7. Decisions of the social courts on social assistance (SGB XII)
7.1 – Freiburg Social Court Judgment of 27 July 2011, – S 6 SO 6485/09 –
According to Section 90 Paragraph 1 of the German Social Code, Book XII (SGB XII), all realizable assets must be used. These assets also include the right to reclaim gifts under Section 528 of the German Civil Code (BGB).
Such a claim is not excluded here under § 529 para. 1 of the German Civil Code (BGB).
Note: See also the post on the blog of attorney L. Zimmermann
The court thus concurs with the jurisprudence of the Federal Court of Justice regarding Section 2325 Paragraph 3 of the German Civil Code (BGH, Judgment of April 27, 1994 – IV ZR 132/93, BGHZ 125, 395 et seq.). Beyond the comparable wording of the provisions, the interests at stake therein are, contrary to the plaintiff's view, transferable to the claim for the return of a gift – at least in the constellation at issue here, namely the impoverishment of the donor and the resulting recourse against the social welfare agency (similarly: Gühlstorf/Ette, ZfF 2008, 13 et seq.; Littig/Mayer, Sozialhilferegress gegen Erben und Beschenkten [Social Welfare Recourse Against Heirs and Donees], 1999, para. 76).
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7.2 – Augsburg Social Court Judgment of 15 September 2011, – S 15 SO 73/11 –
A recipient of benefits under the German Social Code Book XII (SGB XII) does not have to dispose of his motor vehicle worth EUR 8,500.
In individual cases, it is justified to generally refer to the limit of EUR 7,500 established by the Federal Social Court (BSG) in its judgment of 06.09.2007 (B 14/7b AS 66/06 R) with regard to the extent to which a motor vehicle on which the person in need of assistance is dependent due to his disability.
For reasons of legal certainty and equal treatment, it appears appropriate to apply the value of EUR 7,500 established in Section 12 Paragraph 3 No. 2 of the German Social Code, Book II (SGB II) to cases of motor vehicle ownership that is eligible for social assistance, at least when there are no indications in the individual case that a different assessment is necessary.
Such factors could increase the value, particularly in the case of a vehicle being equipped to be suitable for people with disabilities.
One indication for reducing the amount could be, for example, a foreseeable short-term reliance on the motor vehicle.
Generally, motor vehicles are not considered assets worthy of protection while receiving social assistance. The legislator has only explicitly addressed the case where a motor vehicle, like other assets, is necessary for taking up or continuing employment. Otherwise, whether a motor vehicle is protected as an asset depends on the individual case.
As the plaintiff rightly pointed out, this is also the essential difference to the German Social Code, Book II (SGB II), where the legislator's objective is to expect employable persons in need of assistance to make every effort to end their need for assistance by taking up employment. It would not be conducive to these objectives if motor vehicles had to be liquidated before the commencement of benefits under SGB II, as this would certainly hinder integration into the labor market and the taking up of employment. Against this background, according to Section 12 Paragraph 3 No. 2 of SGB II, a suitable motor vehicle for each employable person living in the household is not to be considered an asset.
However, there have always been cases in the past where, taking into account the corresponding provisions in the Federal Social Assistance Act (BSHG), exceptions to the general obligation to utilize existing assets were granted (see, for example, the Bavarian Administrative Court of Appeal, judgment of December 2, 1983 – 12 B 83 A. 618, and the Hamburg Higher Administrative Court, judgment of December 20, 1994 – Bs IV 196/94). All of these cases involved individual decisions considering the specific circumstances of each case in relation to the particular vehicle. Accordingly, the plaintiff argues in the present case that the intervener could also meet his disability-related needs with a less expensive vehicle.
These considerations appear fundamentally permissible. Unlike the German Social Code, Book II (SGB II), the German Social Code (SGB XII) makes no distinction as to whether a motor vehicle is appropriate or inappropriate; the decisive factors are indeed the individual's life situation and the specific vehicle. However, the court nevertheless maintains that, in individual cases, it is justified, at least as a rule, to refer to the limit of €7,500 established by the Federal Social Court (BSG) in its judgment of September 6, 2007, regarding the extent to which a motor vehicle on which the person in need of assistance depends due to their disability may be used.
The assessment of a hardship case according to these principles also requires two conceptual steps. First, it must be determined whether and for what purpose someone is dependent on a motor vehicle and whether these purposes are eligible for social assistance. Second, it must be examined whether retaining the specific vehicle is necessary for this purpose. Accordingly, in this case, the plaintiff, through the State Health Office, first clarified the extent to which the intervenor is dependent on owning a motor vehicle; then, the office examined what requirements must be met by a motor vehicle in light of this need and whether owning this specific vehicle is compatible with the living conditions of a recipient of benefits under Book XII of the German Social Code (SGB XII).
Section 12 Paragraph 3 Number 2 of the German Social Code, Book II (SGB II) does not stipulate anything different, as it states that, even considering the general assumption under SGB II that an employable recipient of assistance needs a motor vehicle for job searching or taking up employment, only a suitable vehicle is protected. Therefore, it is permissible to use the vague term "suitable" in Section 12 Paragraph 3 Number 2 of SGB II to answer the question of up to what equipment level or value limit the ownership of a motor vehicle for purposes generally recognized under social assistance law is still compatible with the living conditions during the receipt of benefits under SGB XII.
The Federal Social Court (BSG) has clarified in several rulings that the material living conditions of benefit recipients under the German Social Code, Book II (SGB II) and Book XII (SGB XII) are not different, and that, to avoid unequal treatment, similar situations must be regulated in the same way (BSG, Judgment of May 19, 2009 – B 8 SO 8/08 R). In particular, it is therefore impermissible to argue that, for example, benefit recipients under SGB II are entitled to a mid-range car, while benefit recipients under SGB XII are only entitled to a small car.
Although, starting from a value of EUR 8,500 stated by the intervener himself when the application was submitted in November 2008, this value limit is initially exceeded, with the consequence that the vehicle can no longer be considered appropriate in principle.
The defendant rightly points out in his decision that the Federal Social Court (BSG) also ruled on this case in a manner applicable to the German Social Code, Book XII (SGB XII). Specifically, it ruled that the amount exceeding the reasonable limit (here, €1,000) must still be assessed from the perspective of exhausting the allowance limits for cash assets. This is because, insofar as the proceeds from the sale of the vehicle would be protected as cash assets at the moment of sale, this would not lead to the termination of the need for assistance. These principles are also fully applicable to the SGB XII. In particular, the intervener would still have been in need of assistance even if he had sold the vehicle, purchased a suitable vehicle, and invested the difference as cash.
8. Burden of proof in case of alleged violation of the principle of economic efficiency in operating cost accounting
Commentary on: Federal Court of Justice (BGH) 8th Civil Senate, Judgment of July 6, 2011 – VIII ZR 340/10, Author: Klaus Schach, Attorney at Law, Presiding Judge of the Regional Court (ret.),
Source: jurisPR-MietR 19/2011 Note 1, Editor: Norbert Eisenschmid, Attorney at Law
Source: Juris
Burden of proof in case of alleged violation of the principle of economic efficiency in operating cost accounting
Guiding principles (from Juris)
1. The tenant bears the burden of proof for a violation of the principle of economic efficiency in the landlord's billing of operating costs.
2. The tenant does not meet his burden of proof by claiming that a cost item in the landlord's operating cost statement exceeds the average cost item determined nationwide for apartments of comparable size.
3. The landlord is generally not subject to a secondary burden of proof regarding the factual basis of his operating cost calculation.
Implications for practice
The Federal Court of Justice (BGH) consistently adheres to its established practice: Tenants are obligated to substantiate their objections to utility bills and must inspect the relevant supporting documents. If necessary, they can also request information from the landlord (BGH, Judgment of October 25, 2006 – VIII ZR 251/05 [regarding the advance deduction of commercially related operating costs]). In accordance with general procedural principles, the landlord must then respond substantively to a sufficiently detailed statement of facts by the tenant. Failure to do so may result in the tenant's statements being deemed undisputed.
Note: See also the post on the blog of attorney L. Zimmermann
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Author of the legal case ticker: Willi 2 from Tacheles
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
