1. Decision of the Federal Social Court of 26 May 2011 on basic income support for job seekers (SGB II)
1.1 – BSG, Judgment of 26 May 2011, – B 14 AS 86/09 R –
Hartz IV – The abstract assessment of the adequacy of the housing allowance in Saxony cannot be carried out without taking into account the available living space.
Benefits for accommodation and heating are provided in the amount of the actual expenses, insofar as these are reasonable (Section 22 Paragraph 1 Sentence 1 SGB II, which has also not been amended in the meantime).
The concept of appropriateness, as an indeterminate legal term, is subject to unrestricted judicial review (established case law, cf. only BSG of 19 February 2009 – B 4 AS 30/08 R – BSGE 102, 263 = SozR 4-4200 § 22 No. 19).<München> , each paragraph 12 with further references). A distinction must be made between the benefit for accommodation and the benefit for heating, as can already be seen from the wording of the provision with the use of the plural "benefits" as well as from the case law of the Senate (BSG of 2 July 2009 – B 14 AS 36/08 R – BSGE 104, 41 = SozR 4-4200 § 22 No. 23; most recently BSG of 19 October 2010 – B 14 AS 50/10 R, paragraph 18).
Determining the housing allowance to which a person who is eligible for benefits is entitled requires a multi-step process. First, the abstractly appropriate housing allowance must be determined in a multi-stage procedure based on the so-called product theory, and the appropriate apartment size must be determined as the basis for all further calculations (see, among others, Federal Social Court [BSG] judgment of November 7, 2006 – B 7b AS 18/06 R – BSGE 97, 254 = SozR 4-4200 § 22 No. 3; BSG judgment of October 19, 2010 – B 14 AS 50/10 R –, paragraphs 20 et seq.; most recently BSG judgment of April 13, 2011 – B 14 AS 106/10 R-).
However, the LSG's view regarding the abstractly appropriate apartment size of 45 square meters for single people in the Free State of Saxony cannot be followed.
To determine the appropriate living space, the living space sizes for eligible residents in social housing construction must be taken into account (established case law since BSG of 7 November 2006 – B 7b AS 18/06 R – BSGE 97, 254 = SozR 4-4200 § 22 No. 3, each at paragraph 19; most recently BSG of 13 April 2011 – B 14 AS 106/10 R).
With regard to the allocation of subsidized rental housing, both Section 27 Paragraph 4 and Section 10 of the Law on Social Housing Promotion of 13 September 2001 (Federal Law Gazette I 2376: “Housing Promotion Act” hereinafter: WoFG) refer to the “provisions” of the respective state because of the relevant apartment size.
According to the findings of the Higher Social Court (LSG), there are no such provisions under the Housing Promotion Act (WoFG) in Saxony. Therefore, the LSG's view that the repealed Administrative Regulation on the Saxon Housing Promotion Act (VwV-SächsBelG) can still be applied is incorrect.
Specifically regarding the situation in the Free State of Saxony, the 4th Senate of the Federal Social Court (BSG) stated the following in its judgment of 22 September 2009 (B 4 AS 70/08 R – RdNr 14 f):
For reasons of legal certainty and practicality, the values set by the Länder on the basis of Section 10 WoFG should be used until the legislator has issued a regulation possible under Section 27 SGB II.
However, this justification for the VwV-Ersatzwohnraumförderung (administrative regulation on replacement housing) shows that, in accordance with the 4th Senate, it must be the basis for the adequacy test according to the federal law § 22 para. 1 sentence 1 SGB II and not the older VwV-SächsBelG (administrative regulation on the Saxon Housing Promotion Act).
For the abstract adequacy of the accommodation allowance cannot be determined without taking into account the available living space (cf. BSG of 19.10.2010 – B 14 AS 50/10 R – (Berlin) para. 27 f; BSG of 13.4.2011 – B 14 AS 106/10 R – (Freiburg)).
The fact that the determination of adequacy according to Section 22 Paragraph 1 of the German Social Code, Book II (SGB II) is based on the apartment sizes according to the regulations of social housing construction follows from Section 1 Paragraph 2 of the German Housing Promotion Act (WoFG), which reads: “The target group of social housing promotion are households that cannot adequately provide themselves with housing on the market and are dependent on support.
Under these conditions, the promotion of rental housing particularly supports low-income households. These low-income households, which have difficulty finding suitable housing on the market, include those whose members receive benefits under the German Social Code, Book II (SGB II), because their potential expenditure on housing costs is correspondingly limited.
Note: See also the post on the blog of attorney L. Zimmermann
See also: Federal Social Court overturns Freiburg rent limits for Hartz IV recipients – review of the appropriateness of heating allowance (Federal Social Court, judgment of April 13, 2011, – B 14 AS 106/10 R –)
sozialrechtsexperte.blogspot.com
2. Decisions of the Federal Social Court of 13 April 2011 on basic income support for job seekers (SGB II)
2.1 – BSG, Judgment of 13.04.2011, – B 14 AS 98/10 R –
If recipients of Hartz IV benefits are unlawfully assigned one-euro jobs, they are entitled to back payment of the collectively agreed wage.
Insofar as the provider of basic income support assigns the employable person in need of assistance to a specific work opportunity pursuant to Section 16 Paragraph 3 Sentence 2 of the German Social Code, Book II (SGB II) as regulated in Section 16d Sentence 2 of the SGB II as of January 1, 2009, this regularly constitutes an administrative act within the meaning of Section 31 Sentence 1 of the German Social Code, Book X (SGB X), according to the overall context of the legal regulations.
The requirements relating to individual cases for such work opportunities, which systematically belong to the catalog of integration services (cf. Section 14 SGB II), and the resulting obligations of the person in need of assistance are not sufficiently defined by the relevant legal text in either Section 2 Paragraph 1 Sentence 2 SGB II ("Principle of Demanding"), Section 3 Paragraph 1 SGB II ("Principles of Benefits"), or Sections 14 and 16 Paragraph 3 SGB II without further implementation. Rather, the legislator provides a broad framework for the deployment of employable persons receiving assistance in additional work that is in the public interest, which must be filled in on a case-by-case basis by stipulations regarding the specific content of the work opportunity and the provision of the additional expense allowance (Voelzke in Hauck/Noftz, SGB II, § 16d SGB II, marginal note 53 f, as of 12/2010, Luthe in jurisPR-SozR 27/2005 note 1; Mrozynski, Basic Income Support and Social Assistance, II.4 marginal note 25, as of February 1, 2009).
In any case, if no specific details regarding a work opportunity have been provided in an integration agreement (or an administrative act replacing it), these stipulations are required "subsequently," which – unless supplementary agreements are concluded between the basic income support provider and the person in need of assistance – are made by unilateral regulation of the provider. Unlike, for example, an offer of employment within the meaning of Section 144 Paragraph 1 Sentence 2 No. 2 of the German Social Code, Book III (see in this respect Federal Social Court, decision of October 27, 2003 – B 7 AL 82/03 B) or an offer of a training measure pursuant to Section 48 of the German Social Code, Book III (see Federal Social Court judgment of January 19, 2005 – B 11a/11 AL 39/04 R – SozR 4-1300 § 63 No. 2), the assignment to a work opportunity does not regularly consist solely of providing proof of an opportunity to conclude a contract with a measure provider and does not merely constitute preparatory administrative actions that precede an actual substantive decision (such as a sanction). Rather, the allocation definitively determines for the person in need of assistance which services are provided for their integration into work, so that they can make their decision on participation in the measure on this basis (BSG, Judgment of 16.12.2008 – B 4 AS 60/07 R – BSGE102,201 =SozR 4 – 4200 § 16 No. 4, RdNr 3l).
Since the allocation also determines the granting of integration benefits (see Section 3 Paragraph 1 SGB II), it is irrelevant for administrative practice that the behavior expected of the person in need of assistance cannot be enforced by the agency (Luthe in jurisPR – SozR 27/2005 Note 1).
The plaintiff argues, with regard to the illegality of the allocation notice, primarily that the measure lacks the additionality required by Section 16 Paragraph 3 Sentence 2 of the German Social Code, Book II (SGB II). The Social Court (SG) completely failed to conduct the necessary review based on Section 261 Paragraph 2 Sentence 1 of the SGB III (see Federal Social Court (BSG) judgment of December 16, 2008 – B 4 AS 60/07 R – BSGE 102, 201 = SozR 4-4200 § 16 No. 4, Paragraph 27), proceeding from its legal opinion that no contestable administrative act existed. The Higher Social Court (LSG) will have to rectify this.
The sole legal basis for the plaintiff's claim for performance can be a public-law claim for reimbursement as an independent legal institution recognized under customary law and derived from general principles of administrative law.
This claim compensates for a financial situation that is not in accordance with the law and grants the claimant a right to the return of what was obtained if a payment was made without legal basis or without any other unjustified transfer of assets (see, in this regard, only the Federal Social Court's judgment of September 29, 2009 – B 8 SO 11/08 R – FEVS 61, 385 = juris para. 11 and, fundamentally, the Federal Social Court's decision BSGE 16, 151 = SozR No. 1 to Section 28 BVG). Its prerequisites and legal consequences correspond, insofar as they are not regulated by special statute, to those of the civil law
claim for unjust enrichment (see Federal Social Court, ibid., FEVS 61, 385, referring to Federal Administrative Court decisions 711, 85, 88, 87, 169, 172f, 100, 56, 59, 112, 351, 353f).
Such a claim is possible under the German Social Code, Book II (SGB II), if the person in need of assistance has performed work after being assigned to a work opportunity in return for additional expense compensation, which proves to be without legal basis (see the Senate's judgment of April 13, 2011 – B 14 AS 98/10 R – scheduled for publication in BSGE and SozR).
Source: Tacheles – Reader
Note: See also the post on the blog of attorney L. Zimmermann
Federal Social Court (BSG) judgment of April 13, 2011, – B 14 AS 98/10 R –
sozialrechtsexperte.blogspot.com
2.2 – BSG, Judgment of 13.04.2011, – B 14 AS 85/09 R-
The Federal Social Court specifies how the reasonable costs of accommodation for Berlin Hartz IV recipients are to be determined using the Berlin rent index.
In its judgment of April 13, 2011, – B 14 AS 85/09 R – the Federal Social Court ruled that the entire urban area of Berlin must be used as the relevant comparison area when determining the appropriate housing costs.
Specifically, the Federal Social Court (BSG) ruled as follows when determining the appropriate housing costs based on the Berlin rent index:
Housing costs are reimbursed in the amount of the actual expenses, provided they are reasonable. The assessment of accommodation costs must be carried out separately from the costs of heating (see, for example, BSGE 104, 41 = SozR 4-4200 § 22 No. 23).
The appropriateness of housing costs (KdU) must be determined in a multi-stage process based on the so-called product theory: First, the appropriate apartment size must be determined. Then, it must be established whether the rented apartment corresponds to the product of appropriate living space and standard, as reflected in the rent. The benchmark in this respect is the spatial conditions at the place of residence of the person in need of assistance, whereby the local conditions of the housing market must be ascertained and taken into account. As an indeterminate legal term, the concept of appropriateness is subject to unrestricted judicial review. In the event of a dispute, the concept underlying the determination of costs must therefore be fully reviewed by the courts, and, if necessary, supplemented by their own investigations.
For a two-person household, an apartment size of 60 square meters is considered appropriate. When determining appropriate living space, the recognized living space size for eligible residents in social housing is the benchmark (established case law since BSGE 97, 254 = SozR 4-4200 § 22 No. 3, paragraph 19 in each case). Living space of up to 50 square meters may be allocated to single persons and up to 60 square meters to two-person households (see also BSG judgment of October 19, 2010 – B 14 AS 50/10 R, SozR 4-4200 § 22 No. 42, paragraph 22 with further references).
When determining the appropriate housing costs, the entire urban area of Berlin should be used as the relevant comparison area, because even an employee with a comparatively low income will look for a replacement apartment within the entire urban area if he cannot (or can no longer) finance an apartment he currently owns with the means available to him.
The special needs and the specific situation of the respective person in need of assistance (e.g., single parents or families with minor school-age children) are not to be taken into account when determining the (abstract-general) comparison areas, but only within the framework of the reasonableness rule of Section 22 Paragraph 1 Sentence 3 SGB II (see BSGE 102, 263 = SozR 4-4200 § 22 No. 19, each paragraph 23).
The basis for calculation must be a simple standard in the lower market segment (BSGE 97, 231 = SozR 4-4200 § 22 No. 2, each paragraph 24); the apartment must meet basic needs with regard to its furnishings, location, and building structure (BSGE 97, 254 = SozR 4-4200 § 22 No. 3, each paragraph 20). The determined appropriate reference rent or the rent ceiling must therefore be chosen so that the person in need of assistance can rent an "appropriate" apartment in the specific comparison area. According to the case law of the Federal Social Court (BSG), the rent ceiling must be determined on the basis of a coherent concept that takes these requirements into account (see BSG judgment of June 18, 2008 – B 14/7b AS 44/06 R – FEVS 60, 145).
The implementing regulations (AV-Wohnen) used by the basic income support provider to determine a reasonable price per square meter within the local comparative benchmark (of the entire city of Berlin) are not suitable for determining reasonable housing costs, because they are not based on a coherent concept that provides sufficient assurance that it reflects the current conditions of the local housing market (BSG judgment of 19.10.2010 – B 14 AS 50/10 R – SozR 4-4200 § 22 No. 42 para. 26).
Qualified rent indices within the meaning of Section 558d of the German Civil Code (<BGB> Data such as the Berlin rent index can serve as the basis for determining the reference rent pursuant to Section 22 Paragraph 1 of the German Social Code, Book II (SGB II) (see, in detail, for the Berlin rent index, Federal Social Court [BSG], loc. cit., marginal note 27 with further references). If the basic income support provider – as in Berlin – does not submit any data and/or analyses, the court must rely on such existing data (insofar as they appear suitable) when determining an appropriate reference value before reducing its duty to investigate ex officio to the determination of the "upper limit" according to the table values of Section 8 of the former Housing Benefit Act (now Section 12; possibly increased by a supplement) (see Federal Social Court [BSG], SozR 4-4200, Section 22 No. 27, marginal note 23).<Essen> ).
If conclusions relevant to basic income support are to be drawn from data of a qualified rent index, a restriction to data of specific building age categories is generally not permissible (cf. already BSGE 102, 263 = SozR 4-4200 § 22 No. 19 para. 25).<München> This does not apply – as the Senate has already explained (BSG judgment of 19 October 2010 – B 14 AS 50/10 R – SozR 4-4200 § 22 No. 42 para. 29) – to the building age categories up to 1918 and up to 1949 apartments with a particularly low level of amenities (apartments without central heating and/or without) which are still shown separately in columns 1 and 3 of the Berlin rent index.<Dusch-> Bathroom), regardless of how frequently such apartments are still available.
These values are not to be taken into account when determining a rental value relevant for basic income support, because people in need of assistance cannot generally be referred to apartments with this lowest level of amenities when looking for housing.
The calculation of an arithmetic mean from the (remaining) mean values of the building age classes as a final step in calculating a basic income-relevant net comparative rent does not meet the requirements of a mathematically and statistically comprehensible concept.
A differentiation based on apartment size is therefore necessary when using a qualified rent index because, depending on the specific characteristics of the relevant local housing market, particularly due to population and social structure and urban development, both supply and demand for smaller and larger apartments can differ considerably. Smaller apartments, in particular, often have a higher price per square meter (see BSG SozR 4-4200 § 22 No. 26 para. 18).
However, conclusions must then be drawn from the rent index values, which reflect the apartment sizes in which a replacement apartment should primarily be sought. In this case, that is the market segment of apartments between 40 and under 60 square meters. Apartments that are exactly 60 square meters are not statistically included in this segment. However, this inaccuracy is acceptable if these apartments represent the upper limit for an abstractly reasonable comparable apartment, and all other apartments up to under 90 square meters do not constitute the relevant market segment due to their size.
Furthermore, in the case of a highly differentiated rent index such as the Berlin rent index, calculating an arithmetic mean does not guarantee that the value shown actually reflects the main focus of a rent in the basic segment (see in detail BSG judgment of 19.10.2010 – B 14 AS 50/10 R – SozR 4-4200 § 22 No. 42 para. 30).
Because the values in the individual grid cells are not based on each other (in the sense of an even distribution of the rental prices shown here), arithmetic means remain subject to a high degree of randomness, especially when individual values – such as the value for new apartments built in the last 15 years – deviate significantly from the other values. Therefore, the arithmetic mean alone does not guarantee that the basic rental segment is realistically represented.
Therefore, after the appeal proceedings are reopened, the Higher Social Court (LSG) will have to examine whether further conclusions specific to basic income support can be drawn from the underlying data of the qualified rent index or other sources (regarding the fundamental suitability of the underlying data for this examination, see Federal Social Court (BSG), loc. cit., para. 31). For such evaluations, the municipal authority must be consulted primarily within the framework of its duty to cooperate (see, fundamentally, Federal Social Court (BSG), SozR 4-4200 § 22 No. 26). This applies all the more if the data used by the basic income support provider in its decision are unsuitable as a basis for decision-making, as is the case in Berlin with the AV-Wohnen (Housing Ordinance).
Further evaluations by the social security provider might reveal indications that a particular building age category is statistically significant across all districts and consistently represents a basic standard, such that this value alone (possibly increased by a surcharge) should be used. If such further conclusions cannot be drawn from the available data, it is advisable to calculate a weighted arithmetic mean based on the distribution of apartments in the respective building age categories within the overall population (see Schifferdecker/Irgang/Silbermann, Archiv für Wissenschaft und Praxis der sozialen Arbeit 2010, 28; SG Berlin Judgment of June 30, 2010 – S 174 AS 21949/07 – juris para. 46).
Such an average would at least guarantee that an individual value for a specific building age category, according to its actual frequency on the market, is incorporated into a basic income support-relevant average. It seems permissible to calculate a value based on the respective averages of the grid cells. This value defines an average apartment according to the additional features not already reflected in the grid cells of the rent index (bathroom, kitchen, apartment, building, neighborhood). Thus, the average reflects both poorly equipped apartments in desirable, modest locations and well-equipped apartments in very modest locations (e.g., on a main road). Finally, the average from the modest locations also captures poorly equipped apartments in average and good locations.
In addition to the net rent, the reasonable operating costs within the meaning of Section 556 Paragraphs 1 and 2 of the German Civil Code (BGB) in conjunction with the Ordinance on the Calculation of Living Space, on the Establishment of Operating Costs and on the Amendment of Other Ordinances (<BetrKV> from 25.11.2003, BGBl I 2346) – with the exception of heating costs – to be determined abstractly and included as a factor in the product.
In this respect, it also appears permissible to draw on existing data from operating cost overviews for the development of a concept, initially, however, on local overviews and thus on the resulting average values (see in detail BSG, loc. cit., para. 33 et seq.). Only if there are concrete indications that overviews compiled by the German Tenants' Association for the entire federal territory better reflect the local level can these be used.
juris.bundessozialgericht.de
Note: See also the post on the blog of attorney L. Zimmermann.
Will Berliners receiving social assistance under the German Social Code, Book II (SGB II), soon have to leave their neighborhoods?
sozialrechtsexperte.blogspot.com
3. Decisions of the Federal Social Court of 25 August 2011 on social assistance (SGB XII)
3.1 – Federal Social Court (BSG) judgment of 14 April 2011, B 8 SO 12/09 R –
No higher allowance pursuant to Section 82 Paragraph 3 Sentence 3 of the German Social Code, Book XII (SGB XII) for a person over 70 years of age.
The unreasonableness of employment due to his age, which HB cites as grounds for applying the regulation, is precisely the standard case under the German Social Code, Book XII (SGB XII), which provides assistance for subsistence (Chapters 3 and 4 of the SGB XII) only for those over 65 and those unable to work. For the special social assistance benefits of Chapters 5 to 9, which are also available to other persons in need, the provisions of Sections 85 et seq. of the SGB XII apply to the crediting of income.
A higher allowance under Section 82 Paragraph 3 Sentence 3 of the German Social Code, Book XII (SGB XII) is not justified. According to this provision, a different amount may be deducted from income in justified cases, deviating from Paragraph 3 Sentence 1. The Senate recognized such a justified case for training allowance paid under Section 104 Paragraph 1 Number 3 in conjunction with Section 107 of the German Social Code, Book III (SGB III) – Employment Promotion –, taking into account the special situation of disabled persons in workshops for reasons of equality (BSGE 106, 62 ff., marginal note 29 ff. = SozR 4-3500 § 82 No. 6; judgment of March 23, 2010 – B 8 SO 15/08 R – marginal note 18). Furthermore, an increase in the allowance is intended to serve as additional motivation, particularly in cases of severe health or personal impairments (Hohm in Schellhorn/Schellhorn/Hohm, SGB XII, 18th ed. 2010, § 82 SGB XII para. 50; Lücking in Hauck/Noftz, SGB XII, K § 82 para. 76, as of June 2008; similarly, Brühl in Lehr- und Praxiskommentar SGB XII).<LPK-SGB XII> , 8th edition 2008, § 82 SGB XII marginal note 78).
According to the purpose and intent of the regulation, it is not permissible to grant an increased allowance for income from employment solely on the basis of age. While the function of Section 82 Paragraph 3 of the German Social Code, Book XII (SGB XII) is generally to create an incentive to take up employment (despite age or total incapacity for work), to increase work performance, and to maintain the willingness to work (see: BSGE 106, 62 ff., marginal note 35 = SozR 4-3500 § 82 No. 6; Lücking, ibid., K § 82, marginal note 76, as of June 2008; Brühl, ibid., § 82 SGB XII, marginal note 75). Paragraph 3, sentence 3 itself is intended only to give the aid provider the possibility of reacting flexibly to the standardized regulation of paragraph 3, sentence 1 (Bundestag printed matter 15/1514, p. 65 on § 77 of the draft; Wahrendorf in Grube/Wahrendorf, SGB XII, 3rd ed. 2010, § 82 SGB XII marginal no. 88; Adolph in Linhart/Adolph, SGB II/SGB XII/Asylum Seekers' Benefits Act, § 82 SGB XII marginal no. 82 f, as of May 2007; Schmidt in juris PraxisKommentar SGB XII).<jurisPK-SGB XII> § 82 SGB XII RdNr 68 SGB XII). A different allowance is therefore only permissible within the framework of a discretionary decision (BSG, ibid., RdNr 35) if no standard case applies.
However, the plaintiff's situation corresponds precisely to the standard case under Section 82 Paragraph 3 Sentence 1 of the German Social Code, Book XII (SGB XII). Unlike the previous Federal Social Assistance Act (BSHG) – Section 76 Paragraph 2a (deduction in an appropriate amount for income of certain persons) – the SGB XII, with regard to subsistence assistance, only covers persons who are fully incapacitated for work, i.e., who cannot work at least three hours a day under the conditions of the general labor market (Section 21 Paragraph 1 Sentence 1 SGB XII in conjunction with Section 7 of the German Social Code, Book Two – Basic Income Support for Job Seekers –).<SGB II> ), or are not yet, or – like the plaintiff – are no longer of working age (cf. Hohm, loc. cit., § 82 SGB XII marginal note 47; Schmidt, loc. cit., marginal note 66; Eicher in jurisPK-SGB XII, § 21 SGB XII marginal notes 1, 9, 15 et seq.). It may be doubted whether the example of a student's holiday job in the explanatory memorandum to the law (BT-Drucks 15/1514, p. 65 on § 77 of the draft) is sufficient to establish a justified case within the meaning of § 82 para. 3 sentence 3 SGB XII; since students are likely to regularly fall under the SGB II as members of a household receiving benefits.
The example in the explanatory memorandum to the law does not, in any case, justify the interpretation of the provision desired by the plaintiff for his case. Applying Section 82 Paragraph 3 Sentence 3 of the German Social Code, Book XII (SGB XII) generally to income from employment of persons over 65 without additional circumstances would be fundamentally inconsistent with the system. Rather, with the reform of social assistance law effective January 1, 2005, the legislature opted for a percentage-based income exemption as a simple, practical, and uniform solution for the standard case (see Bundestag printed matter 15/1514, p. 65 regarding Section 77 Paragraph 3).
4. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
4.1 – Bavarian State Social Court decision of 05.07.2011. – L 7 AS 334/11 B PKH –
There is no evidence to suggest that the new standard needs law is unconstitutional.
As can be seen from the explanatory memorandum to the Standard Needs Assessment Act (Bundestag printed matter 17/3404, pp. 42 ff.), the legislature adhered to the requirements of the Federal Constitutional Court's ruling of February 9, 2010. Based on a special analysis of the 2008 Income and Expenditure Survey (EVS), the needs of adults and children were determined in detail. Deductions for individual consumption items were either no longer applied (e.g., for clothing) or corrected through special analyses (e.g., the share of electricity for heating, local public transport, telephone costs). The adjustment of standard needs was linked to price developments and net wages (see Section 20 Paragraph 5 of the German Social Code, Book II), instead of to pension developments. Separate legal bases for entitlement were established for benefits for education and participation for children and young people (Sections 28, 29 of the German Social Code, Book II). For the additional needs in atypical hardship cases, a legal basis for entitlement was already established in Section 21 Paragraph 6 of the German Social Code, Book II (SGB II) by the law of May 27, 2010 (Federal Law Gazette I, p. 1706), which complies with the requirements of the Federal Constitutional Court.
Individual aspects of the determination of the new standard benefit rate are subject to differing political assessments, such as the delimitation of the lower income bracket according to Section 4 of the Standard Benefit Rate Determination Act (RBEG), which specifies which reference households from the Income and Expenditure Survey (EVS) are used for calculating the needs. However, this should not be confused with the question of whether the regulation is unconstitutional. In this regard, the Federal Constitutional Court (loc. cit., para. 168) has ruled that the choice of the reference group must be based on objective considerations. The appellate court cannot identify any extraneous determination of the reference group.
Furthermore, the needs assessments in the RBEG (Standard Benefits Act) were initially based on the assumption that hot water costs would be covered by the standard benefit. Only in the final stage of the legislative process were hot water costs reclassified as part of housing costs (see Section 20 Paragraph 1 Sentence 1, Section 21 Paragraph 7 and Section 77 Paragraph 6 of the German Social Code, Book II). However, the standard benefit rates were not adjusted accordingly.
Overall, it can be concluded that there is no prospect of success for a lawsuit against the new standard benefit rates. Likewise, there are no discernible grounds for referring the law on the new standard benefit rates to the Federal Constitutional Court.
sozialgerichtsbarkeit.de
Note: See also the post on the blog of attorney L. Zimmermann.
Hartz IV standard rates – and yet they are unconstitutional.
sozialrechtsexperte.blogspot.com
4.2 – Bavarian State Social Court decision of 21 July 2011, – L 11 AS 430/11 B ER –
Decisions rejecting applications, even in preliminary injunction proceedings, become legally binding when no further appeal is possible, and a renewed application is inadmissible if it merely repeats the rejected application – with unchanged factual and legal circumstances (see decision of the Senate of 18 March 2009 – L 11 AS 125/09 ER; Keller in Meyer-Ladewig/Keller/Leitherer, SGG, 9th edition, § 86b, marginal note 45a).
4.3 – North Rhine-Westphalia State Social Court, decision of 05.09.2011, – L 19 AS 1304/11 B –
Monthly private withdrawals must be adjusted by the allowance according to § 11b SGB II in the case of self-employment.
The Senate has already decided (decision of 01.02.2008 – L 19 B 128/07 AS ER) that private withdrawals are eligible for consideration insofar as the withdrawals are made from current annual income.
For the purpose of determining the profit for the current year, it makes no difference whether the income remains with the business assets until the end of the year and is then taken into account as profit in the context of the tax assessment, or whether it is withdrawn beforehand and must be added to the profit via Section 4 Paragraph 1 of the Income Tax Act (EStG).
Only if a corresponding profit has remained with the business in previous years and constitutes its assets, is the private withdrawal merely a consumption of assets and not to be attributed to the profit (cf. BSG SozR 2200, § 180 No. 19 p. 61; see Geiger, Die Anrechnung von Einkommen Selbständiger in ZSFH/SGB 2009, p. 9).
Section 11 paragraph 2 in the version applicable until 31 March 2011 (now Section 11b SGB II) stipulates that the income of self-employed persons must also be adjusted by numerous deductions before it can be used for calculating benefits (BSG, judgment of 21 June 2011 – B 4 AS 21/10 R, Rn 29).
The reason for this is not only to incentivize employment, but also to only take into account those earnings that can actually be used to secure one's livelihood when determining the amount of ALG II benefits.
The job center's service instructions stipulate in section 6.6.2, paragraph 2, that the type and scope of employment are irrelevant.
This also included income/remuneration from self-employment.
4.4 – North Rhine-Westphalia State Social Court, Judgment of 30 June 2011, – L 7 AS 79/08 –
Simply living together in an apartment does not make them partners in the sense of a marriage-like relationship, even if they jointly manage the house.
sozialrechtsexperte.blogspot.com
Note: See also the post on the blog of attorney L. Zimmermann
See also – Does the fact that a Hartz IV recipient sleeps in the same bed as an acquaintance suggest either for or against a cohabiting partnership according to § 7 para. 3 no. 3c SGB II?
sozialrechtsexperte.blogspot.com
4.5 – North Rhine-Westphalia State Social Court, Judgment of 30 June 2011, – L 7 AS 79/08 –
There is currently no supreme court ruling on the question of whether the exclusive use of individual rooms constitutes a usage agreement that restricts the use of the corresponding real part of the property and building by the co-owners.
The North Rhine-Westphalia State Social Court, in its judgment of June 30, 2011 – L 7 AS 79/08 – appeal allowed, takes the view that in the case of co-ownership, the restrictions on property rights must also be taken into account.
Thus, each co-owner's right of use, including the right to residential use, is restricted by the rights of the other co-owners.
Therefore, when assessing the size of the property, the entire building must be considered if a co-owner is not prevented by other co-owners from living on the entire property.
Only if the residence of a co-owner is limited by the use of the property by the other co-owners in proportion to their respective shares to a real part of the land or building corresponding to their ideal share of co-ownership, can the assessment of whether the jointly owned house and land is appropriate be based on the part of the property used as a residence on the basis of the share of co-ownership (Federal Administrative Court, judgment of 25 June 1992, file no.: 5 C 19/89, para. 12; Federal Social Court, judgment of 30 May 1990, file no.: 11 RAr 33/88, para. 30, judgment of 17 December 2002, file no.: B 7 AL 126/01 R, para. 36).
This is the case here. According to the list submitted by the plaintiff in the administrative proceedings, the living spaces are divided between her and the witness; only the hallways, the storage room, and the kitchen are shared as utility rooms. Both the plaintiff and the witness can access their respective rooms without having to cross the rooms belonging to the co-owner.
The living space to be taken into account for the plaintiff amounts to 75.9 square meters and is therefore even below the size of 90 square meters considered appropriate for single-family homes according to the case law of the Federal Social Court (BSG, judgments of 16 May 2007, file no.: B 11b AS 37/06 R, para. 25 et seq.; 7 November 2006, file no.: B 7b AS 2/05 R, para. 17 et seq.; 7 November 2006, B 7b AS 2/05 R, para. 22).
4.6 – North Rhine-Westphalia State Social Court, Judgment of 16 June 2011 – L 7 AS 4/08 –
No higher individual electricity costs according to the German Social Code, Book II (SGB II) – Regarding the entitlement to additional needs for disability and the "G" marker – Clothing-related additional needs in case of increased trouser wear – Care costs are not to be taken into account as reducing income if the care was not necessary to generate the maintenance income.
The addition of the need for "household energy" to Section 20 Paragraph 1 of the German Social Code, Book II (SGB II) does not constitute a substantive change to the scope of the standard benefit – the addition was made merely for clarification, so that even for the period before the amendment came into force on August 1, 2006, higher individual electricity costs are not to be provided under the SGB II (Federal Social Court, February 19, 2009 – B 4 AS 48/08 R).
Orthopedic aids (such as rollators) are part of the medical rehabilitation aids listed in Sections 26 et seq., 31 of the German Social Code, Book IX (SGB IX), which have not been included in the chain of references in Section 21 Paragraph 4 of the German Social Code, Book II (SGB II)
Assistance that is not provided as vocational integration measures relating to working life does not constitute other assistance within the meaning of Section 21 Paragraph 4 Sentence 1 of the German Social Code, Book II (BSG of 15 December 2010 – B 14 AS 44/09 R).
The provisions of Section 28 Paragraph 1 Sentence 3 No. 4 SGB II or Section 30 Paragraph 1 No. 2 SGB XII limit their validity to persons incapable of working.
An expansion of the circle of those entitled to benefits by way of analogy has been rejected by the highest court, and a violation of Article 3 Paragraph 1 of the Basic Law due to the different treatment of employable and unemployable persons in need of assistance has been denied (Federal Social Court judgments of 21 December 2009 – B 14 AS 42/08 R – and of 18 February 2010 – B 4 AS 29/09 R -).
Additional clothing-related expenses resulting from increased wear and tear on trousers due to existing disability-related susceptibility to falls do not give rise to a claim under Section 73 of the German Social Code, Book XII (SGB XII).
Such a need, insofar as it is quite comparable to the situation existing in the plaintiff's case, is recognized, for example, if increased wear and tear of laundry occurs in the case of so-called C-leg care (BSG of 15.12.2010 – B 14 AS 44/09 R).
The plaintiff's claimed increase in needs, amounting to a maximum of €160 per year, remains within the limits that can be covered by the standard benefit. An additional monthly burden of just under €14 does not yet exceed the de minimis threshold.
The Federal Social Court (BSG) has ruled that regularly occurring costs of EUR 20.45 exceed the de minimis threshold (BSG judgment of 19.08.2010 – B 14 AS 13/10 R), but there are also considerations to set the limit at 10% of the standard benefit (Düring in Gagel, Commentary on the SGB II, § 21 Rn. 47).
To generate the maintenance income, the childcare provided to the son at the all-day school was not necessary. According to the plaintiff's argument, it was also not necessary to provide her with access to the labor market, as stipulated by the German Social Code, Book II (SGB II). The decisive factor for the childcare was the son's behavioral problems resulting from his ADHD, which necessitated professionally trained care.
The Federal Social Court (BSG) has ruled on childcare costs, stating that such expenses can generally be deducted from the income to be considered. However, a deduction as "business expenses" is only possible if the childcare expenses are directly and directly related to the employment (BSG 9.11.2010 – B 4 AS 7/10 R).
4.7 – North Rhine-Westphalia State Social Court, decision of 05.09.2011, – L 19 AS 2219/10 B –
The prerequisite for granting an additional allowance under Section 21 Paragraph 5 of the German Social Code, Book II (SGB II) is a health impairment that requires a diet whose costs are more extensive than those of persons without this impairment (Federal Social Court judgment of 10 May 2011 – B 4 AS 100/10 R, paragraphs 16f).
Regardless of whether the recommendations of the German Association for Public and Private Welfare of October 1, 2008 (hereinafter: recommendations for additional needs) are to be regarded as anticipated expert opinions (cf. summary of the state of opinion in the Federal Social Court judgment of May 10, 2011 – B 4 AS 100/10 R, para. 23), the recommendations for additional needs can serve as a guideline and further investigations in individual cases are only necessary if special circumstances, in particular needs deviating from the recommendations, are substantiated (Federal Social Court judgment of May 10, 2011 – B 4 AS 100/10 R, para. 23).
The diet required by the additional needs recommendations for type 2 diabetes, consisting of a so-called "full diet," does not fall under Section 21 Paragraph 5 of the German Social Code, Book II (SGB II), as it is not a medical diet, which is the aim of the provision, but rather a way of eating that refers to the ideal of a healthy person. The full diet must be covered by the standard benefit, which is a lump sum. Section 21 Paragraph 5 of the SGB II therefore does not constitute a catch-all provision (Federal Social Court judgment of May 10, 2011 – B 4 AS 100/10 R, paragraphs 25, 26).
sozialgerichtsbarkeit.de
Note: See also the post on the blog of attorney L. Zimmermann
The current recommendations of the German Association for Public and Private Welfare of October 1, 2008, do not negate the fundamental obligation of the administration and the courts of the social jurisdiction to investigate the specific circumstances of each case ex officio (§ 20 SGB X or § 103 SGG).
sozialrechtsexperte.blogspot.com
4.8 – North Rhine-Westphalia State Social Court, decision of 05.09.2011, – L 19 AS 205/11 B –
An authority must reimburse the expenses necessary for the appropriate pursuit or defense of legal rights in accordance with Section 63 Paragraph 1 Sentence 1 of the German Social Code, Book X (SGB X), if the objection is successful.
This is the case if there is a causal link in the legal sense between the legal remedy and the favorable decision of the authority. An objection is not always successful simply because a favorable decision is issued after the objection has been lodged, i.e., if the adverse administrative act, the affected party's objection to it, and a "granting" administrative act occur in chronological order. Rather, it is necessary that a causal link in the legal sense exists between the lodging of the legal remedy and the favorable decision of the authority (Federal Social Court judgments of October 13, 2010 – B 6 KA 29/09 R = juris para. 16 with further references to case law, of October 20, 2010 – B 13 R 15/10 R, para. 30, and of July 21, 1992 – 4 RA 20/91 –, para. 19).
The necessity of retaining a lawyer is to be assessed based on whether an appellant could reasonably consider it necessary to be supported by a lawyer in the preliminary proceedings. This is not judged from the appellant's subjective perspective, but from the perspective of a reasonable party who strives to keep costs as low as possible. The decisive factor is whether, from the standpoint of a reasonable person without specialized legal knowledge, retaining legal counsel would have been advisable in the given circumstances. The relevant point in time is when the action incurring expenses was undertaken (see Federal Social Court judgments of October 20, 2010 – B 13 R 15/10 R, para. 25 and of November 20, 2001 – B 1 KR 21/00 R, para. 16).
4.9 – State Social Court of Rhineland-Palatinate, decision of 30.08.2011, – L 6 AS 402/11 B ER –
Section 199 para. 2 SGG does not apply to decisions by which the Social Court has ordered the suspensive effect of an appeal.
Pursuant to Section 199 Paragraph 2 Sentence 1 of the Social Court Act (SGG), the presiding judge of the court that has to decide on the appeal may suspend enforcement by means of a preliminary injunction, insofar as an appeal does not have suspensive effect. Therefore, the presiding judge of the appellate court decides on the application pursuant to Section 199 Paragraph 2 Sentence 1 of the Social Court Act (SGG).
The respondent's application for a stay of execution of the Social Court's decision is inadmissible. Section 199(2) of the Social Courts Act (SGG) is neither directly nor analogously applicable in this case. This provision governs the stay of execution based on an enforceable title. According to Section 199(1)(2) SGG, enforceable titles include, among other things, preliminary injunctions. However, not every court decision is enforceable (Ruppelt in Hennig, Commentary on the SGG, Section 199, marginal note 5 et seq.).
Thus, declaratory judgments take effect without being enforceable (BSG E27, 31). Similarly, the order granting suspensive effect to an objection pursuant to Section 86b Paragraph 1 Sentence 1 No. 2 of the Social Court Act (SGG) has a declaratory character and is therefore not an enforceable title within the meaning of the aforementioned provision (Adolf in Hennig § 86b marginal note 59).
The granting of suspensive effect to an objection binds the parties until the main proceedings become final (Keller in Mayer-Ladewig, Commentary on the Social Court Act (SGG) § 86b, marginal note 12). Only the court hearing the main proceedings has the power to amend a decision pursuant to § 86b para. 1 sentence 4 SGG. Therefore, a corresponding application of § 199 para. 2 SGG in the sense of a suspensive effect of the respondent's appeal against the Social Court's decision is also precluded.
Note: See also the decision of the Rhineland-Palatinate State Social Court of 26 January 2011, – L 6 AS 616/10 B ER –
One-month period for enforcing preliminary injunctions also applies to benefits under Book II of the German Social Code (SGB II).
4.10 – State Social Court of Saxony-Anhalt, decision of 16 August 2011, – L 5 AS 65/11 B –
The argument that an assurance was not required because the new apartment meets "the basic criteria of the approval requirements" is flawed.
Section 22, paragraph 1, sentence 2 of the German Social Code, Book II (SGB II) explicitly refers to an increase in reasonable housing costs (KdU) after a move. This means that every move, even if the new rent is within the reasonable limits, requires prior approval or proof of necessity if the new rent is higher. The purpose of this provision is to prevent unnecessary moves to apartments with rents up to the reasonable housing cost limit (see Federal Social Court (BSG), judgment of June 1, 2010, B 4 AS 60/09 R (21)).
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
5. Single parenting (especially of school-age children) can lead to a limited reasonableness of changing residence.
Single parenting (especially of school-age children) can lead to a limited reasonableness of changing residence (cf. BSGE 102, 263 = SozR 4-4200 § 22 No. 19, para. 35), confirmed by the judgment of the BSG of 13.4.2011,- B 14 AS 85/09 R -.
In its judgment of April 13, 2011, – B 14 AS 85/09 R – the Federal Social Court ruled that the entire urban area of Berlin must be used as the relevant comparison area when determining the appropriate housing costs.
The special needs and the specific situation of the respective person in need of assistance (e.g., single parents or families with minor school-age children) are not to be taken into account when determining the (abstract-general) comparison areas, but only within the framework of the reasonableness rule of Section 22 Paragraph 1 Sentence 3 SGB II (see BSGE 102, 263 = SozR 4-4200 § 22 No. 19, each paragraph 23).
The lower court's assessment that a change of the immediate caregivers (especially the childminder) would not have been necessary had the plaintiffs moved to a more affordable (and primarily smaller) apartment in the area was not challenged by them in the appeal proceedings. They have so far presented nothing that could contradict the Higher Social Court's finding that a move to a more distant part of town is not necessary to rent an affordable apartment.
A move across nearby district borders is in itself not a reason to consider it unreasonable; nor is the immediate social environment necessarily lost as a result.
Note: According to the latest rulings of the Federal Social Court (BSG), when is a Hartz IV recipient not required to move? What reasons do not preclude a move?
sozialrechtsexperte.blogspot.com
Author of the legal case ticker: Willi 2 from Tacheles
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
