another full member the community of needs would be applied (cf. SG Fulda, judgment of January 27, 2010 -S 10 AS 53/09 -; SG Kassel, decision of June 23, 2010 - S 6 AS 144/10 ER -, confirmed by Hessisches LSG , decision of November 1, 2010 – L 6 AS 441/10 B ER -).
This approach takes into account the legitimate objection that the full additional living space requirement cannot be assessed for every child in every case where there is a temporary community of needs, as this could lead to unfair results compared to other people in need of help with children. At the same time, it takes into account that if half of the children stay with each parent, the limit must be reached for both parents to be granted the living space requirement for the entire temporary community of needs in order to avoid disadvantages for the members of the respective shared community of needs due to separation. Another argument in favor of this approach is that, contrary to a day-by-day approach based on each individual case, it remains practicable for the administration and is most likely to be amenable to an abstract, general regulation in a statute according to Section 22a SGB II.
However, according to Section 11.4 of the WFB 2003, the appropriate living space increases by a further 10 m² for single parents and for each severely disabled person. In the area above a two-person household, this corresponds to taking another household member into account, so that in order to determine the appropriate living space and the appropriate rent, a three-and-a-half-person household must be taken into account, i.e. 80 m² is considered appropriate.
One reason for a larger living space for single parents is that - unlike with adult partners - there must be an additional children's room in addition to rooms for the sleeping area and the shared living area. Until the highest court's case law changes, the adjudicating chamber will continue to rely on housing support regulations, so that 80 m² is to be considered appropriate for the applicant's community of needs.
Only this understanding can be reconciled with the new regulation already mentioned in Section 22b Paragraph 3 SGB II. According to the justification for the law, the additional needs regulated there, which a statute according to § 22a SGB II will have to take into account in the future, include the need for single parenting, which deviates from typical needs for “general social reasons” (BT-Drs. 17/3404 , p. 102).
Note: See also the article in RA L. Zimmermann's blog
Single-parent Hartz IV recipients may have an increased need for living space in accordance with Section 22b Paragraph 3 SGB II.
socialrightsexperte.blogspot.com
3. Decisions of the state social courts on social assistance (SGB XII)
3.1 – Bavarian State Social Court judgment of July 19, 2011, – L 8 SO 26/11 –
Coverage of contributions to private health insurance by social welfare providers
The LSG Munich has decided that the social welfare provider must cover the costs of private health insurance even if the social welfare recipient has chosen a tariff other than the basic tariff.
Expenses in accordance with Section 32 Paragraph 5 Sentence 1 SGB V would only be covered if they were appropriate. There is therefore only a claim to reimbursement of the costs of contributions that ensure health insurance benefits to the extent of the basic tariff. In most cases, reimbursement of half the basic tariff is sufficient if the amount of the contribution is reduced by half by law for the duration of the need for assistance under the conditions of Section 12 Paragraph 1c VAG. This is the case with the plaintiff. The plaintiff, who had private health insurance before January 1, 2009, had no legal opportunity to terminate her insurance contract. However, despite the legal possibility, a tariff change to the basic tariff cannot be requested according to the provisions of SGB XII.
With its decision, the Bavarian Social Court has further specified the obligations of social welfare providers in the context of special needs in accordance with Section 34 Paragraph 5 SGB XII. It is now clear that social assistance recipients with private health insurance cannot be forced to switch to the basic tariff. However, the social assistance provider is only obliged to cover the costs of corresponding contributions according to the basic tariff.
Note: When it comes to basic security benefits in old age and in cases of reduced earning capacity, SGB
In Section 42 of the SGB In this respect, the BSG has abandoned its previous legal opinion in the BSG 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 view expressed by the BSG regarding the SGB II regarding the severability of a subsidy in accordance with Section 26 SGB II (not severable according to the judgment of January 18, 2011, Ref.: B 4 AS 108/10 R), the Senate here considers the examination of an individual claim within the scope the entire regulation of periodically approved basic security is justified. Because here the need for help exists regardless of the payment of the health insurance contribution (cf. ibid. para. 13 on the “accessory” of the claim according to Section 12 Paragraph 1c Sentence 5 VAG).
Note: see also the article in RA L. Zimmermann's blog
State Social Court of North Rhine-Westphalia Judgment of May 16, 2011, - L 19 AS 2130/10 -, appeal pending at the BSG under the AZ.: - B 14 AS 110/11 R-
Sozialrechtsexperte.blogspot.com
3.2 – State Social Court of Lower Saxony-Bremen judgment of January 27, 2011, – L 8 SO 171/08 –
According to Sections 53, 54 Paragraph 1 Sentence 1 No. 2 SGB Help for the blind.
According to the wording of Section 82 Paragraph 1 Sentence 1 SGB XII, assistance for the blind does not constitute income within the meaning of SGB XII.
The state blind allowance is income within the meaning of Section 82 Paragraph 1 Sentence 1 SGB XII. However, the (partial) use of this income to cover the costs of reading aid may not be required in accordance with Section 83 Paragraph 1 SGB XII.
According to this provision, benefits that are provided on the basis of public law regulations for an expressly stated purpose are only to be taken into account as income to the extent that social assistance serves the same purpose in the individual case.
The state blind allowance is therefore only to be taken into account as income as a so-called purpose benefit to the extent that social assistance in individual cases - in this case integration assistance in the form of covering the costs of reading aid - serves the same purpose.
The purpose of the individual benefit under social assistance law must be determined based on the specific needs to be met. Identity of purpose then exists to the extent that both services serve to cover the same need (Brühl in LPK-SGB XII, 8th edition 2008, § 83 paragraph 5 with further references). The purpose of the integration assistance to cover the corresponding needs in the form of covering the costs of a reading aid required for his studies can already be seen from Section 53 Paragraph 3 SGB XII.
According to this, the special task of integration assistance is, among other things, to eliminate or mitigate a disability or its consequences and to integrate disabled people into society. This includes, in particular, enabling or facilitating the participation of disabled people in community life, enabling them to pursue an appropriate profession or other appropriate activity or making them independent of care as far as possible. The purpose of enabling disabled people to pursue an appropriate profession or other appropriate activity is reflected in Section 54 Paragraph 1 No. 2 SGB profession at a university.
According to Section 13 Paragraph 1 No. 5 EinglHVO, this help primarily includes help with training at a university or academy. The special purpose of integration assistance in the form of the so-called university assistance here is to eliminate all disability-related obstacles and difficulties that stand in the way of attending university.
This means that the integration assistance granted in the form of covering the costs of the reading aid required for one's university studies does not (even partially) serve the same purpose as the state blind allowance, which is intended to compensate for the additional expenses caused by blindness and has strong elements of pension law (cf. also an identical purpose of Integration assistance and state blind allowance are negative: OVG Lüneburg, judgment of March 13, 1968 - IV OVG A 150/67 - FEVS, 16, 426; BVerwG, judgment of November 5, 1969 - VC 43.69 -, juris Rn. 14; VGH Baden-Württemberg , judgment of April 20, 1988 - 6 S 2217/86 -, FEVS 38, 247).
His consideration as income by the social welfare provider when granting integration assistance therefore violates Section 83 Paragraph 1 SGB XII. The disputed partial “crediting” of the state blind allowance against the integration assistance benefit is also unfair because the state blind allowance (as a priority similar benefit in accordance with Section 72 Paragraph 1 Sentence 1 SGB XII) replaced the aid for the blind in the amount granted (EUR 220.00). and this is not to be counted as income in accordance with Section 82 Paragraph 1 Sentence 1 SGB XII (see also OVG Lüneburg, ibid., 428).
Note: See also the article in RA L. Zimmermann's blog
Landshut Social Court judgment of February 2nd, 2011, - S 10 SO 36/09 -
sociallawexperte.blogspot.com
4. Decisions of the social courts on social assistance (SGB XII)
4.1 – Lüneburg Social Court judgment of May 12, 2011, – S 22 SO 19/09 –
Within the framework of § 74 SGB
The legal concept of necessity is an indefinite legal concept that can be fully verified in court (cf. judgment of the Chamber of January 18, 2010 - S 22 SO 87/09 -; Grube/Wahrendorf, 2nd edition 2008, § 74, Rd. 30). The necessity refers to both the type of costs and their amount (cf. Schellhorn/Schellhorn/Hohm, Commentary on SGB XII, 18th edition 2010, § 74, Rd. 14). What is local and appropriate is determined primarily by the municipality's relevant cemetery regulations and must be assessed according to objective standards (cf. judgment of the Baden-Württemberg Administrative Court (VGH) of December 19, 1990 - 6 S 1639/90 -) .
The costs that are to be borne 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 as a substitute (cf. LPK/SGB XII/Berlit, 8. Edition 2007, § 74, Rd. 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 impression of a pauper's grave should be avoided and attention should be paid to a burial in a simple, local manner with dignity (cf. judgment of the Hessian VGH of February 10, 2004 - 10 UE 2497/03 -; judgment of the Hanover Administrative Court of June 6, 2000 – 3 A 5028/99 -). General cremation or anonymous burial are not permitted 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, although there is no entitlement to cover the costs of a befitting funeral (§ 1968 BGB) (LPK/SGB /05 -).
The costs of a funeral abroad are not included in the required expenses. This applies in particular to the transfer, transport and burial costs according to local customs. In the present case, it would have been possible and reasonable for the deceased to be buried in an Islamic cemetery in Germany, especially Hamburg, so that the necessity of burial in Turkey under social welfare law can be denied (cf. also the judgment of the Higher Administrative Court of Hamburg dated February 21, 1992 – Bf IV 44/90 -, FEVS 43, 66). The fact that his personal wish was to be buried in Turkey does not constitute an obligation to provide social assistance, as this was associated with disproportionate additional costs. The burial abroad was therefore not necessary under social welfare law (see Schellhorn, in: Schellhorn/Schellhorn/Hohm, § 74, Rd. 17). A burial within the country would not have been unusual, as the significant number of Islamic cemeteries in large cities shows. The Islamic faith does not necessarily require burial in native soil. A denial of benefits for this cannot therefore violate the freedom to practice religion in accordance with Article 4 Paragraph 2 of the Basic Law (GG). This includes all conceivable cultic acts as well as the observance and practice of religious customs (cf. Maunz/Dürig, Commentary on the Basic Law, loose-leaf collection, Article 4, Rd. 101).
In addition, the fundamental right to freedom of religious practice is designed as a fundamental right of defense and does not open up any further opportunities for participation that would be at the expense of a third party (cf. von Münch/Kunig/Mager, Commentary on the GG, 5th edition 2000, Article 4, Rd. 61; Dreier/Morlok, Commentary on the Basic Law, 2nd edition 2004, Article 4, Rd. 103). Therefore, neither the freedom of religious practice of the deceased nor the plaintiff is violated by the non-payment of the transfer costs.
Within the framework of Section 74 SGB
In the present case, neither the transport costs from Hamburg to Istanbul (700 euros) nor the costs for the transfer coffin (600 euros) had to be borne.
The undertaker's flat rate included the necessary and appropriate costs in full for coffin accessories (61.36 euros), dressing and bedding (76.69 euros), transport up to 80 km (91.15 euros), transport carriers (61.36 euros), Laying out for the funeral service (71.58 euros), administration costs (38.35 euros) and transport coffin (29.65 euros). Advice and completion of the formalities and coffin decorations were not necessary, as a simple, local burial was to be assumed. In addition, the relevant formalities can also reasonably be carried out on your own, especially since the unemployed plaintiff was in a position to do this in terms of time.
With regard to the flat rate 2 of 366 euros, the procurement of linen cloths, the use of the washroom and the involvement of an imam for the funeral prayer were fully covered, as this is necessary for an Islamic funeral and the dignity of the deceased requires this. Due to Article 3 Paragraph 3 of the Basic Law, the Muslim burial is to be equated with the Christian burial, in which ritual washing and the funeral prayer are the core areas (cf. judgment of the Berlin Administrative Court of November 3, 1992 - 8 A 286/89 -).
In the amount of the necessary costs, it is unreasonable for the plaintiff as the survivor to bear the costs due to her need for help in accordance with SGB II, so that there is a tied claim against the defendant. The Chamber is unable to follow the defendant's argument and draw conclusions about the plaintiff's ability to pay based on the fact that relatives bear the flight costs.
4.2 – Lüneburg Social Court judgment of June 16, 2011, – S 22 SO 73/09 –
An amount of money received from an inheritance during the SGB-12 benefit receipt is considered assets if the inheritance occurred before the application for basic security benefits.
According to the BSG ruling of February 24, 2011 (B 14 AS 45/09), the amount paid out as a result of an inheritance represents assets. In the case of universal succession, the inheritance passes directly to the heirs by law in accordance with Section 1922 of the Civil Code (BGB). over, without prejudice to the fact that due to the right of renunciation, an inheritance is only acquired upon acceptance. The BSG assumes that the ability to dispose of the inheritance alone justifies the inflow. The inflow of the amount of money more than four years after the occurrence of the inheritance represents a silvering of existing assets and should still be qualified as assets. Income only exists if the person entitled to benefits has become the owner of a claim against the estate (see BSG judgment of October 28, 2009 - B 14 AS 62/08 R -).
This judgment of the BSG must be followed, which represents a departure from the previous higher court case law (cf. judgment of the State Social Court (LSG) North Rhine-Westphalia of April 6, 2011 - L 12 (20) AS 34/09 -; judgment of the Saxon LSG of February 21, 2011 - L 7 AS 724/09 -; judgment of the LSG Berlin-Brandenburg of November 16, 2010, - L 18 AS 1826/08 -; decision of the LSG Niedersachsen-Bremen of February 13, 2008 - L 13 AS 237/07 ER -, decision of the LSG North Rhine-Westphalia of March 23, 2006 - L 20 B 72/06 AS -; decision of the LSG Baden-Württemberg of February 21, 2007 - L 7 AS 690/07 ER-B -) .
When the inheritance occurred, the social assistance recipient had already acquired an expectant right to her share of the inheritance in the event of a subsequent inheritance. This expectant right, like the claim to a compulsory share, for which the BSG has already accepted asset status in its judgment of May 6, 2010 - B 14 AS 2/09 - represents the assets of the beneficiary in accordance with Section 90 SGB see also LPK/SGB II/Brühl, 3rd edition 2009, § 12, Rd. 10).
Note: See also the article in RA L. Zimmermann's blog
According to Section 82 Paragraph 1 Sentence 1 SGB provide for the corresponding application of the BVG and of pensions or allowances according to the Federal Compensation Act for damage to life, body or health, up to the amount of a comparable basic pension according to the BVG.
The utilization of assets is governed by Section 90 SGB XII. socialrightsexperte.blogspot.com
Author of the case law ticker: Willi 2 von Tacheles
Source: Tacheles legal ruling ticker, www.tacheles-socialhilfe.de
