1. Decisions of the Federal Social Court of 27 September 2011 on basic income support for job seekers (SGB II)
1.1 – BSG, Judgment of 27.09.2011, – B 4 AS 160/10 R –
The wording, legislative history, systematic integration of § 26 SGB II and § 12 para 1c VAG as well as their meaning and purpose clarify that in the case of § 12 para 1c sentence 6 VAG not only the need for assistance alone creates an entitlement to the contribution subsidy, but an entitlement to unemployment benefit II must at least be realizable.
This is not the case for the plaintiff due to the exclusion from benefits under Section 7 Paragraph 5 Sentence 1 of the German Social Code, Book II (SGB II). No different considerations apply to contributions to private long-term care insurance.
The plaintiff's claim for benefits to secure his livelihood is precluded by the exclusion of benefits under Section 7 Paragraph 5 Sentence 1 of the German Social Code, Book II (SGB II). During the period in question, he completed vocational training that was, in principle, eligible for funding and was only excluded from receiving BAföG (Federal Training Assistance Act) benefits due to personal reasons. The conditions for the exception under Section 7 Paragraph 6 of the SGB II are also not met.
The exclusion of benefits under Section 7 Paragraph 5 Sentence 1 of the German Social Code, Book II (SGB II) only applies to benefits for securing subsistence that arise as a result of education or training. According to the established case law of the Federal Social Court (BSG), this provision is intended solely to ensure that no further basis for educational support is established beyond the legally provided grounds for BAföG (Federal Training Assistance Act) or SGB III (Social Code, Book III). However, whether contributions to private health insurance constitute benefits for securing subsistence is irrelevant here. The expenses for private health insurance contributions are education-related, because whether and to what extent they arise depends on the specific activity pursued, its legal classification, and the associated social security status—in this case, the plaintiff's status as a student.
Even if contributions to private health insurance were not considered part of the benefits for securing subsistence, the plaintiff would still have no claim to have his contributions covered by the defendant. He cannot derive such a claim, in particular, from Section 12 Paragraph 1c of the Insurance Supervision Act (VAG). Because his need for assistance exists even without the contribution expenses, only Sentence 6 of this provision could apply. However, Section 12 Paragraph 1c Sentence 6 of the VAG does not constitute an independent legal basis for a claim that could establish an obligation on the part of the basic income support provider regardless of whether the eligibility requirements of the German Social Code, Book II (SGB II) are met. The requirements of Section 26 of the SGB II must be fulfilled.
1.2 – BSG, Judgment of 27.09.2011, – B 4 AS 180/10 R –
The employment allowance within the meaning of Section 30 SGB II a. F. is generally not to be deducted from sickness benefit as a wage replacement benefit.
Its deductibility is limited to earned income. This follows from the wording, legislative history, systematic context, and purpose of the regulation, and also corresponds to the case law of the administrative courts regarding the former Section 76 Paragraph 2a of the Federal Social Assistance Act (BSHG).
However, allowances pursuant to Section 11 Paragraph 2 Sentence 1 of the German Social Code, Book II (SGB II), in particular pursuant to Section 11 Sentence 1 Number 5 of the German Social Code, Book II (SGB II), must also be deducted from sickness benefits before they are taken into account as income when calculating unemployment benefit II.
According to Section 11 Paragraph 2 Sentence 1 Number 5 of the German Social Code, Book II (SGB II), the deduction is granted for necessary expenses related to generating income. By its very wording, such deductions are therefore also possible for income that is not earned income. An expense is considered related to generating income if its purpose is closely connected to the type of income. Expenses are considered necessary if they continue to accrue even while receiving income replacement benefits because the connection to the type of income is so close that a cessation of the expense cannot be expected or easily reduced during the period of entitlement to income replacement. In the latter case, the expenses are deductible until the first legal opportunity for a change arises.
Note: See also the post on the blog of attorney L. Zimmermann
Bavarian State Social Court decision of August 11, 2011 – L 5 KR 271/11 B ER –
sozialrechtsexperte.blogspot.com
1.3 – BSG, Judgment of 27.09.2011, – B 4 AS 202/10 R –
A claim for initial furnishings for the apartment can, in principle, also exist if initial furnishings for the apartment were already present and are lost upon moving from abroad.
Section 23, paragraph 3, sentence 1, number 1 of the German Social Code, Book II (SGB II, old version) stipulates that benefits for initial furnishings of an apartment, including household appliances, are provided separately. The entitlement is to be understood as needs-based.
In contrast to maintenance and supplementary needs, which are to be covered by the standard benefit, initial furnishing of an apartment in the sense of the renewed furnishing of the person in need with furniture and household appliances sought here is only considered if the person in need proves that he or she does not have or no longer has the necessary furnishings – usually in connection with special events.
A claim for initial furnishings for the apartment can, in principle, also exist if initial furnishings for the apartment were already present and are lost upon moving from abroad.
The plaintiff's alleged negligent conduct in connection with the loss of the apartment furnishings does not preclude the claim.
In this respect, the Higher Administrative Court initially combines the necessary needs-based approach regarding the existence of a need for housing equipment in an impermissible manner with the question of the causes of the need for assistance and aspects of fault.
The obligation to take initiative, as regulated in Section 2 of the German Social Code, Book II (SGB II), does not constitute an independent ground for exclusion from benefits.
The exclusion of benefits in the area of subsistence security requires explicit legal regulation.
Note: See also the post on the blog of attorney L. Zimmermann
Court (BSG), Judgment of August 20, 2009, – B 14 AS 45/08 R –
sozialrechtsexperte.blogspot.com
1.4 – BSG, Judgment of 27.09.2011, – B 4 AS 155/10 R –
According to the broad scope of application of VV-RVG No. 1008, a majority of clients already exists if the same lawyer acts for different natural persons.
It is irrelevant who personally instructed the lawyer. Even if only one person acts as the client for several people and concludes the legal services agreement with the lawyer, Section 1008 of the German Lawyers' Fees Act (RVG) may apply.
In the reopened appeal proceedings, the LSG will therefore have to determine whether, taking into account the specific circumstances of the individual case and against the background of the presumption rule of § 38 SGB II, it can be assumed that the authorized lawyer represented the other members of the household in the objection proceedings in addition to the plaintiff no. 1).
Should the Higher Social Court (LSG) conclude that multiple parties are represented, the court will also have to decide on the scope of the claimed increase. Firstly, the amount of the business fee must be reviewed up to the amount specified by the lawyer, and secondly, the amount of the increase must be determined based on this, and the total amount calculated.
juris.bundessozialgericht.de
2. Decision of the Federal Social Court of 26 May 2011 on basic income support for job seekers (SGB II)
2.1 – BSG, Judgment of 26.05.2011, – B 14 AS 54/10 R –
The Federal Employment Agency has been unlawfully charging reminder fees to Hartz IV recipients for years.
This was because there was no legal basis for the Federal Employment Agency to collect the funds for the job centers. The sole responsibility would have been the joint agency tasked at the time with enforcing basic income support for job seekers. The legislature created a corresponding legal basis in April 2011. Whether late payment fees may also be charged since then remains unclear following the Kassel ruling.
The imposition of late payment fees by the defendant Federal Employment Agency constituted an administrative act pursuant to Section 31 of the German Social Code, Book X (SGB X), which could be challenged by objection and an action for annulment. The action for annulment was also well-founded, as the defendant was not entitled to charge the plaintiff late payment fees. It lacked subject-matter jurisdiction. The sole competent authority would have been the joint employment agency then responsible for the enforcement of basic income support for job seekers. Under the legal framework in force at the time (cf. now Section 44b Paragraph 4 of the German Social Code, Book II (SGB II)), there was also no legal basis for assigning the task of debt collection to the defendant.
According to Section 88 Paragraph 1 Sentence 1 of the German Social Code, Book X (SGB X), which regulates the contractual relationship within the framework of the regulations on cooperation between benefit providers, a benefit provider (client) may have tasks incumbent upon it performed by another benefit provider or its association (agent) with the latter's consent, if this is expedient for the client and agent to carry out the tasks due to the objective connection of the tasks and in the best interests of those affected.
However, the application of Section 88 of the German Social Code, Book X (SGB X) fails because, according to its wording, this provision does not apply to the commissioning of the defendant by the ARGE (Joint Employment Agency), since the law only permits a benefit provider within the meaning of Section 12 of the German Social Code, Book I (SGB I), to conclude a contract as the client (see Seewald in Kasseler Kommentar, as of April 2011, Section 88 SGB X, marginal note 19).
The joint working groups pursuant to Section 44b SGB II aF were not themselves benefit providers (BSG judgment of 7 November 2006 – B 7b AS 8/06 R – BSGE 97, 217 = SozR 4-4200 § 22 No. 1, para. 20).
Rather, they were established by contract by the responsible bodies pursuant to Section 44b Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II aF), for the uniform performance of their tasks under the SGB II. Pursuant to Section 44b Paragraph 3 of the SGB II aF, the ARGE (Joint Employment Agency) performed the tasks of the Employment Agency as a benefit provider under the SGB II.
The municipal authorities should delegate the performance of their tasks to the ARGE (Joint Employment Agency). Because the ARGE lacked the status of a service provider, it was prohibited from having its tasks performed by the defendant on the basis of Section 88 Paragraph 1 of the German Social Code, Book X (SGB X).
The new regulation introduced in the meantime in Section 44b Paragraph 4 of the German Social Code, Book II (SGB II) cannot be applied to the admissibility of a contractual transfer of tasks during the relevant period.
Although the explanatory memorandum to the draft law submitted by the CDU/CSU, SPD and FDP parliamentary groups states that Section 44b Paragraph 4 of the German Social Code, Book II (SGB II) "clarifies" that the joint institution may delegate some of its tasks to the providers (Bundestag printed matter 17/1555, p. 24; identical wording to the draft law of the Federal Government, see Bundesrat printed matter 226/10, pp. 37 et seq.).
However, it is unclear what the assumption that this is merely a clarification is based on. Furthermore, the explanatory memorandum to the law makes it clear in the same context that the new regulation was intended to "open up the possibility" of transferring individual tasks to the service providers by legal agreement (Bundestag printed matter, ibid.).
3. Decisions of the Federal Social Court of 13 April 2011 on basic income support for job seekers (SGB II)
3.1 – BSG, Judgment of 13 April 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.
Such a claim is possible within the scope of 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 turns out to be without legal basis.
Note: See also the post on the blog of attorney L. Zimmermann
Court (BSG), Judgment of April 13, 2011, – B 14 AS 101/10 R –
sozialrechtsexperte.blogspot.com
3.2 – BSG, Judgment of 13 April 2011, – B 14 AS 32/09 R-
No increased Hartz IV benefits for long-term tenants.
Reasons such as the fact that HB has lived in the apartment since 1959; and that he keeps a comprehensive archive in it, particularly on the topics of sports, the Ministry for State Security and football, in which he is internationally recognized as a scientific expert, do not explain why he should have a higher entitlement to housing benefits than the appropriate amount beyond the expired six-month period of Section 22 Paragraph 1 Sentence 3 of the German Social Code, Book II (SGB II).
Hartz IV – The age of the benefit recipient and their long length of residence are – even in combination – not reasons that speak against a move.
With regard to the social environment, it should be borne in mind that every move entails a change in the social environment to some extent, and this is a normal consequence resulting from the legal regulations (cf. Federal Social Court [BSG] judgment of 19 February 2009 – B 4 AS 30/08 R – BSGE 102, 263 = SozR 4-4200 § 22 No. 19 (Munich), paragraphs 32 et seq.; Federal Social Court [BSG] judgment of 17 December 2009 – B 4 AS 27/09 R – SozR 4-4200 § 22 No. 27 (Essen), paragraphs 33 et seq.).
Reasons that may preclude a move include, for example, a disability or the exercise of visitation rights with a child (see Section 22b Paragraph 3 Sentence 2 of the German Social Code, Book II, as amended by the Standard Needs Assessment Act, Federal Law Gazette I 2011, 453; similarly, Federal Social Court judgment of February 19, 2009 – B 4 AS 30/08 R – BSGE 102, 263 = SozR 4-4200 § 22 No. 19 (Munich), paragraphs 33 et seq.; Federal Social Court judgment of December 17, 2009 – B 4 AS 27/09 R – SozR 4-4200 § 22 No. 27 (Essen), paragraph 33).
The plaintiff's scientific research and his archive, as well as Article 5 Paragraph 3 of the Basic Law cited in the grounds for appeal, do not preclude a relocation.
The Federal Social Court (BSG) has already ruled that Section 22 of the German Social Code, Book II (SGB II) does not provide a legal basis for the assumption of costs for premises used for professional purposes (BSG of 23 November 2006 – B 11b AS 3/05 R – SozR 4-4200 § 16 No. 1, paragraph 15).
The assessment of the appropriateness of heating costs must not only be carried out separately from housing costs, but also according to its own set of rules. In the absence of other relevant figures for a specific case, heating costs are considered appropriate as long as they remain below the threshold of a nationwide or municipal heating cost index (see Federal Social Court [BSG] judgment of July 2, 2009 – B 14 AS 36/08 R – BSGE 104, 41 = SozR 4-4200 § 22 No. 23; BSG judgment of July 2, 2009 – B 14 AS 33/08 R – SozR 4-4200 § 22 No. 25; BSG judgment of August 20, 2009 – B 14 AS 65/08 R – SozR 4-4200 § 22 No. 26 (Zweibrücken), paragraphs 23 et seq.).
sozialgerichtsbarkeit.de
Note: see also the post on the blog of attorney L. Zimmermann.
Court (BSG), Judgment of April 13, 2011, – B 14 AS 85/09 R –
sozialrechtsexperte.blogspot.com
4. Decision of the Federal Social Court of 09.06.2011 on social assistance (SGB XII)
4.1 – BSG, Judgment of 09.06.2011, – B 8 SO 1/10 R –
An adult recipient of social assistance is entitled to have her benefits calculated taking into account the standard rate for a head of household at 100%, because she does not form a household community or a community of need with her mother and brother within the meaning of Section 19 of the German Social Code, Book XII (SGB XII).
If, as in this case, there is no community of activity within the meaning of Section 19 of the German Social Code, Book XII (SGB XII), and the constellation of persons does not meet the requirements for the assumption of a community of need under the German Social Code, Book II (SGB II), this does not justify the typical assumption of a household saving.
Taking into account the judgments of the Federal Social Court (BSG) of 19 May 2009 (B 8 SO 8/08 R-) and of 23 March 2010 (B 8 SO 17/09 R-), the distinction between head of household and household members in the German Social Code, Book XII (SGB XII), must be made in accordance with the regulations of the German Social Code, Book II (SGB II), for reasons of equal treatment, since both social codes have an identical social law function – namely, ensuring the minimum subsistence level.
The legislator of the SGB II no longer links the assumption of savings and reduction of the standard benefit to an individual examination of the actual circumstances of the persons living together, but in § 20 SGB II assumes a typical percentage reduction of the standard benefit due to savings only for members of a household receiving benefits.
Therefore, according to the jurisprudence of the Federal Social Court, in accordance with the principle of equality (Art. 3 para. 1 GG) and to avoid inconsistencies in the evaluation between the SGB II and the SGB XII, it must be assumed that when defining the term "household member", savings in the case of joint household management can only be assumed if the persons living together form a community of need within the meaning of § 7 para. 3 SGB II or a community of activity within the meaning of §19 SGB XII.
Note: See also the post on the blog of attorney L. Zimmermann
Hessian State Social Court decision of 28 July 2011, – L 7 SO 51/10 B ER –
sozialrechtsexperte.blogspot.com
5. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
5.1 – Bavarian State Social Court Judgment of 12 July 2011, – L 11 AS 639/09 –
Benefits for renting storage space for storing certain items are considered benefits for accommodation and heating within the meaning of Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), or with regard to any deposit within the meaning of Section 22 Paragraph 3 Sentence 1 of the German Social Code, Book II (SGB II).
If, due to the size of the specific accommodation occupied, it should be necessary to store appropriate household goods and personal belongings elsewhere, the reasonable costs of such storage may also be taken into account as part of the accommodation costs (see in detail BSG, judgment of 16.12.2008 – B 4 AS 1/08 R).
Note: See also the post on the blog of attorney L. Zimmermann
North Rhine-Westphalia State Social Court decisions of 15 April 2010, – L 7 AS 340/10 B ER – and – L 7 AS 341/10 B –
sozialrechtsexperte.blogspot.com
5.2 – Bavarian State Social Court decision of 10 August 2011, – L 16 AS 305/11 NZB –
By decision of 10.8.2011 the Bavarian State Social Court ruled that the plaintiff is not entitled to a higher standard benefit under the SGB II than legally provided for in the period from January to April 2011.
The complaint against the refusal to grant leave to appeal is dismissed.
The plaintiff had argued in support of his appeal against the refusal of leave to appeal that
"The legislator did not sufficiently consider the requirements of the Federal Constitutional Court when determining the level of standard benefit rates in the law of March 24, 2011. The German Bar Association has issued a model letter on this matter, the content of which he reproduces as follows:"
– The definition of the reference group is flawed in qualitative and quantitative terms, in particular insofar as it focuses on the bottom 15% for individuals and the bottom 20% for family households.
– The 2008 Income and Expenditure Survey (EVS) is not sufficient as a data basis, unlike the 2003 survey, because the Federal Government did not conduct its own statistical surveys on needs.
– The problem of deductions resulting from the conflation of the consumer basket model with the statistical model leads to a reduction in the standard benefit rate of such a magnitude that it is impossible to offset above-average needs in one area with below-average needs in another. Furthermore, these deductions always affect people who do not have these expenses.
Tobacco and alcohol should not have been excluded from the standard allowance because the consumption of beer and wine is often an integral part of regional culture. There are very few events, both private and public, where participation in social life is not also characterized by the ability to afford a beverage containing alcohol, such as beer while watching a sporting or musical event. Attending public events where the consumption of beer or wine is customary should not be categorically denied to recipients of benefits under the German Social Code, Book II (SGB II).
– When calculating transport needs, people who drive cars should not have been excluded. This causes a significant statistical error, leading to a downward distortion of the figures.”
The legal matter is not of fundamental importance in the present case.
In its judgment of February 9, 2010 (BVerfGE 125, 175), the Federal Constitutional Court (BVerfG) addressed in detail and exhaustively the constitutional requirements for the legislature to determine the level of standard benefits under the German Social Code, Book II (SGB II) and Book XII (SGB XII). The principles to be observed in this regard have thus been definitively clarified by the highest court.
At the time the court ruling was issued, fundamental importance could still have been attached to the question of the level of the standard benefit to be applied in the period from 1 January 2011 until the statutory reform of the standard benefit required by the Federal Constitutional Court, because the Federal Constitutional Court, in its aforementioned ruling, had declared the statutory regulation in force until then to be unconstitutional and applicable only for a transitional period until 31 December 2010.
This fundamental legal question, which at most existed only temporarily, was resolved with the entry into force of the Act on the Determination of Standard Needs and the Amendment of the Second and Twelfth Books of the Social Code of March 24, 2011 (Federal Law Gazette I, p. 453; cf. the re-publication of the SGB II of May 13, 2011, Federal Law Gazette I, p. 850). In this Act, the legislator increased the standard needs allowance for single persons from EUR 359 to EUR 364 retroactively to January 1, 2011, in Section 20, Paragraph 2, Sentence 1 of the SGB II.
The legal question of whether the new regulation of standard needs for securing subsistence in Section 20 of the German Social Code, Book II (SGB II), by the law of March 24, 2011, is compatible with the fundamental right to a guaranteed minimum standard of living derived from Article 1 Paragraph 1 of the Basic Law (GG) in conjunction with the social state principle of Article 20 Paragraph 1 GG, and in particular whether it has complied with the principles established by the Federal Constitutional Court in its judgment of February 9, 2010, does not require fundamental clarification, because there are no doubts about the constitutionality of the new legal regulation.
The Federal Constitutional Court already ruled in its judgment of December 9, 2010, that the standard allowance for single persons amounting to EUR 345, on which its decision was based, is not manifestly insufficient (ibid., para. 152). This must apply all the more to the standard allowance for single persons increased to EUR 364 pursuant to Section 20 Paragraph 2 of the German Social Code, Book II (SGB II), as amended.
The Federal Constitutional Court further stipulated only that, in order to determine the scope of the claim, the legislature must calculate all essential subsistence expenses in a transparent and appropriate procedure, realistically and comprehensibly, based on reliable figures and conclusive calculation methods (ibid., para. 139). The legislature has a degree of discretion in this regard, which includes the assessment of the actual circumstances as well as the evaluative assessment of the necessary needs (ibid., headnote 2 and para. 138).
No specific method is prescribed, however, deviations from the chosen method must be objectively justified (para. 139). In view of the legislative discretion afforded to the legislature, the Federal Constitutional Court's substantive review of the outcome is limited to whether the benefits are manifestly inadequate (para. 141).
The legislative materials (draft bill of the CDU/CSU and FDP parliamentary groups of 26 October 2010, BT-Drs. 17/3404, p. 42 ff.) show that the legislator adhered to the requirements of the Federal Constitutional Court for determining the level of standard needs.
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 adjusted through special analyses (e.g., heating electricity share, local public transport, telephone costs).
The adjustment of standard benefit rates was linked to price developments with a share of 70% and net wages and salaries with a share of 30% (§ 20 para. 5 SGB II in conjunction with § 28a SGB XII), instead of to pension developments as before.
Separate legal bases for entitlement to benefits for education and participation for children and young people were established in Sections 28 and 29 of the German Social Code, Book II (SGB II). For additional needs in atypical hardship cases, a legal basis for entitlement, which complies with the requirements of the Federal Constitutional Court, was already introduced in Section 21, Paragraph 6 of the SGB II by the Act of May 27, 2010 (Federal Law Gazette I, p. 1076).
Individual aspects of the calculation 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 Calculation Act (RBEG), which stipulates that the bottom 15% of single-person households and the bottom 20% of family households are taken into account. However, this should not be confused with the question of whether the regulation is unconstitutional.
In its judgment of February 9, 2010, the Federal Constitutional Court did not require that at least the bottom 20% of households be taken into account. It merely stated that the legislature's previous decision to consider the bottom 20% of households was based on sound reasoning and therefore not objectionable, and expressly pointed out that it was not required to examine whether choosing a different reference group would have been more appropriate (ibid., para. 168).
The legislator's new choice of reference group in Section 4 of the RBEG (Reference Group Equalization Act) is also based on sound considerations. He was entitled to assume that selecting the lowest 15% of single-person households would capture the group of low-income earners as broadly as possible and obtain statistically reliable data.
In doing so, the legislator justifiably took into account that, in the case of single-person households, the proportion of households excluded beforehand – to avoid circular reasoning – at 8.6% of all households of this household type is considerably higher than the proportion of households excluded in the special evaluation of the 2003 EVS (0.5%), that the average consumption of the respective reference group has increased by approximately €70 per month, and that if the reference households comprised 20% of all single-person households stratified according to net income, the upper limit would shift towards higher incomes (BT-Drs. 17/3404, p. 89).
A comparison of the upper limit of the reference group “single-person households” in the special evaluation EVS 2008 and EVS 2003 also shows that this is now 22.3% (8.6% excluded households + 15% reference households) compared to 20.5% (EVS 2003) (see BT-Drs. 17/3404, p. 89).
The fact that the legislator, in contrast, considers the bottom 20% of households in the reference group "family households" (§ 2 No. 2 RBEG) (§ 4 Sentence 1 and 2 No. 2 RBEG) is not objectionable, since only 2.3% of couple households with children had to be excluded according to § 3 RBEG in order to avoid circular reasoning.
However, the legislator made one mistake in favor of those affected, which allowed for some leeway in setting the minimum subsistence level.
The needs assessments in the RBEG (Standard Benefits Act) were based on the assumption that the costs for hot water were to be paid from the standard benefit. Only in the final phase of the legislative process were the costs for hot water reclassified as 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), without, however, simultaneously adjusting the standard benefit rates downwards accordingly.
Regarding the other arguments put forward by the plaintiff against the constitutionality of the new regulation of the regular needs, the following should be stated:
– There is no evidence to suggest that the EVS 2008 might not be sufficient as a data basis.
– The Federal Constitutional Court has expressly recognized the possibility of considering only a certain proportion of the expenses of the lower reference group in question, provided that the deductions are calculated realistically and transparently (ibid., para. 170). The plaintiff has not explained why this should not have been done, nor is it otherwise apparent.
– The decision not to take into account expenditure on tobacco and alcohol (while simultaneously increasing expenditure on mineral water by EUR 2.99) is purely political in nature, but is covered by the legislator's discretion in constitutional terms.
– Likewise, the decision not to take into account the expenses for the use of motor vehicles falls within the political, but legally unverifiable, scope of discretion of the legislator, who, in return, has justifiably increased the share of expenses for bicycles and local public transport through a special evaluation (BT-Drs. 17/3404 p. 59).
– The fact that electricity costs are included in the standard allowance and not reimbursed in their actual amount as accommodation costs also represents a political decision by the legislator, which is legally unobjectionable.
In particular, the State Social Court of Baden-Württemberg, in its judgment of June 10, 2011 (Case No. L 12 AS 1077/11), provided a detailed justification for the constitutionality of the new legal regulation.
Note: See also the post on the blog of attorney L. Zimmermann
sozialrechtsexperte.blogspot.com
5.3 – State Social Court of Saxony-Anhalt, decision of 23 August 2011, – L 5 AS 435/10 B ER –
Insufficient or missing contract negotiations regarding the conclusion of an integration agreement do not render the decision replacing it unlawful.
To the extent that the applicant objects that there was no negotiation regarding the content of an integration agreement prior to the issuance of the decision and that the respondent was unwilling to engage in dialogue, this is legally irrelevant. According to the case law of the Federal Social Court (judgment of September 22, 2009, file no. B 4 AS 13/09 R, juris para. 16 et seq.), the respective case worker of the benefit provider decides whether negotiations are conducted with the aim of concluding an integration agreement, or whether the integration agreement is replaced by an administrative act, or whether an administrative act concerning integration services is issued from the outset. While the wording of Section 15 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II) suggests that concluding an integration agreement should be the norm and issuing an administrative act replacing the integration agreement the exception, the administration has the right to initiate the process and may also refrain from negotiations regarding the integration agreement. The decision as to which procedural path the basic income support provider takes in each individual case is a non-justiciable discretionary decision (BSG, aaO, RN 13).
Note: See also the post on the blog of attorney L. Zimmermann
Hartz IV – No liability for damages on the part of the recipient if the compensation clause in their integration agreement is invalid.
sozialrechtsexperte.blogspot.com
5.4 – State Social Court of Saxony-Anhalt, Decision of 30 August 2011, – L 5 AS 330/11 B ER –
Provisionally granted benefits under Book II of the German Social Code (SGB II) become legally binding through a basic decision
The respondent's need for legal protection must be denied because the requested decision, namely the annulment of the social court's decision, would not improve his legal position.
He no longer has a legitimate interest in the annulment of the social court's decision because, with the amending decision of July 26, 2011, he established an independent legal basis for the applicants' claim to a loan-based grant of benefits in the amount specified therein (see also: Higher Social Court of Berlin-Brandenburg, decision of July 11, 2008, L 25 B 1174/08 AS ER; decision of November 7, 2007, L 9 B 572/07 KR ER).
In its decision of July 26, 2011, the respondent not only granted the applicants the benefit awarded by the Social Court, but also additional benefits that had been denied by the court. Any adverse change to the applicants' position should they prevail in the appeal proceedings would be inadmissible, as the amended decision of July 26, 2011, contains a provision binding on the respondent (see Federal Social Court, judgment of February 27, 2008, B 14 AS 23/07 R (18)). In this respect, the respondent could only revoke the amended decision of July 26, 2011, pursuant to the provisions of Section 45 of Book Ten of the German Social Code – Social Administrative Procedure and Social Data Protection (SGB X). A reversal of the Social Court's decision by the Senate would not be sufficient for this purpose.
In its decision of July 26, 2011, the respondent issued a final ruling regarding the granting of a loan for the period from April 1 to September 30, 2011, in the specified amount. This is not a provisional enforcement order. A provisional enforcement order is only applicable when an appeal—as in this case—does not have suspensive effect. In such a case, the authority must provisionally comply with the obligation imposed upon it by the judgment or order, irrespective of whether the judgment or order has yet become legally binding. However, a provisional enforcement order expressly does not constitute a binding ruling. Therefore, such an order must be subject to the condition that it only becomes valid once the imposed obligation becomes legally binding (Federal Social Court, Judgment of October 21, 1998, B 6 KA 65/97 R (15)). The present case is not such a provisional enforcement order.
The decisive factor in interpreting an administrative act is how the recipient was entitled to understand it (§ 130 German Civil Code). The starting point is the perspective of an objective recipient and how that recipient, acting in good faith, would have had to understand the administrative act. It is irrelevant whether the authority actually intended to issue such an act. A recipient cannot invoke a misunderstanding of an administrative act if, objectively and considering all circumstances, it could not have been understood in that way (Federal Social Court, Judgment of April 6, 2011, B 4 AS 119/10 R (18)). The interpretation must first be based on the wording of the operative part of the act, possibly with the aid of the reasoning provided in the decision (Federal Social Court, Judgment of March 2, 2010, B 5 R 104/07 R (12)). The decisive factor is the assessment at the time the decision is issued (BSG, judgment of 17 June 2008, B 8 AY 8/07 R (12)).
Taking these principles into account, the decision of July 26, 2011, does not, from the perspective of an objective recipient of the declaration, indicate that only a provisional, non-binding approval was to be granted for the period until the appeal court overturned the social court's decision.
Initially, the wording of the decision dated July 26, 2011, suggests only an unconditional ruling in the form of a loan granting benefits for the specified period. The heading "Loan Decision – Amendment to the Decisions of June 8, 2011, and July 4, 2011," as well as the introductory statements in the justification section of the decision, lead an objective recipient to interpret it only as meaning that the benefits are to be granted as a loan. This section states that immediate consumption or liquidation of assets is not possible or would constitute undue hardship, thus justifying the granting of a loan. Furthermore, explicit reference is made to the benefit application of April 1, 2011, and the loan claim is based on Section 24 Paragraph 5 of the German Social Code, Book II (SGB II).
5.5 – State Social Court of Saxony-Anhalt, decision of 03.08.2011, – L 2 AS 116/11 B ER –
In the case of an amount of 87.60 euros (debt to the electricity supplier), there is no ground for an order if the applicants have not credibly demonstrated special circumstances that make waiting for the main decision unreasonable.
Even if the interruption were otherwise permissible, it could likely be averted by paying €87.60, which appears reasonable for the applicants. This sum amounts to approximately 9.7% of the applicants' respective monthly standard benefits (2 x €328 + €251).
A withholding of approximately 10% of the standard benefit does not, however, constitute an amount where an impairment of the livelihood cannot be considered credible from the outset (cf. decision of the Senate of 23 March 2009 – L 2 B 95/08 AS ER).
However, if the payment is a one-off amount that is less than 10% of the monthly standard benefits, applicants would have to explain in detail what specific impairments are to be feared.
For example, when granting loans under Section 42a Paragraph 2 of the German Social Code, Book II (SGB II), the legislator considers repayment by offsetting 10% against current benefits to be the standard practice. This amount also corresponds to the minimum possible sanction under Section 32 of the SGB II. Only when the sanction exceeds 30% does the legislator provide for the possibility or necessity of supplementary benefits in kind (Section 31a Paragraph 3 of the SGB II).
Ultimately, in expedited proceedings to avoid prejudging the main issue, the Senate would not be prevented from issuing a preliminary order with reductions of up to 20% (cf. Federal Constitutional Court decision of 12 May 2005 – 1 BvR 569/05 –).
Note: See also the post on the blog of attorney L. Zimmermann
Hartz IV recipients have to scrimp and save, because for small amounts, there is generally no grounds for an order.
sozialrechtsexperte.blogspot.com
Judge sows, lawyer reaps.
sozialrechtsexperte.blogspot.com
6. Decisions of the social courts on basic income support for job seekers (SGB II)
6.1 – Social Court Landshut Decision of 16.08.2011, – S 10 AS 536/11 ER –
The objection has suspensive effect because the applicant was not informed prior to the breach of duty that a reduction of ALG II by more than 30% requires a special application pursuant to Section 31a Paragraph 3 Sentence 1 SGB II n. F. for the provision of supplementary benefits in kind or benefits of monetary value.
The Social Court of Landshut ruled in its decision of August 16, 2011, – S 10 AS 536/11 ER – that the sanction notice was unlawful because it lacked proper instruction on the legal consequences and the applicant also did not have positive knowledge within the meaning of Section 31 of the German Social Code, Book II (SGB II).
This is not a clarification, but a constitutive deterioration of the previous legal situation, to which the applicant must be made aware, particularly with regard to the subsistence-securing function of the "safeguarding benefits" (cf. the comments by Sauer in: Sauer (ed.), SGB II, 2011, § 31 para. 27 and Berlit, info also 2011, 53, 58).
A notification of legal consequences is only complete if it includes all legal consequences, even those that are only indirectly threatened. The applicant should therefore also have been informed that if unemployment benefit is reduced by at least 60% of the standard benefit rate applicable under Section 20, unemployment benefit II, insofar as it is provided for the need for accommodation and heating pursuant to Section 22 Paragraph 1 of the German Social Code, Book II (SGB II), will be paid to the landlord or other authorized recipients (see Section 31a Paragraph 3 Sentence 3 of the German Social Code, Book II (SGB II), as amended)
The Chamber is aware that at the time the integration administrative act of 28 February 2011 was issued, the new SGB II law was not yet in force (promulgation 29 March 2011; BGBl. I, p. 453) and therefore the new sanction law could not be included in the legal consequences information at the time the integration administrative act was issued.
It is equally clear, however, that in the case of subsequent breaches of duty based on the new sanctions law, the relevant legal consequences must be explained to the individual in a concrete, understandable, correct, and complete manner before the breach occurs. This can be achieved, for example, by amending or supplementing the integration administrative act accordingly, or by providing this information in subsequent letters/administrative acts.
The defective legal consequences notice in the integration administrative act of February 28, 2011, was not remedied by the information in the sanction notice of July 6, 2011. According to the clear wording of Section 31 of the German Social Code, Book II (SGB II), as amended, and its purpose, proper legal consequences notice must be provided before the breach of duty occurs.
Note: The sanction notice of 06.7.2011 is unlawful because it lacks proper notification of legal consequences and the applicant also did not have positive knowledge within the meaning of § 31 SGB II.
The breaches of duty mentioned in Section 31 Paragraph 1 of the German Social Code, Book II (SGB II) (2011) all require that the person entitled to benefits has been informed about the legal consequences of a breach of duty – before it has been committed (cf. regarding the previous legal situation BSG, judgment of 17 December 2009 – B 4 AS 30/09 R; judgment of 18 February 2010 – B 14 AS 53/08 R) or, according to the new version of Section 31 et seq. of the German Social Code, Book II, had corresponding knowledge of the legal consequences.
The Federal Social Court (BSG) has repeatedly ruled that legal consequences notices pursuant to Section 31 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II) (old version) must be specific, understandable, correct and complete (BSGE 102, 201, 211 = SozR 4-4200 § 16 No. 4, paragraphs 36-37; judgment of December 17, 2009 – B 4 AS 30/09 R – paragraph 22).
This corresponds to the overwhelmingly prevailing view in the case law of the lower courts (see Rhineland-Palatinate State Social Court, judgment of July 23, 2009 – L 5 AS 131/08; Saxony-Anhalt State Social Court, judgment of June 18, 2009 – L 5 AS 79/08; North Rhine-Westphalia State Social Court, decision of July 13, 2009 – L 19 B 68/09 AS) and in the literature (see Rixen in Eicher/Spellbrink, SGB II, 2nd ed. 2008, § 31 para. 44; Berlit in Münder, SGB II, 3rd ed. 2009, § 31 para. 68; A. Loose in Hohm, SGB II, as of January 2010, § 31 para. 65; Schmidt-De Caluwe in Estelmann, SGB II, as of December 2009, § 31 para. 78; Valgolio in Hauck/Noftz, SGB II, as of November 2009, § 31 para. 70; Sonnhoff in jurisPK-SGB II, 2nd ed. 2007, § 31 para. 139; Lauterbach, NJ 2008, 241, 244; Spellbrink in Kreikohm/Spellbrink/Waltermann, ibid., § 31 para. 32).
The Chamber expressly concurs with this view for the new sanctions law that came into force on April 1, 2011 (see Section 77 Paragraph 12 of the German Social Code, Book II). These strict requirements are particularly necessary in view of the serious consequences of Sections 31a and 31b of the German Social Code, Book II, in the area of subsistence benefits (see also Federal Social Court, Judgment of December 17, 2009 – B 4 AS 30/09 R – Paragraph 22).
The warning function of the legal consequences information is of paramount importance in the area of the German Social Code, Book II (SGB II). The social protection purpose, from which the Federal Social Court (BSG) derives the requirements for the legal consequences information, plays an even greater role in social benefits that secure subsistence, such as basic income support for job seekers, than, for example, in the classic benefits of employment promotion law.
The applicant cannot yet be assumed to have knowledge of the legal consequences according to § 31 para. 1 sentence 1 SGB II n. F.
Since April 1, 2011, a notification of legal consequences is no longer required, or an incorrect notification of legal consequences can be disregarded if the beneficiary was aware of the legal consequences.
Written instruction regarding the legal consequences of a breach of duty is equivalent to "knowledge" of those consequences; proof of written instruction regarding the legal consequences is not required in this case (BT-Drs. 17/3404, 111). The explanatory memorandum to the law is silent on the precise requirements for this knowledge. The standard to be applied is the legislator's intended equivalence between written instruction regarding the legal consequences and knowledge of the legal consequences (cf. Berlit, info also 2011, 53, 56).
According to the wording, actual knowledge is required; mere "must know," i.e., attributable, (grossly) negligent ignorance of the legal consequences, or "could know" is insufficient (§ 45 para. 2 sentence 3 no. 3 SGB X).
Due to the principle of equal standing, only (actual) knowledge is sufficient that is equivalent to the case-specific written notification of legal consequences with regard to its potentially action-guiding effects, in particular its warning and signaling function. What is required is positive, current knowledge on the part of the respective benefit recipient of the specific legal consequences that a particular breach of duty will have in a specific situation.
The beneficiary must – at least within the framework of a parallel assessment in the lay sphere – have grasped and understood that and what legal consequences will result from a certain course of action (as rightly stated by Berlit, loc. cit.).
In addition to a clear understanding of the differentiated legal consequences, the ability to access and intellectually process this knowledge in a specific action or conflict situation is also required. Abstractly possible knowledge from the past must still be relevant to the beneficiary and so firmly anchored in their consciousness that it can still guide their actions in the current situation. General instructions in forms and templates, as well as written information about legal consequences, are insufficient (see Berlit, ibid.).
Knowledge can be imparted through prior notifications/instructions on legal consequences as well as through oral instruction. Furthermore, in individual cases, knowledge of the legal consequences can be assumed if the beneficiary has previously documented their legal knowledge, for example in written submissions, such as in an appeal.
Written instructions regarding legal consequences in the past are irrelevant for the purposes of determining knowledge if there are significant reasons (e.g., language difficulties, illiteracy) to suggest that they were not taken note of or understood.
Although the applicant in the present proceedings has already been involved with sanctions under the German Social Code, Book II (SGB II) on several occasions in the past, so that a certain knowledge of the legal consequences can certainly be assumed on his part.
However, it must be taken into account that a new sanctions law with entirely new legal consequences came into force on April 1, 2011. Knowledge of these new legal consequences cannot be automatically assumed, at least not in the early stages of the new sanctions law's application.
Furthermore, errors in a written notification of legal consequences cannot usually be remedied by (positive) knowledge. Even if the written notification of legal consequences is incorrect, insufficient, internally contradictory, or flawed, the beneficiary may generally rely on it and is not required to assume that their legal knowledge is superior to that of the benefit provider. Only in rare exceptional cases will the beneficiary currently possess such clear, nuanced, and certain legal knowledge that they would recognize the errors in the notification of legal consequences.
Finally, the court points out the following:
The determination of a breach of duty by administrative act only reduces the entitlement to payment (§ 31b para. 1 sentence 1 SGB II), the sanction therefore does not constitute a significant change within the meaning of § 48 para. 1 sentence 1 SGB X, which would necessitate a revocation of the grant decision (cf. only Groth/Siebel-Huffmann NJW 2011, 1105, 1109).
Note: See also the post on the blog of attorney L. Zimmermann
Incorrect information regarding legal consequences renders a sanction notice unlawful.
(sociallawexpert.blogspot.com
Part 2 of the Tacheles case law ticker for week 40/2011 can be found here.
