1. Decisions of the state social courts on basic income support for job seekers (SGB II)
1.1 – Lower Saxony-Bremen State Social Court, decision of 12 August 2011, – L 15 AS 173/11 B ER
A ten percent surcharge on values in the housing benefit table within the scope of the SGB II also applies to the period after 31.2008.
It is not to follow the view that the surcharge on the values of the housing benefit table should be omitted for the period from 1 January 2009 onwards, because according to the case law of the Federal Social Court (judgment of 17 December 2009 – B 4 AS 50/09 R -) this surcharge should be applied exclusively in view of the fact that the table had not been adjusted to price increases of the previous years by 31 December 2008.
Rather, the Federal Social Court (BSG) stated in the aforementioned decision that the surcharge on the respective table value constitutes a "safety surcharge" necessary to protect the basic need of the person receiving assistance to secure their housing, because in the absence of a conclusive concept, it is impossible to assess with certainty what the appropriate reference rent actually is. The surcharge is therefore not based on a lack of adjustments for price increases, but rather on uncertainties arising from the absence of a conclusive concept (see also Higher Social Court of Hesse, decision of November 25, 2010 – L 6 AS 423/10 B ER). These uncertainties, however, are inherent in the new housing benefit table in the same way as those in the old table.
1.2 – Lower Saxony-Bremen State Social Court, decision of 11 August 2011, – L 15 AS 188/11 B ER
By way of a balancing of interests, benefits under the German Social Code, Book II (SGB II) are to be granted provisionally, because it is disputed whether Article 24(2) of the Citizens' Rights Directive violates European primary law and whether unemployment benefit II is to be regarded as social assistance within the meaning of this provision.
A final ruling by the highest court on these difficult and complex legal questions is still pending. Against this background, the state social courts – as far as can be seen – have recently decided overwhelmingly in favor of the applicants in preliminary injunction proceedings based on a balancing of interests (see decisions of the Berlin-Brandenburg State Social Court of November 30, 2010 – L 34 AS 1501/10 B ER, L 34 AS 1518/10 B PKH –, of May 17, 2011 – L 28 AS 566/11 B ER – and of June 30, 2011 – L 25 AS 535/11 B ER –; decision of the Bavarian State Social Court of December 22, 2010 – L 16 AS 767/10 B ER – and decision of the Hessian State Social Court of July 14, 2011 – L 7 AS 107/11 B ER-).
sozialgerichtsbarkeit.de
Note: see also the post on the blog of attorney L. Zimmermann.
Romanians and Bulgarians are not entitled to social support in North Rhine-Westphalia – (Off to Lower Saxony or Hesse, says Willi 2)
An article by Holger Dumke.
"Essen. Romanians and Bulgarians who stayed in Germany for an extended period of time alone to look for work may be excluded from Hartz IV benefits. This was decided by the Social Court in Essen. (Note by Willi 2 – should correctly read – This was decided by the State Social Court.)"
Poverty prevails at home. Thousands of Bulgarians and Romanians have migrated to Germany, to the major cities along the Rhine and Ruhr rivers, in search of a better economic future. They are looking for work, and some are applying for Hartz IV benefits. Job centers generally only grant benefits temporarily, and most applications are rejected. This practice has now been upheld by the North Rhine-Westphalia State Social Court in a landmark ruling.
North Rhine-Westphalia State Social Court, decision of May 30, 2011, – L 19 AS 388/11 B ER –
sozialrechtsexperte.blogspot.com
1.3 – Bavarian State Social Court decision of 01.07.2011, – L 7 AS 461/11 B ER –
Hartz IV recipients are not entitled to a change in the transfer note so that the BG number is not disclosed and the transfer text for the Federal Employment Agency is anonymized.
The notification of receipt of social benefits constitutes, as individual details concerning the personal circumstances of a specific person, a transmission of social data pursuant to Section 67 Paragraph 1 Sentence 1, Paragraph 6 Sentence 1 No. 3 of the Tenth Book of the German Social Code (SGB X). A regular payment by a social security institution contains such information. According to Section 35 Paragraph 2 of the First Book of the German Social Code (SGB I), this transmission is only permissible if it is authorized under Sections 67 et seq. of the Tenth Book of the German Social Code (SGB X).
According to Section 67d Paragraph 1 Sentence 1 of the German Social Code, Book X (SGB X), the transfer of data is permissible insofar as a transfer authorization exists under Sections 68 to 77 of the SGB X or other legal provisions of the SGB. According to Section 69 Paragraph 1 Number 1 of the SGB X, the transfer of social data is permissible insofar as it is necessary for fulfilling the purposes for which it was collected or for fulfilling a statutory task of the transferring agency under the SGB.
The transfer with the payment reference "Federal Employment Agency" and the BG number is a permissible data transfer. It is necessary for fulfilling the legal obligation to provide benefits. As the applicant correctly states, this involves monthly payments to millions of benefit recipients. With such a large volume of data, the responsible authority must use unique identifiers and an official name to ensure traceability of whether the benefit has been provided in each individual case.
According to Section 51a of the German Social Code, Book II (SGB II), every person receiving benefits under SGB II is assigned a customer number, or, for households receiving benefits, a BG number. According to sentence 2 of this provision, this number serves as an identification mark and for the purposes specified in Section 51b, paragraph 3 of SGB II. According to Section 51b, paragraph 3, number 1 of SGB II, the customer numbers assigned by the respective job center and transmitted to the Federal Employment Agency may be processed and used for the future granting of benefits. These numbers consist of consecutive numbers and the letters "BG". The numbers do not contain any identifiable information about the individual benefit recipient.
According to Section 42 Sentence 1 of the German Social Code, Book II (SGB II), monetary benefits are transferred to the account specified in the application for benefits at a financial institution, unless they are transmitted in another way (in particular in cash or by check) in accordance with Sentence 2 – usually at the expense of the benefit recipient.
The respondent is therefore permitted to use the customer number or BG number pursuant to Section 51a of
the German Social Code, Book II (SGB II) for the (future) granting of benefits, which are regularly paid by bank transfer in accordance with Section 42 of the SGB II. The applicant has refused a cash payment.
Furthermore, it is unclear what additional data protection the applicant's requested re-encryption of the aforementioned number would provide, as it already contains no information about the individual recipient of services. On the contrary, re-encryption would negate the advantage of simple and unambiguous process allocation.
In addition, the applicant objects to the inclusion of "Federal Employment Agency" in the transfer note.
Insofar as his request is to prevent his bank from receiving information about the sender's identity, he cannot achieve this for technical reasons related to the transfer process. As the Social Court correctly states, the applicant's receiving bank is always able to assign a transfer to the respondent. Anyone transferring money to another person must disclose their identity for the transfer to be processed. For example, the receiving bank must be able to identify the sender if the transfer fails (e.g., due to the recipient's account being closed).
However, this does not mean that the respondent's identity must also appear in the payment reference. This is necessary, however, for the provision of benefits within the meaning of Section 69 Paragraph 1 Number 1 of the German Social Code, Book X (SGB X), because then benefit recipients can allocate the payments (especially in the German Social Code, Book II (SGB II), where monthly payment amounts often vary), insufficient or excessive payments can be proven, and the protection against garnishment at the bank pursuant to Section 55 of the German Social Code, Book I (SGB I) is facilitated.
Even after the bank has converted the garnishment protection to a protected account pursuant to Section 850k of the German Code of Civil Procedure (ZPO) (cf. Section 55 Paragraph 5 of the German Social Code, Book I (SGB I)), the recipient of benefits must prove receipt of benefits under the German Social Code, Book II (SGB II) or Book XII (SGB XII) in order to enforce the increased garnishment protection pursuant to Section 850k Paragraph 2 Sentence 1 No. 1 b of the ZPO. It must be conceded that, until now, the abbreviation "BA" in the transfer note appeared to suffice. However, it is obvious that, in the context of mass processing, a more precise designation would facilitate the fulfillment of the task.
Whether exceptions are possible in individual cases may be clarified in the main proceedings.
The Federal Administrative Court declared the designation "social benefit" on a payment reference inadmissible (judgment of June 23, 1994, 5 C 16/92). However, the present case concerns the legally mandated use of the customer or BG number and the indication of the transferring authority.
Note: See also the post on the blog of attorney L. Zimmermann
Duisburg Social Court, Judgment of January 17, 2011, – S 31 AS 479/08 –
sozialrechtsexperte.blogspot.com
1.4 – Bavarian State Social Court decision of 29.06.2011, – L 16 AS 337/11 B ER –
The analogous application of Section 26 Paragraph 2 Sentence 1 No. 2 Half-Sentence 1 of the German Social Code, Book II (SGB II) cannot lead to granting the person in need of assistance an entitlement to the assumption of contributions to private health and long-term care insurance to a greater extent than half the contribution rate in the basic tariff.
Granting such a right would be the responsibility of the legislature, which would have to create an explicit regulation in this regard. Benefits granted by analogy to Section 26 Paragraph 2 Sentence 1 Number 2 Clause 1 of the German Social Code, Book II (SGB II), cannot exceed what is absolutely necessary to guarantee the dignified minimum standard of living guaranteed by Article 1 Paragraph 1 of the Basic Law (GG) in conjunction with the social welfare principle of Article 20 Paragraph 1 GG. Furthermore, when determining the scope of the analogy, the principle of the priority of self-help enshrined in Section 2 SGB II must be taken into account. This principle stipulates that those in need of assistance must exhaust all possibilities to end or reduce their need for assistance and must use all available means and resources to provide for their livelihood on their own responsibility. This includes reducing the contribution burden in private health and long-term care insurance by switching to the basic tariff, which has been legally regulated since January 1, 2009.
The Federal Social Court (BSG) ruled in its judgment of January 18, 2011 (Case No. B 4 AS 108/10 R, ZFSH/SGB 2011, 304) that, in order to prevent an unconstitutional shortfall in coverage of basic needs, contributions to private health and long-term care insurance exceeding the amount specified in Section 12 Paragraph 1c Sentence 6 of the German Social Code, Book II (SGB II), which would also be borne by a recipient of unemployment benefit II in the statutory health insurance system, must be covered analogously to Section 26 Paragraph 2 Sentence 1 No. 2 Clause 1 of the SGB II. In paragraph 20 of its decision, the BSG expressly left open the question of whether the subsidy amount is generally limited to half the basic tariff. In the case underlying the BSG's decision, the plaintiff's private health insurance contribution was less than half the contribution rate for the basic tariff.
sozialgerichtsbarkeit.de
Note: see also the post on the blog of attorney L. Zimmermann.
sozialrechtsexperte.blogspot.com
1.5 – North Rhine-Westphalia State Social Court, decision of 30 August 2011, – L 19 AS 1339/11 B –
Entitlement to school supplies under Section 24a of the German Social Code, Book II (SGB II) also exists if no benefits under the SGB II were actually received or if their parents' entitlement to benefits to secure their livelihood was excluded due to unauthorized absence from their place of residence under Section 7 Paragraph 4a of the SGB II.
The crucial point is that they were entitled to benefits to secure their livelihood, namely a claim to social assistance under Section 28 of the German Social Code, Book II (see Fügemann in Hauck/Noftz, SGB II, Section 24a, marginal note 26f; Bundestag printed matter 16/13429, p. 56).
The provision of Section 7 Paragraph 4a of the German Social Code, Book II (SGB II) in its former version does not apply to recipients of social assistance (see, in this regard, the judgment of the Higher Social Court of Baden-Württemberg of July 14, 2010 – L 3 AS 3552/09 –; Spellbrink in Eicher/Spellbrink, SGB II, 2nd edition, Section 7, marginal note 87; see also Parliamentary Document 17/3404, p. 92, according to which the amendment of the provision of Section 7 Paragraph 4a of the SGB II clarifies that only employable benefit recipients lose their entitlement to benefits in the event of unauthorized absence from their place of residence, and that persons incapable of working do not require special approval for absence from their place of residence).
1.6 – North Rhine-Westphalia State Social Court, decision of 22 August 2011, – L 19 AS 1299/11 B ER –
Incorrect information regarding legal consequences renders a sanction notice unlawful
According to the Higher Social Court of North Rhine-Westphalia (LSG), decision of 22.08.2011, – L 19 AS 1299/11 B ER – the instruction on the legal consequences must be specific, correct and complete in each individual case and must be given promptly in connection with the required conduct, and must explain to the employable benefit recipient in an understandable form what direct and concrete consequences will result for him from refusing the required conduct if there is no important reason for doing so (cf. Federal Social Court (BSG) judgment of 09.11.2010 – B 4 AS 27/10 R, para. 26 with further references to case law).
The notification of legal consequences attached to the administrative act replacing the integration agreement does not meet these requirements. While it was provided specifically, directly in writing, and refers to the obligations stipulated in the decision, there is no ambiguity as to which breach of duty by the applicant the notification of legal consequences refers to.
However, the information on legal consequences does not make it immediately clear to the applicant what specific legal consequence will result from a breach of duty.
It is not apparent from the information on legal consequences that a reduction of 100% will occur without good reason in the event of a violation of one of the obligations stipulated for the applicant in the administrative act, due to the existence of several repeated violations of obligations
The instruction initially states that if the applicant violates any of the obligations stipulated in the administrative act without good cause, their standard benefit will be reduced by 30% for a period of three months. The instruction further states, "Should you repeatedly fail to comply with the aforementioned obligations within one year, your unemployment benefit II will be reduced by 60% of the applicable standard benefit rate. With each further repeated violation, your unemployment benefit II will be completely forfeited…" These statements refer to the applicant's future conduct.
It is not apparent from them that the consequence of a violation of the deadline-bound obligations stipulated in the decision – submission of the application portfolio by May 10, 2011, and compilation of a list by May 20, 2011 – will be a reduction of 100%. It should also be noted that the further explanations of the term "violation of similar cooperation obligations," which can also trigger a reduction of 60% or 100% in the case of repeated violations, do not mention the refusal to conclude an integration agreement, which was the reason for the imposition of the two sanctions in 2010.
Therefore, based on the content of the legal consequences notice, the applicant could not, through the simplest and most obvious considerations, recognize that a violation of the obligations stipulated in the decision would result in a 100% reduction in benefits without good cause
It is also not apparent that the applicant was aware of these legal consequences (cf. regarding the requirements for knowledge: Berlit, Changes in the sanction law of the SGB II as of 01.04.2011, info also 2011, p. 53, 55).
The LSG NRW continues to hold the view that the job center must make a decision in the sanction notice regarding the granting of supplementary benefits in kind or benefits in kind if the applicant lives in a household with a minor child.
The obligation to provide benefits in kind is, in principle, unconditional and mandatory if minor children live in the household.
There is much to suggest that the basic income support provider must make the decision simultaneously with the sanction decision, regardless of whether the sanctioned benefit recipient has submitted an application for supplementary benefits in kind (cf. Sonnhoff in jurisPK-SGB II, § 31 Rn 50, apparently also Berlit, Changes in the Sanctions Law of the SGB II to 01.04.2011, info also 2011, p. 58).
Note: See also the post on the blog of attorney L. Zimmermann
If the application for benefits in kind pursuant to Section 31a Paragraph 3 Sentence 1 of the German Social Code, Book II (SGB II) is submitted during the hearing, a decision on this matter must be made simultaneously with the sanction, at least in cases where unemployment benefit II is discontinued, for constitutional reasons.
sozialrechtsexperte.blogspot.com
2. Decisions of the social courts on basic income support for job seekers (SGB II)
2.1 – Marburg Social Court, Judgment of 12 August 2011, - S 8 AS 169/11 -, Appeal allowed
Does the new regulation regarding the crediting of parental allowance as income for recipients of SGB II and SGB XII benefits violate the general principle of equality under Article 3 Paragraph 1 of the Basic Law in conjunction with Article 6 Paragraph 1 of the Basic Law and the social welfare state principle?
The legal dispute is not to be submitted to the Federal Constitutional Court pursuant to Article 100 Paragraph 1 Sentence 1 of the Basic Law, since the provision of Section 10 Paragraph 5 of the Federal Parental Allowance and Parental Leave Act (BEEG) is not unconstitutional.
The following legal dispute was submitted to the Social Court of Marburg by the plaintiffs:
The plaintiffs argue that the decision is unlawful because the parental allowance is counted as income under Section 11 of the German Social Code, Book II (SGB II).
This is incorrect. According to Section 10 Paragraph 1 of the Federal Parental Allowance and Parental Leave Act (BEEG), parental allowance is not to be offset against other income-dependent social benefits. Even discretionary benefits may not be taken into account according to Section 10 Paragraph 2 of the BEEG. Since January 1, 2011, the only exceptions to this are recipients of benefits under the German Social Code, Book II (SGB II), Book XII (SGB XII), and the child supplement under Section 6a of the Federal Child Benefit Act (BKGG) (Section 10 Paragraph 5 Sentence 1 BEEG). Therefore, recipients of SGB II and SGB XII benefits who receive child benefit under Section 1 of the BEEG due to childcare responsibilities, without having been employed before the birth, are in a worse position than recipients of other income-dependent social benefits, such as BAföG (Federal Training Assistance Act) recipients. The new regulation would therefore violate the general principle of equality enshrined in Article 3 Paragraph 1 of the Basic Law in conjunction with Article 6 Paragraph 1 of the Basic Law and the social welfare principle. The legislature differentiates between parents with regard to the family benefit of parental allowance, excluding the poorest parents and their children from receiving this benefit without any discernible justification.
In its judgment of 12 August 2011, – S 8 AS 169/11 – the Social Court of Marburg ruled that the legal dispute does not need to be referred to the Federal Constitutional Court pursuant to Article 100 Paragraph 1 Sentence 1 of the Basic Law, as the provision of Section 10 Paragraph 5 of the Federal Parental Allowance and Parental Leave Act (BEEG) is not unconstitutional.
Parental allowance does not constitute a designated income within the meaning of Section 11 Paragraph 3 No. 1a of the German Social Code, Book II (SGB II), as it is not solely intended to cover the costs of childcare. Rather, its purpose is to cover the basic living expenses of both parents and child.
While it is true that the plaintiffs are correct in asserting that parental allowance is only counted as income for the recipients of benefits listed in Section 10 Paragraph 5 Sentence 1 of the Federal Parental Allowance and Parental Leave Act (BEEG) and is therefore not counted towards all income-related social benefits, it is not counted towards, for example, BAföG (Federal Training Assistance Act) or housing benefit recipients. This follows from Section 21 Paragraph 3 Number 4 of the BAföG in conjunction with Section 1 Number 1f of the Ordinance on Section 21 of the BAföG, provided the amount does not exceed €300.00. The non-counting of parental allowance in the housing benefit calculation follows from Section 14 Paragraph 2 Number 6 of the Housing Benefit Act (WoGG).
The plaintiffs argue that the provision of Section 10 Paragraph 5 Sentence 1 BEEG is unconstitutional because it results in unequal treatment of the benefit recipients mentioned in Section 10 Paragraph 5 BEEG compared to, for example, BAföG recipients and housing benefit recipients.
In the court's opinion, the regulation enacted by the legislature in Section 10 Paragraph 5 Sentence 1 of the Federal Parental Allowance and Parental Leave Act (BEEG) is consistent with Article 3 Paragraph 1, Article 6 Paragraph 1 of the Basic Law (GG), and Article 1 of the Basic Law in conjunction with Article 20 Paragraph 1 of the Basic Law (GG). The different treatment of, for example, recipients of unemployment benefit I, student financial aid (BAföG), and housing benefit, and the group of persons mentioned in Section 10 Paragraph 5 Sentence 1 of the BEEG, lies firstly in the type of social benefit received and secondly in the proximity to employment.
With regard to the different treatment of recipients of unemployment benefit I and recipients of benefits under the German Social Code, Book II (SGB II), Book XII (SGB XII) and Section 6a of the Federal Child Benefit Act, it should be taken into account that the benefits referred to in Section 10 Paragraph 5 Sentence 1 of the Federal Parental Allowance and Parental Leave Act (BEEG) are tax-financed benefits, while unemployment benefit I is an insurance benefit.
The court also finds no violation of Article 3 Paragraph 1 of the Basic Law in the fact that parental allowance up to a maximum of €300 is not taken into account when calculating housing benefit. It must be considered that housing benefit recipients have their own income, which, however, is insufficient to cover their living expenses, which is why benefits are granted to cover housing costs. It should be noted that the income and asset assessment for benefit eligibility differs under the Housing Benefit Act (WoGG) and the Social Code, Book II (SGB II) (see Sections 15 et seq. WoGG and Sections 11-11b SGB II).
The regulation in Section 10 Paragraph 5 of the Federal Parental Allowance and Parental Leave Act (BEEG) is problematic for the group of people who are employed or receive unemployment benefit I and who, for various reasons (such as the amount of their earnings/social benefit, the size of their household, or the amount of their housing costs), cannot cover their existing needs from their earned income or social benefit. If they receive unemployment benefit I and housing benefit, no offset would be applied according to Section 10 Paragraph 1 BEEG in conjunction with Section 14 Paragraph 2 Number 6 of the Housing Benefit Act (WoGG). However, in the case of employment and an existing supplementary entitlement to benefits under the German Social Code, Book II (SGB II), the parental allowance would be offset.
The court also does not share the plaintiffs' view that the inclusion of parental allowance as income violates Article 6 Paragraph 1 of the Basic Law. Article 6 Paragraph 1 of the Basic Law stipulates that marriage and family are under the special protection of the state. Article 6 Paragraph 1 of the Basic Law establishes a duty of the state to protect and promote marriage and family (Leibholz/Rinck, Basic Law Commentary, Volume 1, Article 6, marginal notes 71 et seq.).
2.2 – Social Court Stade Judgment of 19 July 2011, – S 28 AS 143/09 –
Value added tax levied in accordance with the Value Added Tax Act (UStG) is not to be included in the deduction provision of Section 11 Paragraph 2 Sentence 1 No. 1 SGB II.
This is because this tax is not a tax levied on income, but rather a tax payable on the turnover of goods and services of a company, economically structured as a consumption tax (cf. Hohm/Klaus in: GK-SGB II, § 11 Rn. 167 ff.)
Note: See also the decision of the Berlin Social Court of 25 January 2011, – S 201 AS 328/11 ER –
1. The flat-rate amounts for non-cash benefits according to the table of the Federal Ministry of Finance represent a tax simplification for restaurant businesses.
2. The approach of treating such flat rates as business income to be taken into account within the meaning of Section 11 of the German Social Code, Book II (SGB II), is not lawful if an applicant credibly demonstrates that he does not feed himself and his family with the food he buys for his Asian snack bar.
2.3 – Social Court Würzburg Decision of 29.08.2011, – S 15 AS 560/11 ER –
If the application for benefits in kind pursuant to Section 31a Paragraph 3 Sentence 1 of the German Social Code, Book II (SGB II) is already submitted during the hearing, a decision on this matter must be made simultaneously with the sanction, at least in the case of the cessation of unemployment benefit II, for constitutional reasons.
The Social Court of Würzburg ruled accordingly in its decision of 29.08.2011, – S 15 AS 560/11 ER -.
According to Section 31a Paragraph 3 Sentence 1 of the German Social Code, Book II (SGB II), if unemployment benefit II is reduced by more than 30 percent of the standard benefit rate applicable under Section 20, the agency may, upon application, provide supplementary benefits in kind or benefits in kind to a reasonable extent. With the application requirement, the legislator, through the Act on the Determination of Standard Benefit Rates and the Amendment of the Second and Twelfth Books of the German Social Code of March 24, 2011 (Federal Law Gazette I 2011, pp. 453 et seq.), clarified the disputed question of whether benefits in kind and benefits in kind must already be granted in the sanction notice (Geiger, Guide to Unemployment Benefit II [8th ed. 2011], T XII 1; cf. regarding the state of the dispute under the old law, e.g., Higher Social Court of Saxony-Anhalt, decision of January 5, 2011 – L 2 AS 428/10 B ER – with further references).
Supplementary benefits are therefore only to be granted upon application.
However, if the application is submitted during the hearing, the court is of the opinion that, at least in cases involving the termination of unemployment benefit II, a decision on this matter must be made simultaneously with the sanction. While the decision regarding the sanction and the granting of supplementary benefits in kind or cash equivalents are generally separate administrative decisions, Section 31a Paragraph 3 Sentence 1 of the German Social Code, Book II (SGB II) does not, in principle, link them temporally. Rather, it assumes that the decision regarding the granting of supplementary benefits in kind or cash equivalents can follow the decision regarding the sanction (see Darmstadt Social Court, decision of October 19, 2010 – S 27 AS 1286/10 ER – para. 15).
However, the court deems it constitutionally necessary that, at least in the present case, where unemployment benefit II is completely discontinued and self-help is not possible, the sanction decision must, without the need for special circumstances, simultaneously determine whether supplementary benefits in kind or monetary benefits are to be provided in the specific case. The fundamental right to a dignified minimum standard of living under Article 1 Paragraph 1 of the Basic Law (GG) in conjunction with the social welfare principle of Article 20 Paragraph 1 GG guarantees every person in need those material prerequisites that are essential for their physical existence and for a minimum level of participation in social, cultural, and political life (Federal Constitutional Court, Judgment of February 9, 2010 – 1 BvL 1/09, 1 BvL 3/09, 1 BvL 4/09 – para. 133 et seq.). This does not, however, mandate the granting of social benefits independent of need and without preconditions (Federal Constitutional Court, decision not to accept the appeal of 7 July 2010 – 1 BvR 2556/09 – para. 13; Berlit, info also 2011, 53, 55 with further references). However, the fundamental right to a dignified minimum standard of living does influence the application and interpretation of the sanction regulations and narrows the scope for sanctions (Berlit, ibid.).
It follows that the cessation of unemployment benefit II can only be implemented in a constitutionally sound, i.e., proportionate, manner by simultaneously deciding on the granting of benefits pursuant to Section 31a Paragraph 3 Sentence 1 of the German Social Code, Book II (SGB II). Otherwise, during the sanction period, the provision of essential food supplies, and thus the guarantee of the physical minimum subsistence level, would be lacking (see Higher Social Court of Saxony-Anhalt, decision of January 5, 2011 – L 2 AS 428/10 B ER, and Higher Social Court of North Rhine-Westphalia, decision of September 9, 2009 – L 7 B 211/09 AS ER, each with further references).
3. Decisions of the Social Courts on Social Assistance (SGB XII)
3.1 – Nuremberg Social Court Judgment of 30 June 2011, – S 20 SO 54/10 –
A longer stay of a person in need of assistance in a hospital does not in itself justify a different determination of the standard rate pursuant to Section 28 Paragraph 1 Sentence 2 SGB XII aF (now Section 27a Paragraph 4 Sentence 1 SGB XII).
According to the Social Court of Nuremberg, it must first be noted that there is no difference between the German Social Code, Book XII (SGB XII) and Book II (SGB II) in such a way that the principle of individualization applies in SGB XII and the principle of lump-sum payment in SGB II.
Rather, the Act of December 27, 2003, which integrated social assistance law into the Social Code and replaced the Federal Social Assistance Act (BSHG) with Book XII of the Social Code (SGB XII), led to a restructuring of needs and a recalculation of standard benefit rates. By standardizing most one-off payments to social assistance recipients, which social assistance authorities previously had to decide on a case-by-case basis, and incorporating them into the standard benefit rates, the legislature responded to demands from practitioners, particularly social assistance providers. This was intended to eliminate the need for detailed needs assessments and individual case decisions, thereby avoiding disputes between agencies and benefit recipients, as well as appeals and court proceedings (see, among others, Bundestag Printed Matter 15/1514, p. 53).
Secondly, the self-reliance of benefit recipients should be strengthened. In particular, it is now incumbent upon benefit recipients to save a portion of their monthly benefits in order to make larger purchases when needed (ibid., pp. 50, 53). As a result of the lump-sum payment of benefits, the benefit recipient is no longer dependent on a positive decision from the social welfare agency regarding a claimed need in each individual case. Rather, they can and must now decide for themselves which priorities to set and thus which needs they wish to cover with the lump-sum financial support from the state. This enables them to have more money for other needs through skillful and economical budgeting or by foregoing the coverage of certain needs.
The calculation of standard benefit rates is governed by Section 29 of the German Social Code, Book XII (SGB XII), and is based on the consumer spending of households in lower income groups. According to the law, the calculated standard benefit rates are intended to cover the average needs of a benefit recipient under the SGB XII, i.e., the average necessary cost of living. Thus, the SGB XII, insofar as it concerns ensuring the ongoing subsistence of benefit recipients (excluding additional needs and costs for accommodation and heating), – like the German Social Code, Book II (SGB II), and unlike the Federal Social Assistance Act (BSHG) – generally assumes the provision of benefits in a lump-sum form (for the SGB XII, see, among others, Scheider in Schellhorn, SGB XII, Section 28, marginal note 6 et seq.), specifically in the form of the standard benefit rate (cf. Section 20 SGB II (formerly standard benefit) and Section 27a SGB XII (formerly Section 28 SGB XII aF)).
However, due to specific circumstances in individual cases, a different calculation of the standard benefit rate may be necessary in order to guarantee a dignified minimum standard of living in accordance with the constitution and to ensure the necessary subsistence of the benefit recipient, while also complying with the individualization requirement of Section 9 Paragraph 1 of the German Social Code, Book XII (SGB XII). The opening clause of Section 28 Paragraph 1 Sentence 2 of the SGB XII, which constitutes an exception to Sentence 1, serves this purpose. For the area of the German Social Code, Book II (SGB II), the legislator, based on the ruling of the Federal Constitutional Court of February 9, 2010 – 1 BvL 1/09, 1 BvL 3/09, 1 BvL 4/09 – has since created a hardship provision in Section 21 Paragraph 6 of the SGB II similar to Section 28 Paragraph 1 Sentence 2 of the German Social Code, Book XII (SGB XII), without, however, providing for the possibility of reducing the standard benefit rate as in the SGB XII (see Kalhorn in Hauck/Noftz, SGB II, Section 21, marginal note 71). This has further aligned the benefit systems of the SGB II and SGB XII.
Based on the legislative concept described above, the mere fact that a person entitled to benefits under Book XII of the German Social Code (SGB XII) is (temporarily) staying in a hospital is not sufficient to justify a different determination of the (flat-rate) standard benefit rate pursuant to Section 28 Paragraph 1 Sentence 2 of Book XII of the German Social Code (SGB XII) (old version, now Section 27a Paragraph 4 Sentence 1 of Book XII of the German Social Code (SGB XII)). As explained, the calculation of the standard benefit rate is based on the average monthly needs of a benefit recipient under Book XII of the German Social Code (SGB XII).
An application of Section 28 Paragraph 1 Sentence 2 of the German Social Code, Book XII (SGB XII aF) is therefore only possible if there is a situation in which the average (individual) need of the benefit recipient demonstrably deviates from the average need on which the standard rate is based.
The court leaves open the question of whether Section 28 Paragraph 1 Sentence 2 of the German Social Code, Book XII (old version) can, in principle, cover cases in which the beneficiary receives free food from third parties (cf. BT-Drucks. 15/1514, p. 59).
The applicability of Section 28 Paragraph 1 Sentence 2 of the German Social Code, Book XII (SGB XII aF), could be considered, for example, if the beneficiary has been granted a life annuity with free board. However, it should be noted that the legislator has elsewhere (cf. Section 2 Paragraph 1 Sentence 1 Clause 1 of the Ordinance Implementing Section 82 of the Twelfth Book of the German Social Code) classified the provision of board as income that does not consist of money. In this respect, there is a lack of a clear legislative concept as to what extent and, if applicable, according to which provision of the SGB XII, benefits in kind provided by third parties, in particular food, are to be considered as reducing benefits (see Federal Social Court judgment of March 23, 2010 – B 8 SO 17/09 R).
Furthermore, a different determination of the standard rate was not possible because the (presumed) alternative coverage of needs (provision of meals in the hospital) was not provided by a social welfare agency as a benefit under Book XII of the German Social Code (SGB XII). According to the case law of the Federal Social Court (loc. cit.), Section 28 Paragraph 1 Sentence 2 of Book XII of the German Social Code (SGB XII) in its former version is not applicable in this case.
Firstly, it appears contradictory for the defendant to invoke the principle of individualization when reducing the recipient's standard benefit rate, while simultaneously applying a blanket reduction. Instead, it would be necessary to determine in detail the extent to which the recipient has different, individual needs during their hospital stay, in particular to what extent potential savings (e.g., due to free meals) are offset by additional expenses (higher prices for everyday necessities such as food, beverages, cosmetics, books, and newspapers, as well as additional telephone costs, etc.) (see Social Court Detmold, judgment of June 1, 2010 – S 2 SO 74/10). Only in this way could a different, individualized standard benefit rate be determined.
The provision of meals in the hospital was also not to be considered as income (in the form of benefits in kind) pursuant to Section 82 of the German Social Code, Book XII (SGB XII), as it would reduce benefits.
Note: See also the post on the blog of attorney L. Zimmermann
North Rhine-Westphalia State Social Court, Judgment of February 23, 2011, – L 12 SO 485/10 –
sozialrechtsexperte.blogspot.com
Note: See also the article in the Thomé Newsletter of September 9, 2011, author: Social Affairs Officer Harald Thome
The Social Court of Nuremberg is generally challenging the crediting of hospital meals under the German Social Code, Book XII (SGB XII)
It is a marginal area, but it is part of the particular disadvantage faced by recipients of benefits under Book XII of the German Social Code (SGB XII). If they are admitted to hospital, their standard benefit is reduced to the cash amount of EUR 98.28 due to a different needs assessment (§ 27a para. 3 SGB XII, § 27b para. 2 SGB XII).
The Nuremberg Social Court (SG N, June 30, 2011 – S 20 SO 54/10) has now challenged this practice of reducing benefits with a surprising and internally consistent decision. I would like to bring this decision to the attention of the readership and encourage them to challenge this deplorable practice of reducing benefits under the German Social Code, Book XII (SGB XII).
It would also be desirable for politicians to address the appalling discrimination against those receiving benefits under Book XII of the German Social Code (SGB XII). Examples include hospital meals, the crediting of earned income, the lack of protected vehicle allowances, a laughable level of protected assets, the reduction of standard benefits for the homeless and disabled to 80%, and much more.
The Nuremberg decision, in turn, is based on a decision by the Social Court of Detmold, which, however, was partially overturned by the Higher Social Court of North Rhine-Westphalia in its judgment of 23 February 2011 – L 12 SO 485/10.
Author of the legal case ticker: Willi 2 from Tacheles
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
