1. Decision of the Federal Social Court of 07.07.2011 on basic income support for job seekers (SGB II)
1.1 – BSG, Judgment of 07.07.2011, – B 14 AS 154/10 R –
Hartz IV recipients can claim higher benefits for 2010 under the German Social Code, Book II (SGB II).
A heating cost surcharge must be paid in full, because a hot water bill according to the Heating Costs Ordinance does not allow for a concrete recording of hot water costs.
Although a meter in the tenant's apartment measures the cubic meters of hot water consumed, it does not measure the amount of energy required to heat that water. The calculation performed according to the Heating Costs Ordinance does not represent a concrete calculation of the energy consumed, but rather uses an approximation based on empirical data to determine the tenant's share of the total energy consumption. This calculation considers both individual consumption and the consumption based on the tenant's share of the total costs in terms of floor space.
This does not constitute a concrete recording of the hot water preparation costs (see also Brehm/Schifferdecker, Die Warmwasserpauschale im Regelsatz des SGB II, SGb 2010, 331).
It is worth noting that the costs for hot water also include costs for water consumption, which, according to § 22 SGB II, is part of the accommodation costs.
Additional charges arising after prior monthly advance payments for operating and heating costs are considered a one-time payment and are part of the current needs in the month they are due. This is because, according to Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), the actual expenses for accommodation and heating in rented apartments include, if contractually agreed, the advance payments owed to the landlord for operating and heating costs.
Insofar as refunds arise in the context of the settlement of these advance payments, these do not reduce the expenses in the preceding periods, but only the current ones (cf. the express legal provision in Section 22 Paragraph 1 Sentence 4 of the German Social Code, Book II, which came into force on 1 August 2006, now in Section 22 Paragraph 3 of the German Social Code, Book II, as amended by the RBEG).
Conversely, if, after accounting for the actual operating and heating costs, the landlord demands additional payments, such payments once owed are considered part of the current needs in the month they are due and constitute a change in the actual circumstances, which must be taken into account in accordance with Section 48 of the Tenth Book of the Social Code (Federal Social Court judgment of July 2, 2009 – B 14 AS 36/08 R – BSGE 104, 41 = SozR 4-4200 § 22 No. 23, each at paragraph 16; Federal Social Court judgment of March 22, 2010 – B 4 AS 62/09 R – SozR 4-4200 § 22 No. 38 at paragraph 13).
Although the costs of hot water preparation were included in the standard benefit under Section 20 of the German Social Code, Book II (SGB II) for the entire year 2006, to which the back payment relates, even though household energy was only explicitly included in the newly worded Section 20 Paragraph 1 of the SGB II by the GSiFoG (see explanatory memorandum to the GSiFoG: BT-Drucks 16/1410 p. 23).
Because if the costs of hot water preparation were fully covered as part of the benefits for accommodation and heating to be provided according to actual expenses pursuant to Section 22 of the German Social Code, Book II (SGB II), this would lead to an unlawful double benefit (Federal Social Court judgment of 27 February 2008 – B 14/11b AS 15/07 R – BSGE 100, 94 = SozR 4-4200 § 22 No. 5, paragraphs 20 et seq.; Federal Social Court judgment of 19 February 2009 – B 4 AS 48/08 R – BSGE 102, 274 = SozR 4-4200 § 22 No. 18, paragraph 24).
To avoid such double payments for hot water costs, these costs must be deducted from the costs of accommodation and heating. The Senate did this in its judgment of February 27, 2008, and determined the portion of the various standard benefits allocated for hot water (ibid., para. 25 et seq.). For the standard benefit of €345 relevant in the present case, this amounts to €6.22. No fundamental objections have subsequently been raised against the derivation of this amount (Federal Social Court judgment of February 24, 2011 – B 14 AS 52/09 R – para. 16); rather, these amounts have been continued in legal literature for subsequent periods (Brehm/Schifferdecker, SGb 2010, 331 et seq.).
To the extent that the job center believes that, due to the hot water meter located in the plaintiff's apartment, consumption is recorded separately and, in conjunction with the billing carried out according to the Heating Costs Ordinance, the requirements for separate recording of the costs of hot water preparation are met according to the case law of the Federal Social Court, this cannot be accepted.
Although, according to the fundamental decisions of the Federal Social Court (judgment of 27 February 2008 – B 14/11b AS 15/07 R – BSGE 100, 94 = SozR 4-4200 § 22 No. 5, each at paragraph 27; judgment of 19 February 2009 – B 4 AS 98/08 R – BSGE 102, 274 = SozR 4-4200 § 22 No. 18, each at paragraph 25), the question of a flat-rate charge for the costs of hot water preparation does not arise if the costs of hot water preparation are recorded separately.
However, according to these rulings, this requires not only technical equipment for determining hot water consumption – as in the present case – but also for the costs of hot water preparation, i.e., the costs of the energy consumption included in the standard benefit. Only if the person in need of assistance can manage these costs independently is it justified to require them to bear these costs within the framework of their standard benefit.
These conditions are not met in the present case because the costs of hot water preparation are partly based on hot water consumption, but not on the relevant energy consumption.
Furthermore, they are also allocated according to the living and usable area, so the plaintiff can only partially influence the costs through his behavior.
This is evidenced by the landlord's statement of account, according to which €140.44 of the hot water costs are allocated to area-based basic costs, and only €67.31 to consumption costs that the plaintiff can control to some extent through water consumption. Contrary to the appellant's arguments, a correct statement of account according to the Heating Costs Ordinance (in the version of January 20, 1989, Federal Law Gazette I 115) does not fulfill the requirement for the separate recording of hot water costs, as is evident from Section 8 of the Ordinance, which remains in effect. Section 8 stipulates that at least 50% and at most 70% of the costs of the central hot water supply system must be allocated according to recorded consumption, and the remaining costs according to living space and usable area.
Note: See also the post on the blog of attorney L. Zimmermann
Social law experts say the level of Hartz IV benefits for hot water is insufficient – but the legislature argues that children don't need that much water.
sozialrechtsexperte.blogspot.com
Note from social worker Willi 2:
Federal Social Court (BSG) judgment of April 6, 2011, – B 4 AS 16/10 R – (point 11)
sozialrechtsexperte.blogspot.com
2. Decision of the Federal Social Court of 06.05.2011 on basic income support for job seekers (SGB II)
2.1 – BSG, Judgment of 26.05.2011, – B 14 AS 132/10 R –
Bremen – Hartz IV recipients are left empty-handed, as they may have been entitled to higher housing costs in 2005.
The disputed 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 of the German Social Code, Book II (SGB II), which was not amended in this respect from January 1, 2005, until the date of the decision). The concept of "reasonableness," as an indeterminate legal term, is subject to unrestricted judicial review (established case law; see, for example, Federal Social Court (BSG) judgment of February 19, 2009 – B 4 AS 30/08 R – BSGE 102, 263 = SozR 4-4200 § 22 No. 19 (Munich), 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 regulation with the use of the plural benefit and from the case law of the Federal Social Court (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 – SozR 4-4200 § 22 No. 42 (Berlin) para. 18).
To determine the accommodation benefit to which the person who is entitled to benefits in principle is entitled, several steps must be taken: First, the appropriate accommodation benefit must be determined abstractly in a multi-stage process based on the so-called product theory.
Then, if the beneficiary raises objections in this regard, it must be examined whether such an abstractly appropriate apartment could actually have been rented in the relevant local comparison area.
To the extent that the beneficiary's accommodation expenses exceed the abstractly reasonable accommodation allowance, the former must be taken into account as long as it is impossible or unreasonable for them to reduce these expenses by moving, subletting, or otherwise, generally for a maximum of six months (Section 22 Paragraph 1 Sentence 2 of the German Social Code, Book II, old version, which became Sentence 3 without substantive change upon the introduction of the new Sentence 2 by the Act to Further Develop Basic Income Support for Job Seekers of July 20, 2006, Federal Law Gazette I 1706; see section 3 for this requirement; cf. regarding all requirements, among others, Federal Social Court judgment of November 7, 2006 – B 7b AS 18/06 R – BSGE 97, 254 = SozR 4-4200 § 22 No. 3, paragraphs 19 et seq.; Federal Social Court judgment of February 19, 2009 – B 4 AS 30/08). R – BSGE 102, 263 = SozR 4-4200 § 22 No. 19 (Munich), each paragraph 12 et seq.; BSG of 20 August 2009 – B 14 AS 65/08 R – SozR 4-4200 § 22 No. 26; BSG of 22 September 2009 – B 4 AS 18/09 R – BSGE 104, 192 = SozR 4-4200 § 22 No. 30; BSG of 17 December 2009 – B 4 AS 27/09 R – SozR 4-4200 § 22 No. 27 (Essen); BSG of 17 December 2009 – B 4 AS 50/09 R – SozR 4-4200 § 22 No. 29; most recently: BSG of 19.10.2010 – B 14 AS 50/10 R – SozR 4-4200 § 22 No. 42 (Berlin) RdNr 20 ff).
The appropriate apartment size for single people in Bremen is 48 square meters.
To determine the appropriate living space, the standard sizes for eligible residents in social housing are to be used as a guideline (established case law since the Federal Social Court's decision of November 7, 2006 – B 7b AS 18/06 R – BSGE 97, 254 = SozR 4-4200 § 22 No. 3, paragraph 19 in each case; most recently, the Federal Social Court's decision of October 19, 2010 – B 14 AS 50/10 R – SozR 4-4200 § 22 No. 42 (Berlin)). With regard to the allocation of subsidized rental housing, Section 27 Paragraph 4 and Section 10 of the Act on Social Housing Promotion of September 13, 2001 (Federal Law Gazette I 2376, "Housing Promotion Act", hereinafter: WoFG) refer to the "provisions of the respective state" concerning the relevant apartment size.
According to the current findings of the Higher Administrative Court, the relevant local comparison area for the plaintiff cannot be limited to the Bremen-West city district.
According to the Federal Social Court's (BSG) jurisprudence, the starting point for determining the relevant comparison area is the place of residence of the benefit recipient. The comparison area must encompass a sufficiently large residential area to offer a corresponding supply of housing and to enable the necessary abstract assessments. Furthermore, it must, due to its spatial proximity, its infrastructure, and in particular its transport connections, constitute a generally homogeneous living and residential area. The BSG has considered the cities of Munich, with approximately 1.36 million inhabitants (BSG, judgment of February 19, 2009 – B 4 AS 30/08 R – BSGE 102, 263 = SozR 4-4200 § 22 No. 19), and Berlin, with approximately 3.4 million inhabitants (BSG, judgment of October 19, 2010 – B 14 AS 50/10 R – SozR 4-4200 § 22 No. 42, para. 24), to be such comparison areas. It pointed out that restricting the program to specific districts or neighborhoods with particularly dense development and thus predominantly affordable housing carries the risk of ghettoization.
Consequently, the population of the city of Bremen does not provide a compelling reason for further subdivision of the city. On the contrary, this is contradicted by the Higher Administrative Court's finding that 77% of rental apartments in certain districts are of a low standard, potentially creating a risk of ghettoization, and by the Higher Administrative Court's further statements regarding the relevant data, which often referred to the entire city of Bremen. The Higher Social Court will have to examine whether the city of Bremen as a whole meets the criteria for a comparable area.
Regardless of the answer to the question of the relevant local comparison area (see above), the Higher Administrative Court (OVG) found that there is neither a simple nor a qualified rent index for the city of Bremen, and the defendant has also failed to establish a coherent concept for determining the rent level for a suitable apartment for single-person households. Whether corresponding figures can be derived from the GEWOS report, which contains a comprehensive survey of the rental housing stock for the entire city of Bremen, possibly in conjunction with further investigations (see, for example, the hearing of expert S and her very detailed information on the housing stock for single people in Bremen), cannot be assessed by the Senate due to a lack of further findings (see also Federal Social Court (BSG) judgment of June 18, 2008 – B 14/7b AS 44/06 R – para. 16).
Only if it is not possible to determine an appropriate net rent in this way, can the table in § 8 WoGG aF be used to determine the accommodation benefit. However, this recourse to Section 8 of the Housing Benefit Act (WoGG) does not lead to a suitable standard for determining the appropriate benefit for accommodation within the meaning of Section 22 of the German Social Code, Book II (SGB II), but only includes an upper limit of appropriateness, which is why the right-hand column in the table must also be used as a basis (Federal Social Court [BSG] judgment of November 7, 2006 – B 7b AS 10/06 R – BSGE 97, 231 = SozR 4-4200 § 22 No. 2; BSG judgment of June 18, 2008 – B 14/7b AS 44/06 R – para. 15; BSG judgment of December 17, 2009 – B 4 AS 50/09 R – SozR 4-4200 § 22 No. 29, paras. 21 f, 27).
A "mixed procedure" like the one applied by the Higher Administrative Court (OVG), which starts with values from the table according to Section 8 of the former Housing Benefit Act (WoGG aF) and adjusts them based on specific local findings to achieve a balanced relationship between demand and adequate housing stock, is problematic because it lacks a systematic determination of the appropriate net rent. For example, it remains unclear why the values in the second column from the right in the table are used instead of those in the far right or third column from the right.
Whether such an abstractly appropriate apartment could actually have been rented in the relevant local comparison area cannot be assessed due to a lack of corresponding findings (cf. BSG of 13.4.2011 – B 14 AS 106/10 R – (Freiburg)).
The Higher Administrative Court (OVG) was therefore correct in referring to the cost-reduction information already provided by the social welfare agency (BSG of 7 November 2006 – B 7b AS 10/06 R – BSGE 97, 231 = SozR 4-4200 § 22 No. 2, each at paragraph 23; BSG of 7 November 2006 – B 7b AS 18/06 R – BSGE 97, 254 = SozR 4-4200 § 22 No. 3, each at paragraph 24).
Note: See also the post on the blog of attorney L. Zimmermann
The abstract assessment of the adequacy of the accommodation allowance in Saxony cannot be carried out without taking into account the available living space.
In its judgment of May 26, 2011, – B 14 AS 86/09 R – the Federal Social Court (BSG) stated the following:
sozialrechtsexperte.blogspot.com
Note: A comment on this article by lawyer Michael Driessen
Unfortunately, this is correct due to Section 40 Paragraph 1 of the German Social Code, Book II (SGB II), because of the limitation of the retrospective review according to Section 44 of the German Social Code, Book X (SGB X).
However, this is not satisfactory. Without knowing the specific details of the underlying facts, I would, in addition to the social security claims, at least examine (this already corresponds to a lawyer's duty of care to avoid recourse claims) whether another legal basis for a claim might be applicable
For example, "unlawful act" according to § 823 II BGB in conjunction with §§ 263, 266 StGB????
And when you personally threaten the case worker with such a lawsuit, sometimes truly "miraculous" things happen…
Source: www.tacheles-socialhilfe.de
3. Decision of the Federal Social Court of 09.06.2011 on social assistance (SGB XII)
3.1 – BSG, Judgment of 09.06.2011, – B 8 SO 3/10 R-
No benefits are provided for the purchase of a television set as part of the initial furnishing of an apartment.
The Federal Social Court (BSG) ruled as follows in its judgment of June 9, 2011, – B 8 SO 3/10 R:
According to Section 31 Paragraph 1 Number 1 of the German Social Code, Book XII (SGB XII) (as amended by the Act on the Integration of Social Assistance Law into the Social Code of 27 December 2003 – Federal Law Gazette I 3022 –) in conjunction with Section 19 Paragraph 1 of the German Social Code, Book XII (SGB XII) and additionally from 1 November 2011 Section 27 of the German Social Code, Book XII (SGB XII), benefits for initial furnishings including household appliances are provided separately in cases of need.
The requirements of Section 31 Paragraph 1 Number 1 of the German Social Code Book XII (SGB XII) are not met in this case.
In this respect, the Senate concurs with the accurate statements of the 14th Senate of the Federal Social Court (BSG) regarding the identical parallel provision of Section 23 Paragraph 3 Sentence 1 No. 1 of the German Social Code, Book II (SGB II aF) (cf. Section 24 Paragraph 3 of the German Social Code, Book II (SGB II) since 1 January 2011) in the judgment of 24 February 2011 (B 14 AS 75/10 R – paragraphs 13 et seq.).
In its judgment of February 24, 2011, the 14th Senate correctly stated that there is no entitlement to a television set as part of the initial furnishing of an apartment, because the television is neither a piece of furniture nor a household appliance within the meaning of the regulation, but serves to satisfy entertainment and information needs (cf. BSG, ibid., para. 21), so that a television must be financed from the standard rate under the German Social Code, Book XII (SGB XII) or the standard benefit (or, from January 1, 2011, the standard needs benefit) under the German Social Code, Book II (SGB II).
sozialgerichtsbarkeit.de
Note: see also the post on the blog of attorney L. Zimmermann.
Court (BSG), Judgment of February 24, 2011, – B 14 AS 75/10 R –
sozialrechtsexperte.blogspot.com
4. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
4.1 – Berlin-Brandenburg State Social Court, decision of 08.08.2011, – L 5 AS 1097/11 B ER –
Hartz IV recipient has been without power since May 12, 2011 – electricity cut-off – no assumption of electricity debts
The provision in Section 22 Paragraph 8 Sentence 2 of the German Social Code, Book II (SGB II), which stipulates that debt assumption "should" occur if the factual prerequisites are met, and may only be refused in atypical cases, is not applicable in the case of an imminent or actual interruption of the electricity supply. A case of imminent homelessness within the meaning of the aforementioned provision does not exist, as the tenancy agreement is not affected by the interruption of the electricity supply.
In cases where health effects are alleged to result from a power cut, it is part of the duty of self-help for the person seeking assistance to contact the electricity supplier with reference to Section 19 Paragraph 2 Sentence 2 of the Ordinance on General Terms and Conditions for the Basic Supply of Household Customers and the Substitute Supply of Electricity from the Low-Voltage Network (Electricity Basic Supply Ordinance) of October 26, 2006 (Federal Law Gazette, p. 2391, 2395) to request the lifting of the power cut, if necessary also by seeking preliminary legal protection from the competent civil court (see also Schleswig-Holstein State Social Court, decision of May 2, 2011, L 6 AS 241/10 B ER).
Note: See also the post on the blog of attorney L. Zimmermann
Regarding the entitlement to the assumption of energy debts according to § 34 para. 1 SGB XII aF and § 22 para. 5 SGB II a. F. now § 22 para. 8 SGB II and § 36 SGB XII
Dirk Berendes* The author is a judge at the North Rhine-Westphalia State Social Court.
Source: info also 4/2008, pp. 151-154
Civil law emergency legal protection
sozialrechtsexperte.blogspot.com
4.2 – Berlin-Brandenburg State Social Court, decision of 05.09.2011, – L 5 AS 1156/11 B ER –
Only in cases of hardship can benefits be provided as loans for standard needs, accommodation and heating costs, and necessary contributions to health and long-term care insurance.
A claim for an order does not arise from the successor regulation to Section 7 Paragraph 5 Sentence 2 of the Second Book of the Social Code (SGB II), Section 27 Paragraph 4 Sentence 1 (SGB II).
Subsequently, benefits can be provided as loans for standard needs, accommodation and heating costs, and necessary contributions to health and long-term care insurance, provided that the exclusion from benefits under Section 7 Paragraph 5 of the German Social Code, Book II (SGB II) constitutes a particular hardship. A particular hardship exists if exceptional, serious, atypical, and, if possible, not self-inflicted circumstances have prevented the swift progress of training or caused other emergency situations (see in detail the judgment of the Federal Social Court [BSG] of September 6, 2007, B 14/7b AS 28/06 R, NJW 2008, p. 2285 et seq., with further references).
Such a claim has neither been presented here nor is it otherwise apparent. Rather, the fact that the applicant does not receive benefits under the Federal Training Assistance Act (BAföG) is due to the fact that, prior to commencing his studies in sports science and biology in the winter semester of 2010, he had discontinued his studies in business administration after six semesters without compelling reason (§ 7 para. 3 BAföG).
4.3 – Berlin-Brandenburg State Social Court, decision of 08.08.2011, – L 18 AS 613/11 NZB –
The decision as to whether the recipient of benefits under the German Social Code, Book II (SGB II) is entitled to higher standard benefits taking into account additional nutritional needs pursuant to Section 21 Paragraph 5 of the SGB II, does not raise any generally significant questions that have not been answered by current supreme court rulings.
In its decision of August 8, 2011, – L 18 AS 613/11 NZB – the Berlin-Brandenburg State Social Court states that
The decision as to whether the applicant is entitled to higher standard benefits (cf. regarding the separability of the benefit for accommodation and heating: Federal Social Court – BSG –, judgment of November 7, 2006 – B 7b AS 08/06 R, juris = SozR 4-4200 § 22 No. 1, each paragraph 19; according to the established case law of the BSG, an additional need pursuant to Section 21 Paragraph 5 of the German Social Code, Book II (SGB II) is not an independent subject of dispute separable from the amount of the standard benefit, but rather an item in the calculation of the standard benefit requirement: cf. only judgment of March 3, 2009 – B 4 AS 50/07 R = SozR 4-4200 § 21 No. 5; judgment of July 2, 2009 – B 14 AS 54/08 R = SozR 4-1500 § 71 No. 2; judgment of February 18, 2009 – B 14 AS 54/08 R = SozR 4-1500 § 71 No. 2; judgment of February 18, 2009 – B 14 AS 54/08 R = SozR 4-1500 § 71 No. 1) 2010 – B 4 AS 29/09 R = SozR 4-1100 Art 1 Nr 7) taking into account an additional need due to nutrition pursuant to Section 21 Paragraph 5 SGB II, does not raise any generally significant questions that have not been answered by the current highest court rulings.
According to this case law, to assess the claim under Section 21 Paragraph 5 of the German Social Code, Book II (SGB II), it must be determined whether one or more illnesses are present, whether they require a specific diet, and to what extent any additional costs may be incurred (regarding the indeterminate legal concept of the "appropriate amount," see Federal Social Court (BSG), judgment of February 27, 2008 – B 14/7b AS 64/06 R = SozR 4-4200 § 21 No. 2, paragraphs 24 and 29).
Subsequently, unless there are special circumstances of the individual case, the “Recommendations for the Granting of Dietary Allowances in Social Assistance” (hereinafter: Recommendations) of the German Association for Public and Private Welfare (DV) may be used to assess the necessity and scope (cf. BSG ibid.; BSG, Judgment of February 27, 2008 – B 14/7b AS 32/06 = SozR 4-4200 § 20 No. 6, each paragraph 39 of the judgment transcript: individual investigations if “other aspects are presented which do not allow a mechanical reliance on the recommendations”).
The recommendations can at least serve as a general guideline established in administrative practice, which normally allows for the uniform and prompt processing of claimed additional needs in the area of medical diets (see BSG, loc. cit.). Thus, the necessary clarifications of terms, which specify the legal regulations and are required for assessing the present case, have been provided in case law.
The fact that this decision only pertains to the old recommendations, which were valid until September 30, 2008, and not to the new recommendations (available at www.deutscher-verein.de/), is irrelevant, because it is self-evident that the new recommendations, which were established through a qualitatively equivalent procedure and take into account the progress of science, have replaced an outdated state of affairs (see also the decision of the Higher Social Court of Berlin-Brandenburg of December 9, 2009 – L 10 AS 1717/09 NZB – ; decision of May 3, 2011 – L 10 AS 345/11 NZB –).
Note: See also the post on the blog of attorney L. Zimmermann
North Rhine-Westphalia State Social Court, decision of September 5, 2011, – L 19 AS 2219/10 B –
sozialrechtsexperte.blogspot.com
Are the new recommendations of the German Association for Public and Private Welfare (DV) regarding additional nutritional needs to be understood as an anticipated expert opinion?
Hartz IV: Standards for determining costly nutrition
A critical analysis of the new recommendations of the German Association for Public and Private Welfare on the granting of dietary allowances in social assistance dated October 1, 2008.
Lawyer Dr. J.-F. Bruckermann and Dipl.-Ing. A. Izkowskij
sozialrechtsexperte.blogspot.com
4.4 – Berlin-Brandenburg State Social Court, decision of 31 August 2011, – L 19 AS 842/11 B ER –
The Berlin-Brandenburg Higher Social Court (LSG) reprimands the job center for violating Article 19 Paragraph 4 of the Basic Law by failing to grant preliminary legal protection in cases of partial revocation notices with retrospective effect
1. Job centers may not base the calculation of utility cost refunds on a fictitious payment date – this is unlawful
2. Granting of preliminary legal protection in the case of partial revocation decisions with retrospective effect.
The Berlin-Brandenburg State Social Court, in its decision of August 31, 2011 – L 19 AS 842/11 B ER – clearly states that the job center cannot rely on either Section 22 Paragraph 1 Sentence 4 of the German Social Code, Book II (SGB II) as amended, or Section 22 Paragraph 3 of the SGB II as amended, which came into effect on April 1, 2011.
Subsequently, credits attributable to housing costs and heating reduce the housing costs and heating expenses incurred after the month of the credit. Regardless of the highly controversial legal question in case law and legal literature, and not further addressed by the Social Court in the contested decision, of whether a credit from an operating cost reserve must actually be available to the benefit recipient for the application of Section 21 Paragraph 1 Sentence 4 of the German Social Code, Book II (SGB II) (old version) or Section 22 Paragraph 3 of the German Social Code, Book II (SGB II) (new version) (affirmative: Social Court Neubrandenburg, judgment of January 19, 2011 – S 11 AS 386/08 –; Higher Social Court Hamburg, judgment of July 16, 2009 – L 5 AS 81/08 –; left open: Higher Social Court Saxony-Anhalt, decision of March 10, 2011 – L 5 AS 19/11 B ER –; negative: Higher Social Court Baden-Württemberg, judgment of January 20, 2010 – L 3 AS 3759/09 –; Higher Social Court North Rhine-Westphalia, judgment of September 22, 2009 – L 6 AS 11/09 – ; Appeal pending: BSG file number: B 4 AS 132/11 R -; Ahrent in Die Sozialgerichtsbarkeit (SGb) 2011, 28) and the still to be examined similarity and eligibility of the respective costs charged (regarding credit from an electricity bill: BSG, judgments of August 23, 2011 – B 14 AS 186/10 R and B 14 AS 185/10 R -) the benefit provider may not arbitrarily freely determine the time of the direct crediting of the credit against the expenses for housing and heating, thereby reducing the need for benefits.
Section 22 Paragraph 1 Sentence 4 of the German Social Code, Book II (SGB II aF) as well as Section 22 Paragraph 3 of the German Social Code, Book II (SGB II nF) expressly stipulate when operating cost repayments are to be taken into account, namely starting from the next month after the repayment or credit note.
The legislator thus expressly relies on the accrual principle (LSG Berlin-Brandenburg, decision of February 25, 2010 – L 25 B 1474/08 AS B PKH – ; Berlit in Lehr- und Praxiskommentar (LPK)-SGB II, 3rd edition, § 22 Rn 57; Lang/Link in Eicher/Spellbrink, SGB II, 2nd edition, § 22 Rn 61c) and not on the point in time that is simplest for the benefit provider, namely the next payment date.
Quote from the decision: “Accordingly, assuming the correctness of its legal opinion, the AG should have revoked the decision of August 24, 2010, regarding the housing and heating costs set therein pursuant to Section 40 Paragraph 1 Sentence 2 of the German Social Code, Book II (SGB II) in its former version or current version, in conjunction with Section 330 Paragraph 3 Sentence 1 of the German Social Code, Book III (SGB III) and Section 48 Paragraph 1 Sentence 2 Number 4 of the German Social Code, Book X (SGB X), as early as January 2011 (see generally: Federal Social Court, judgment of April 6, 2011 – B 4 AS 12/10 R –), because the credit balance from the 2009 operating cost statement was received by the applicant at least with the operating cost statement and the offset declaration from his landlord on December 15, 2010.”.
This follows directly from Section 389 of the German Civil Code (BGB), according to which set-off means that the claims, insofar as they coincide, are deemed to have been extinguished at the time when they became suitable for set-off against each other; in this case, therefore, on December 15, 2010.
Insofar as the employer apparently relied on a fictitious payment date in January 2011 in the appeal decision of May 5, 2011, this is not a "clear legal situation" but simply unlawful
Rather unusually for an authority, the job center seems to want to maintain, even in the appeal proceedings, that preliminary legal protection is not to be granted in the case of partial revocation decisions with effect for the past, contrary to Art. 19 para. 4 of the Basic Law (GG), § 86b para. 1 no. 2 SGG.
From the Senate's point of view, this seems particularly strange, given that the authority only informs the applicant about the measures it has taken more than two months after the cessation of payments for housing and heating to the landlords and the termination of his tenancy.
Furthermore, according to the file (letter from the property management dated November 2, 2009), the AG was positively informed about the outstanding rental deposit and failed to inform the ASt about the obvious need to submit an application pursuant to Section 22 Paragraph 3 Sentence 1, last half-sentence of the German Social Code, Book II (SGB II aF) (assumption of deposit) or pursuant to Section 22 Paragraph 5 of the German Social Code, Book II (assumption of rent arrears)!!
(See: BSG, judgment of 18 January 2011 – B 4 AS 29/10 R – SozR 4-1200 § 14 No. 15).
Given these circumstances, the Senate fails to understand why the Local Court continues to assume that the taxpayer suffered no disadvantages as a result of the crediting of the operating cost allowance (brief dated June 17, 2011). Finally, based on the case file, the Senate sees absolutely no indication that the taxpayer abused his rights by attempting to be relieved of debts using taxpayer funds; despite being requested to do so, the Local Court has not provided any further evidence on this point.
4.5 – Hessian State Social Court decision of 06.09.2011, – L 7 AS 334/11 B ER –
1. A foreigner whose residence in Germany is deemed lawful under Section 81 Paragraph 3 Sentence 1 of the Residence Act (AufenthG) is not entitled to unemployment benefit II if the certificate of deemed residence issued in their favor contains a supplementary provision that expressly prohibits them from taking up employment. In such a case, they are not considered capable of working within the meaning of Section 8 Paragraph 2 of the German Social Code, Book II (SGB II), even if they would be entitled to a residence permit that would allow them to work, as long as this permit has not yet been issued.
2. However, if the foreigner lives in a household with his partner who is entitled to unemployment benefit II, he may be entitled to social assistance. A certificate of deemed residence status pursuant to Section 81 Paragraph 3 Sentence 1 or Paragraph 4 of the Residence Act (AufenthG) is not comparable to a tolerated stay pursuant to Section 60a of the Residence Act (AufenthG) or to any of the residence permits listed in Section 1 Paragraph 1 Number 3 of the Asylum Seekers' Benefits Act (AsylbLG). Therefore, the exclusion from benefits in Section 7 Paragraph 1 Sentence 2 Number 3 of the Social Code, Book II (SGB II) for those entitled to benefits under Section 1 of the Asylum Seekers' Benefits Act (AsylbLG) does not apply.
Note: See also the post on the blog of attorney L. Zimmermann
I would like to use an example to illustrate how different the court decisions regarding the German Social Code, Book II (SGB II) can be.
Anyone who deals with the German Social Code, Book II (SGB II) as a lawyer knows that this code can easily give a lawyer gray hair, because there is still no supreme court ruling on certain issues in the SGB II.
But how to help the client – one must try to achieve the best possible outcome for the applicant, i.e., the court decision that could help the client to victory must be chosen, but this is not always easy, so that in extremely difficult cases – at least – a decision should be made in favor of the applicant within the framework of a balancing of interests.
Example: Regarding the exclusion from benefits according to § 7 para. 1 sentence 2 no. 2 SGB II
sozialrechtsexperte.blogspot.com
4.6 – Hamburg State Social Court Judgment of 25 August 2011, – L 5 AS 33/08 –
The case law does not contain a legal principle that the person in need of assistance must be held to the apparent legal status of account ownership.
This applies in particular to savings books (see BSG, judgment of 24.5.2006, B 11a/ AL 7/05 R with further references).
In civil and higher administrative case law, it is generally accepted that, in the case of savings books or accounts opened by parents as close relatives in the name of a child and never relinquished, the conclusion is usually drawn that the donor intends to retain control over the savings and that it should therefore not be attributed to the child (see Higher Administrative Court of Saxony, decision of 25 January 2011, 1 A 715/09; Federal Court of Justice, judgment of 18 January 2005, X ZR 264/02).
However, the present case is different.
Subsequently, an agreement was reached between the daughter and the plaintiff and her husband that the plaintiff and her husband should continue to manage the savings account, because the plaintiff's daughter had no need for the money at that time.
sozialgerichtsbarkeit.de
Note from social advisor Willi 2: See also Aachen Social Court judgment of April 12, 2011, – S 14 AS 266/10 – appeal pending before the North Rhine-Westphalia State Social Court – L 7 AS 1060/11 –
sozialrechtsexperte.blogspot.com
4.7 – Hamburg State Social Court Judgment of 18 July 2011, – L 5 AS 28/07 –
The expenses for accommodation costs include the recipient's loan repayment obligation to her parents in the amount of the interest repayment for the condominium.
According to Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), benefits for accommodation and heating are provided in the amount of the actual expenses, insofar as they are reasonable. For a condominium, only those expenses directly associated with ownership are considered eligible accommodation costs. These include, at a minimum, interest on a mortgage and housing allowance (Federal Social Court, Judgment of June 18, 2008, Case No.: B 14/11b AS 67/06 R).
The expenses related to housing costs refer to the (monetary) expenditures that the person in need of assistance must pay to third parties under civil or public law for the use/provision of specific accommodation during the period of need. The mere legal obligation to pay expenses is sufficient (Berlit in LPK-SGB II, § 22 Rn. 14).
The loan repayment agreement concluded between the plaintiff and her parents is a legally valid agreement under civil law. The arm's length principle must be applied in this regard (Federal Social Court, judgment of June 17, 2010, case no.: B 14 AS 46/09 R).
Note: See also the post on the blog of attorney L. Zimmermann
The disputed 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 of the German Social Code, Book II (SGB II), which was not amended in this respect from January 1, 2005, until the date of the decision). The concept of reasonableness, as an indeterminate legal term, is subject to unrestricted judicial review (established case law; see, for example,
Federal Social Court (BSG) judgment of February 19, 2009 – B 4 AS 30/08 R – BSGE 102, 263 = SozR 4-4200 § 22 No. 19 (Munich), paragraph 12 with further references). sozialrechtsexperte.blogspot.com
5. Decisions of the social courts on basic income support for job seekers (SGB II)
5.1 – Hamburg Social Court Judgment of 08.11.2010, – S 6 AS 3819/09 –
No reimbursement of actual housing costs in the case of bad faith rental agreements
Anyone who, in bad faith, i.e., culpably aware of both the expected receipt of benefits and the unreasonable actual costs of accommodation, concludes a tenancy agreement for clearly unreasonable accommodation, is not entitled to reimbursement of the unreasonable costs, even in view of Section 22 Paragraph 1 Sentence 3 of the German Social Code, Book II (SGB II) (cf. Federal Social Court, Judgment of December 17, 2009, B 4 AS 19/09 R, SozR 4-4200 § 22 No. 28, Rn. 17).
Note: An internal agreement (i.e., between the plaintiff and Mr. B.) stipulating that the plaintiff alone would be liable for the landlord's claims is not binding on the defendant. The court was not required to determine (e.g., by hearing Mr. B. as a witness) whether the plaintiff and Mr. B. had actually entered into such an agreement. Even if that were the case, an agreement with Mr. B. – especially a covert one – would have to be considered a case of collusion (regarding the applicability of this legal concept also in the scope of application of Section 22 of the German Social Code, Book II, see Bavarian State Social Court, decision of May 13, 2009, L 11 AS 177/09 B PKH; Lower Saxony-Bremen State Social Court, judgment of December 11, 2008, L 13 AS 36/08; furthermore regarding its applicability in social law even without an express statutory provision: Federal Social Court, judgment of June 23, 2010, B 6 KA 7/09 R; Düsseldorf Social Court, judgment of July 14, 2010, S 2 KA 61/08) to the detriment of the defendant and could not bind the defendant.
The plaintiff rented the apartment, which, given its living space of 112 square meters, was clearly unsuitable for a single person, on March 1, 2009, just a few days before submitting her application for benefits under the German Social Code, Book II (SGB II). In the preceding months, she had lived – as she stated to the defendant in her letter of March 23, 2009 – on savings, "but primarily at the expense of family and friends." In light of these circumstances, the plaintiff is precluded from claiming accommodation costs, based on an agreement with Mr. B. (which she only belatedly disclosed to the defendant and apparently not at all to the landlord), that were almost twice the standard benefit rate applicable to a single person.
sozialgerichtsbarkeit.de
Note: see also the post on the blog of attorney L. Zimmermann.
Information from social advisor Willi 2: Federal Social Court (BSG), judgment of December 17, 2009, B 4 AS 19/09 R -
sozialrechtsexperte.blogspot.com
5.2 – Düsseldorf Social Court, decision of 14 September 2011, – S 10 AS 3036/11 ER –
A woman born in Lithuania is entitled to ALG 2 (unemployment benefit II) as part of a balancing of interests.
The exclusion of benefits in Section 7 Paragraph 1 Sentence 2 No. 2 of the German Social Code, Book II (SGB II) is therefore compliant with European law if unemployment benefit II is "social assistance" within the meaning of Article 24 Paragraph 2 of the EU Directive and this provision is in turn consistent with the higher-ranking primary law of the EU.
The Higher Social Court of North Rhine-Westphalia (decision of 25 March 2010 – L 7 B 172/09 AS ER) states the following:
In legal practice and literature, it is disputed whether the provision of Section 7 Paragraph 1 Sentence 2 No. 2 of the German Social Code, Book II (SGB II), which establishes an exclusion of benefits without a corresponding opening clause, particularly for former EU citizens, is compatible with EU law. (See, among others, Baden-Württemberg Higher Social Court, decision of 23 July 2008 – L 7 AS 3031/08 ER-B; Berlin-Brandenburg Higher Social Court, decision of 8 June 2009 – B 34 AS 790/09 B ER; Reutlingen Social Court, judgment of 29 April 2008 – S 2 AS 295 2/07; North Rhine-Westphalia Higher Social Court, decision of 16 July 2008 – L 19 B 111/08 AS ER; Brühl/Schoch in LPK, § 7 para. 20 et seq.; Schreiber info also 2008, 3 et seq. and 2009, 195 et seq.; Kunkel/Frey, ZFSH 07/2008, 387 et seq.; Husmann, NZS 2009, 547 et seq.) 652 ff.; Hailbronner, ZFSH 2009, 195 ff.; Dr. Piepenstock, jurisPR-SozR, 23/09 Note 1). This question cannot be definitively resolved in preliminary injunction proceedings. However, the obligation of German courts to refer a case to the European Court of Justice, which is competent to interpret Articles 39 and 12 EC Treaty relevant here, exists only for the main proceedings, but according to prevailing opinion, not for preliminary injunction proceedings. Taking into account the summary examination required in preliminary injunction proceedings and the subsistence-securing nature of benefits under Book II of the German Social Code (SGB II), a balancing of interests must therefore be undertaken in accordance with the case law of the Federal Constitutional Court cited above.
The adjudicating chamber concurs with these statements.
Note: See also the post on the blog of attorney L. Zimmermann
Hartz IV case law is giving lawyers headaches
(sociallawexpert.blogspot.com)
5.3 – Berlin Social Court, decision of 19 September 2011, – S 55 AS 24521/11 ER –
Berlin job centers are not allowed to place Hartz IV recipients in illegal employment relationships, and certainly not to force them to do so through sanctions.
Reduction of approved basic income support benefits as a sanction under Section 31 of the German Social Code, Book II (SGB II) – reasonable employment opportunity in the remuneration variant – unconscionability of the remuneration – minimum earnings limit 2011
1. Social welfare authorities, bound by law, may not arrange placements in unconscionable employment relationships due to unconscionable remuneration, even in the area of basic income support, nor may they enforce such placements through sanctions. (Following the rulings of the Berlin Social Court of February 27, 2006, Case No. S 77 AL 742/05 and Decision of September 1, 2010, Case No. S 55 AS 24521/10 ER) Employment that violates public policy is unreasonable within the meaning of Section 10 Paragraph 1 No. 5 of the German Social Code, Book II (SGB II), and may be refused without further compelling reasons, even if this would reduce the need for assistance.
2. A conspicuous disparity, which establishes immorality within the meaning of Section 138 Paragraph 1 of the German Civil Code (BGB) because it violates the value judgments expressed in the Basic Law and in Article 4 No. 1 of the European Social Charter (EuSC) as simple federal law, is to be assumed if the offered remuneration for full-time work with average work performance is below the basic income support level for an adult single person without maintenance obligations, with average accommodation that is adequate under basic income support law and with unrestricted employability.
3. For the year 2011, a monthly gross salary of less than EUR 1058 (net: EUR 815) for full-time employment is considered unconscionable in Berlin. (Hourly wage for a 38.5-hour week: EUR 6.34)
6. Amount of the subsidy for recipients of unemployment benefit II for their private health insurance
Comment on: Federal Social Court, 4th Senate, Judgment of 18 January 2011 – B 4 AS 108/10 R; Author: Maarit Tuulia Müller, Attorney at Law; Source: jurisPR-SozR 19/2011 Note 1
Source: Juris
Quote: Guiding principle:
A privately insured recipient of unemployment benefit II can claim reimbursement from the SGB 2 provider for their private health insurance contributions that are below half the maximum amount for statutory health insurance, by means of an analogous application of the regulation applicable to persons voluntarily insured in statutory health insurance.
Context of the decision:
sozialrechtsexperte.blogspot.com
Note: 1. Baden-Württemberg State Social Court, decision of 16 August 2011, – L 7 AS 1953/11 ER-B –
In the summary review possible in preliminary injunction proceedings, a claim for reimbursement of private health insurance contributions is likely to be limited to half of the basic tariff. Retroactive payments may be possible in individual cases.
2. North Rhine-Westphalia State Social Court, Judgment of 16 May 2011, – L 19 AS 2130/10 –, appeal pending before the Federal Social Court under file number: – B 14 AS 110/11 R-
Read more here: sozialrechtsexperte.blogspot.com
Author of the legal case ticker: Willi 2 from Tacheles
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
