1. Decisions of the Federal Social Court of 06.10.2011 on basic income support for job seekers (SGB II)
1.1 – The 14th Senate of the Federal Social Court ruled on four appeals concerning basic income support for job seekers on October 6, 2011.
1. BSG, Judgment of 06.10.2011, – B 14 AS 152/10 R –
Moving expenses pursuant to Section 22 Paragraph 3 of the German Social Code, Book II (SGB II a. F.) do not include the deductible of the comprehensive insurance of a rented moving vehicle, because the damage was caused by participation in general road traffic.
2. BSG, Judgment of 06.10.2011, – B 14 AS 94/10 R –
The bridging allowance received after release from prison but before applying for SGB II benefits does not automatically preclude eligibility for benefits in the first month after release from prison.
In this case, the bridging allowance constituted assets at the time of application that were below the basic allowance according to § 12 para. 2 no. 1 SGB II and therefore could not be taken into account as income within the meaning of § 11 SGB II when calculating benefits.
3. BSG, Judgment of 6 October 2011, – B 14 AS 171/10 R –
For a household in which one member receives benefits under the German Social Code, Book II (SGB II), while the other receives basic benefits under the Asylum Seekers' Benefits Act, the reduction rule in Section 20 Paragraph 3 Sentence 1 of the SGB II does not apply.
4. BSG, Judgment of 06.06.2011, – B 14 AS 66/11 R –
A Hartz IV recipient who is addicted to drugs and suffers from schizophrenia is entitled to reimbursement of reasonable renovation costs incurred when moving out of the apartment.
It is irrelevant that a third party has borne the costs in the meantime until the defendant's obligation to perform has been finally clarified.
Source: juris.bundessocialgericht.de
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – North Rhine-Westphalia Decision of 19 September 2011, – L 19 AS 12/11 B –
A benefit recipient suffering from paranoid schizophrenia may be entitled to initial furnishing of her apartment, because due to health and psychological problems, an exceptional situation existed which led to the involuntary destruction of her apartment and household items.
Note: See also the post on the blog of attorney L. Zimmermann
Court (BSG), Judgment of 27 September 2011, – B 4 AS 202/10 R –
sozialrechtsexperte.blogspot.com
2.2 – North Rhine-Westphalia State Social Court, decision of 21 September 2011, – L 19 AS 1111/11 B ER –
The private use portion of a car allocated to business assets must be added to the income and, if necessary, estimated in amount.
The private use portion of a car allocated to business assets must be added to the income and, if necessary, estimated in amount, since the applicant obviously does not keep a logbook and the vehicle, which is allegedly used almost exclusively for business purposes, is currently the only registered motor vehicle of the household.
In this respect, the costs and scope of private and business journeys must be estimated if they cannot be specifically determined (established case law of the tax courts, e.g., decision of the Federal Fiscal Court of 18 February 2008 – XI B 185/07; Geiger, Guide to Unemployment Benefit II, 8th edition, page 347 with further references).
Note: See also the post on the blog of attorney L. Zimmermann
When calculating income from self-employment, estimates may be made for future periods, provided the relevant decisions are issued subject to a reservation of provisionality.
sozialrechtsexperte.blogspot.com
2.3 – North Rhine-Westphalia State Social Court, decision of October 5, 2011, – L 19 AS 1598/11 B –
There is no entitlement to a rental deposit if all of the plaintiff's benefit claims under the German Social Code, Book II (SGB II) have been definitively denied due to lack of cooperation.
This obstacle would have had to be removed before a decision could be made on a claim for benefits within the framework of a pure action for annulment (cf. judgment of the Federal Social Court of 01.07.2009 – B 4 AS 78/08 R -), which is no longer possible due to the expiry of the time limit.
Note: See also the post on the blog of attorney L. Zimmerman
The entitlement to reimbursement of expenses for a rental deposit under Section 22 Paragraph 6 Sentence 1 of the German Social Code, Book II (SGB II) requires that the basic income support provider has issued a commitment to cover these costs before the rental deposit claim arises
(sociallawexpert.blogspot.com).
2.4 – North Rhine-Westphalia State Social Court, decision of 15 September 2011, – L 6 AS 2052/10 B –
Diabetic diets, as well as lipid-lowering and sodium-restricted diets, generally do not require additional nutritional needs.
According to the 2008 recommendations for increased nutritional requirements, in the case of the present conditions, which, according to the general state of human medicine, do not require a specific diet but rather a so-called "normal diet," an increased nutritional requirement is regularly to be denied (page 13).
Such treatment is considered in individual cases (only) in the case of wasting diseases with significant physical effects, such as advanced cancer, HIV/AIDS, multiple sclerosis and severe cases of inflammatory bowel diseases, or diseases with impaired nutrient absorption or utilization.
Note: See also the post on the blog of attorney L. Zimmerman
A prerequisite for receiving additional needs benefits under Section 21 Paragraph 5 of the German Social Code, Book II (SGB II), is a health impairment that necessitates a diet whose costs are higher than those of individuals without this impairment.
(sozialrechtsexperte.blogspot.com
2.5 – North Rhine-Westphalia State Social Court decisions of 28 September 2011, – L 7 AS 1562/11 B ER – and – L 7 AS 1563/11 B –
The alleged lack of additionality of the activity – helping at the food bank – cannot lead to the existence of grounds for an order.
According to the case law of the Federal Social Court (judgment of 13.04.2011, file number: B 14 AS 101/10 R), this could only lead to a claim by the applicant for compensation.
However, whether such a claim actually exists can be reserved for the main proceedings that may have to be conducted.
Note: See also the post on the blog of attorney L. Zimmerman
If recipients of Hartz IV benefits are unlawfully assigned one-euro jobs, they are entitled to back pay of the collectively agreed wage.
sozialrechtsexperte.blogspot.com
2.6 – Hamburg State Social Court Judgment of 08.09.2011, – L 5 AS 50/08 –
Hartz IV – Families do not have to repay ALG II if there is official negligence; they can invoke the principle of legitimate expectation.
The revocation notice is unlawful because the minor plaintiff and/or his legal representatives relied on the validity of the benefit award; their reliance is also worthy of protection under Section 45 Paragraph 2 Sentence 2 of the German Social Code, Book X (SGB X), since they have clearly consumed the benefits provided. Therefore, the revocation is inadmissible under Section 45 Paragraph 2 Sentence 1 of the SGB X.
For the reasons stated by the Social Court, an exclusion of the protection of legitimate expectations pursuant to Section 45 Paragraph 2 Sentence 3 No. 3 of the German Social Code, Book X (SGB X) is not possible.
It cannot be assumed that the plaintiff's parents, who are to be considered as his legal representatives here, were unaware of the illegality of the permit due to gross negligence.
According to the law, gross negligence exists only if the required care has been violated to a particularly serious degree. The law thus takes into account the fact that, in this category of cases, the information provided by the person concerned was accurate and the illegality of the favorable decision is therefore based on official negligence.
Shifting the risk of incorrect decision-making to the beneficiary only appears proportionate if he disregards the simplest and most obvious considerations, i.e., overlooks blatant errors measured against his individual understanding (see Schütze, in: von Wulffen, SGB X, 7th ed. 2010, § 45 para. 54 ff. with further references to the case law of the Federal Social Court and the Federal Administrative Court).
A beneficiary who provides accurate information is not obligated to verify the details of the benefit award notices. However, parties to a social security relationship are obligated to protect each other from harm. This principle dictates that the beneficiary is required to read and acknowledge the notice (Federal Social Court, Judgment of February 2, 2001 – B 11 AL 21/00 R).
Note: An exclusion of the protection of legitimate expectations pursuant to Section 45 Paragraph 2 Sentence 3 No. 3 of the German Social Code, Book X (SGB X) is not applicable for the reasons stated by the Social Court.
sozialgerichtsbarkeit.de
Note: See also the post on the blog of attorney L. Zimmerman
sozialrechtsexperte.blogspot.com
2.7 – Bavarian State Social Court Judgment of August 10, 2011, – L 16 AS 403/09 –
According to the recommendations of the German Association from 2008, additional financial needs for expensive nutrition cannot be ruled out for diseases such as ulcerative colitis, cancer, and morphine therapy for pain syndrome.
Ulcerative colitis and cancer can be among the so-called wasting (consuming) diseases, in which, according to section II.2.4.2 of the recommendations of the German Association, an increased nutritional need may exist in individual cases.
In the case of underweight or a rapid, illness-related weight loss of 5% in three months, an increased nutritional requirement can regularly be assumed in the case of so-called wasting diseases according to section II.2 4.2 of the recommendations of the German Association.
2.8 – Baden-Württemberg State Social Court, Judgment of September 27, 2011, – L 13 AS 4950/10 –, Appeal allowed.
The basic income support provider is not entitled to establish an obligation to provide information to a third party pursuant to Section 60 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II) or Section 60 Paragraph 2 Sentence 1 of the SGB II, if the third party is indeed providing benefits or is obligated to provide benefits, but the recipient of benefits or person entitled to benefits neither actually receives any benefits from the basic income support provider, nor is a member of a household receiving benefits, and their application for benefits under the SGB II has already been definitively rejected by the basic income support provider.
Note: See also the post on the blog of attorney L. Zimmerman
The father's obligation to provide information under Section 60 Paragraph 2 of the German Social Code, Book II (SGB II) does not apply if the son is not actually receiving any benefits from the job center and his benefit application has been definitively rejected.
sozialrechtsexperte.blogspot.com
2.9 – Baden-Württemberg State Social Court, Judgment of 27 September 2011, – L 13 AS 4496/10 –
Hartz IV – Even a blocked account does not protect against asset seizure.
The Baden-Württemberg State Social Court ruled in its judgment of September 27, 2011, – L 13 AS 4496/10 – that
However, the need for assistance did not arise from the fact that the plaintiff used the paid-out building society savings amount to deposit it inaccessibly in a blocked account in order to then use it outside the period in dispute to make a special repayment on the debts resulting from the purchase of the property.
A blocked account is a special type of account that cannot be accessed during a blocking period; only after the blocking period has expired can the account holder access the funds. If the assets are irretrievably inaccessible to the person in need, consideration under Section 12 of the German Social Code, Book II (SGB II) is no longer possible.
If this were the case here, then at least from the time of the deposit into the blocked account, a reduction in assets that must be taken into account in the means test would have occurred (cf. BSG, judgment of 25 May 2005 – B 11a/11 AL 73/04 – R SozR 4-4220 § 6 No. 3 , para. 29).
By converting the asset form of a building savings contract into a money investment in a blocked account, the plaintiff wanted to make the previously usable assets inaccessible and thus remove them from the obligation to realize their value pursuant to Section 12 of the German Social Code, Book II (SGB II).
Although the original intention was to use the sum saved in the building society savings contract to pay off the bank debts associated with the purchase of the house.
However, before servicing other debts, the person in need must first use their available assets to cover the living expenses of the persons living in the household.
He concealed his assets from being liquidated, and did so at a time when he knew that the very existence of these assets had eliminated his need for assistance. Through the agreement with C. Bank, he thus intentionally brought about his own need for assistance.
Although the need for assistance brought about intentionally or through gross negligence also establishes an entitlement to benefits under Sections 19 et seq. of the German Social Code, Book II (SGB II) (see link in Eicher/Spellbrink, SGB II, 2nd edition, Section 34, marginal note 1), this conduct also establishes the obligation to reimburse costs under Section 34 of the German Social Code, Book II (SGB II).
However, this only applies if the provision of benefits was lawful (Link, ibid., para. 10). In the present case, lawful provision of benefits is not possible, because the plaintiff was able to dispose of the money even after the building society savings sum had been deposited into the blocked account, which is why he and the plaintiffs' household are not in need of assistance.
If a person in need of assistance collaborates with their lending bank in such a way that an unassigned building society savings amount is paid out and deposited into a blocked account held at the bank, inaccessible to the person in need, in order to later use the amount to repay debts to that bank (special repayment on a mortgage), and the bank is aware of the person's need for assistance, the agreement to block the account violates public policy and is void pursuant to Section 138 Paragraph 1 of the
German Civil
(See also the blog post by attorney L. Zimmerman.)
Hartz IV recipients must repay their entire unemployment benefit (ALG II) if they have a concealed building society savings contract.
sozialrechtsexperte.blogspot.com
3. Decisions of the Social Courts on Basic Income Support for Job Seekers (SGB II)
3.1 – Social Court Düsseldorf Judgment of 12.09.2011, – S 10 (45) AS 114/07 –
A loss of less than 10% of the premiums paid into the life insurance policy is acceptable without question; it is therefore considered realizable assets (Brühl, in: LPK-SGB II, 3rd edition, § 12, marginal note 56; with reference to: BSG, judgment of 06.09.2007, file number: B 14/7b AS 66/06 R).
3.2 – Social Court Stade Judgment of 05.08.2011, – S 28 AS 452/09 –
Section 31 Paragraph 4 No. 3 b) of the German Social Code, Book II (SGB II) is applicable if the conduct required of the employable person in need of assistance is not already regulated in Section 31 Paragraph 1 of the SGB II and the event relevant to the waiting period occurs at a time when the person in need of assistance has a relationship to the legal sphere of the German Social Code, Book III (SGB III) (cf. Federal Social Court (BSG), judgment of March 22, 2010 – B 4 AS 68/09 R – cited according to juris; Federal Social Court (BSG), judgment of December 17, 2009 – B 4 AS 20/09 R -).
The plaintiff lacks a connection to the legal framework of the German Social Code, Book III (SGB III).
This includes employees who are subject to compulsory insurance for the qualifying period for unemployment benefits under Section 123 of the German Social Code, Book III (SGB III), as employees receiving remuneration under Section 25 Paragraph 1 SGB III, and who are not exempt from insurance as individuals in marginal employment. If only employment exempt from insurance exists, there is no social insurance relationship with the Federal Employment Agency (BA) established through contributions or the accrual of entitlement to unemployment benefits, and thus no connection between the person in need of assistance and the legal framework of the SGB III (see Federal Social Court (BSG), judgment of March 22, 2010 – B 4 AS 68/09 R – cited according to juris). Section 31, paragraph 4, number 3 of the German Social Code, Book II (SGB II) can only be considered equivalent to paragraph 3, letter a) and letter b) if the event relevant to the benefit suspension period occurs at a time when the person concerned is in a social security relationship with the Federal Employment Agency (BA) as the responsible agency under SGB III, particularly because they are engaged in employment subject to compulsory insurance. For the group of persons mentioned in Section 31, paragraph 4, number 3 b) of the SGB II, the benefit suspension period due to job abandonment is therefore the primary consideration. However, persons who have not accrued any periods of insurance under SGB III are not subject to such a regulatory regime.
For them, only the circumstances regulated in § 31 para. 1, para. 2 and para. 4 no. 1 and 2 SGB II apply (cf. BSG, judgment of 17.12.2009 – B 4 AS 20/09 R -).
According to the jurisprudence of the Federal Social Court, which this chamber follows, the application of Section 31 Paragraph 4 Number 3 b) of the German Social Code, Book II (SGB II) is therefore limited to benefit recipients who are in a social insurance relationship with the Federal Employment Agency as the responsible agency under the German Social Code, Book III (SGB III). In the present case, the advertised position at A. was indeed subject to compulsory insurance. However, the plaintiff had not yet commenced this activity; that is, he was not engaged in employment subject to compulsory insurance, so Section 31 Paragraph 4 Number 3 b) of the SGB II is not applicable.
The defendant cannot base his decision on Section 31 Paragraph 1 Sentence 1 No. 1 c) SGB II, as the requirements of this provision are not met.
According to Section 31 Paragraph 1 Sentence 1 Number 1 c) of the German Social Code, Book II (SGB II), unemployment benefit II is reduced by 30 percent of the standard benefit applicable to the employable person in need of assistance under Section 20, without the supplement under Section 24, if the employable person in need of assistance refuses, despite being informed of the legal consequences, to take up or continue reasonable employment, training, a work opportunity, employment subsidized with a transport allowance under Section 16a, a reasonable offer under Section 15a, or any other measure agreed upon in the integration agreement. This does not apply if the employable person in need of assistance demonstrates a valid reason for their behavior.
According to the jurisprudence of the Federal Social Court, which this chamber follows, it is necessary that all measures listed therein be the subject of an integration agreement (see Federal Social Court, judgment of December 17, 2009 – B 4 AS 20/09 R – cited according to juris). This sentence must be understood to mean that the sanction provision of Section 31 Paragraph 1 Sentence 1 No. 1 c) of the German Social Code, Book II (SGB II) can only be applied if the conduct to be sanctioned has been previously regulated in an integration agreement. Both Section 31 Paragraph 1 Sentence 1 No. 1 b) SGB II (refusal to fulfill obligations stipulated in the integration agreement) and Section 31 Paragraph 1 Sentence 1 No. 1 c) SGB II (refusal to accept reasonable employment or any other measure agreed upon in the integration agreement) presuppose violations of obligations stipulated in an integration agreement (cf. BSG, Judgment of 18.02.2010 – B 14 AS 53/08 R -).
Note: See also the post on the blog of attorney L. Zimmerman
If the application for benefits in kind pursuant to Section 31a Paragraph 3 Sentence 1 of the German Social Code, Book II (SGB II) is submitted during the hearing, a decision on this matter must be made simultaneously with the sanction, at least in cases where unemployment benefit II is discontinued, for constitutional reasons.
sozialrechtsexperte.blogspot.com
4. Decisions of the social courts on social assistance (SGB XII)
4.1 – Social Court Heilbronn Judgment of 13.09.2011, – S 11 SO 308/09 –
Granting of social assistance without taking the old-age pension into account as income.
According to Section 2 Paragraph 1 of the German Social Code, Book XII (SGB XII), social assistance is not granted to those who can help themselves primarily through the use of their labor, income and assets, or who receive the necessary support from others, especially from relatives or providers of other social benefits.
The social welfare agency was not allowed to refer the plaintiff, who was legally incapacitated and suffering from, among other things, dementia, to using his old-age pension, to which he actually had no access, before the appointment of a guardian.
For it is necessary to take into account the guiding principle of Section 1 Sentence 1 of the German Social Code, Book XII (SGB XII), according to which the task of social assistance is to enable the beneficiary to lead a life that corresponds to human dignity.
This standard serves as a guiding principle for the solution of specific legal questions concerning the individual benefit areas regulated in the German Social Code, Book XII (Grube/Wahrendorf, SGB XII, § 1 Rn. 7 ,m,wN, in particular regarding the case law of the Federal Constitutional Court).
Source: Harald Thome
5. Reporting deadline: Is a certificate of incapacity for work alone not proof of a "valid reason"?
from lawyer Helge Hildebrandt, Holtenauer Straße 154, 24105 Kiel, Tel. 0431 / 88 88 58 7
Previously, missing an appointment at the Kiel Job Center under Section 59 of the German Social Code, Book II (SGB II) was considered "excused" if a certificate of incapacity for work (AU certificate) could be presented for the day the appointment was scheduled. The Kiel Job Center – like other job centers – has apparently changed this practice. They now require a "certificate of incapacity to travel" from the treating physician. This, along with several calls from somewhat confused individuals in recent days, provides sufficient reason to summarize when missing an appointment is "excused," or, in the words of the law, when there is a "valid reason" for the absence.
Read more here: sozialberatung-kiel.de
6. Discretion of the benefit provider regarding integration services pursuant to Section 16 Paragraph 1 Sentence 2 of the German Social Code, Book II (SGB II)
Commentary on: Federal Social Court, 4th Senate, Judgment of April 6, 2011 – B 4 AS 117/10 R –; Author: Dr. Thomas Harks, Judge at the Regional Court, currently Research Assistant at the Federal Constitutional Court; Source: jurisPR-SozR 20/2011 Note 1
The discretion granted to the basic income support provider with regard to granting an integration measure under the German Social Code, Book III (SGB III), is limited to discretion to decide on the measure, unless the provisions of the SGB III also provide for discretion to select the measure (principle of Juris).
Quote: Problem statement
Read more here: sozialrechtsexperte.blogspot.com
7. Hearing of the Works Council before the Dismissal of an Employee of a Joint Employment Agency – Job Center;
Note on: Federal Labor Court, 6th Senate, Judgment of June 9, 2011 – 6 AZR 132/10; Author: Prof. Dr. Burkhard Boemke; Source: jurisPR-ArbR 39/2011 Note 1
Source: Juris
If an employee of a public employer is assigned by the employer to a joint venture formed in the legal form of a GmbH (limited liability company) to perform services, the works council formed at the joint venture is not to be consulted in accordance with Section 102 Paragraph 1 Sentence 1 of the Works Constitution Act (BetrVG) before the employee is dismissed, but rather the staff council established at the employer's company must be involved (principle from Juris).
Quote: "The decision is correct in its outcome. However, the legal context could have been structured more clearly."
Read more here: sozialrechtsexperte.blogspot.com
8. When assessing eligibility for assistance, can the portion of an applicant's earned income that has been garnished by a garnishment and transfer order be considered as income under Section 11 of the German Social Code, Book II (SGB II)?
In principle, it is not possible to take debt obligations into account under the German Social Code, Book II (SGB II).
However, only readily available funds can be considered as income under Section 11 of the German Social Code, Book II (SGB II). A person entitled to benefits has readily available funds if they can access them quickly and without significant intermediate steps to cover their needs.
Insofar as parts of the earned income are seized on the basis of a garnishment and transfer order, the applicant has no means of disposal over them, i.e., they are not available to him as readily available funds.
Therefore, the seized amount is generally not to be considered as income under Section 11 of the German Social Code, Book II (SGB II) when assessing eligibility for assistance.
The garnishment and transfer order is usually a so-called blanket order. This means that the third-party debtor (here: the employer) is prohibited from paying out wages exceeding the garnishment exemption limits according to Section 850c Paragraph 3 of the German Code of Civil Procedure (ZPO) to the debtor (here: the employee, applicant).
According to Section 850c Paragraph 3 Sentence 2 of the German Code of Civil Procedure (ZPO), reference to the table of attachment exemption limits in Section 850c Paragraph 3 ZPO is sufficient. The employer is responsible for independently determining the specific attachable income. Therefore, the applicant will always receive income up to the attachment exemption limit.
If, in an individual case, the garnishment of income results in increased need for assistance, the applicant shall be required to apply to the enforcement court for an increase in the exempt amount (§ 850f para. 1 letter a of the Code of Civil Procedure).
Example:
Family with 3 children (15, 16, and 17 years old).
Needs according to SGB II: €2,225
Income of the person receiving benefits: €2,000 Less
: Allowance § 11b: €330
—————-
To be taken into account: €1,670
Child benefit (2 x €184 + 1 x €190): €558
—————-
Total income: €2,228
No need exists!
According to the table in Section 850c of the German Code of Civil Procedure (ZPO), with a net income of €2,000 and four dependents, €5 is subject to garnishment. Taking this amount into account, the individual would be considered in need of assistance. An application must be made to increase the exempt amount.
Variant:
The person in need lives with their partner and her three children (ages 15, 16, and 17) in a shared household.
Needs according to SGB II: €2,225
Income of the person in need: €2,000
. Less: garnished amounts according to § 850c ZPO: €680
(no maintenance obligation)
. Less: allowance according to § 11b: €330.
credited
: €990
child benefit (3 x €154): €558.
Total
income: €1,548.
Need exists!
Since there is no maintenance obligation towards the persons in the BG, an increase in the non-attachable amount is not possible according to § 850 c ZPO.
The seized amounts must not be considered income, as they are not readily available funds.
Source: Knowledge database of the Federal Employment Agency (BA) § 11 SGB II, amended on 06.10.2011
Note: See also the post on the blog of attorney L. Zimmerman
According to the jurisprudence of the Federal Constitutional Court, only the actual circumstances are relevant, not any fictitious circumstances (the "principle of immediacy," see decision of May 12, 2005 – 1 BvR 569/05, Breithaupt 2005, 803).
sozialrechtsexperte.blogspot.com
Author of the legal case ticker: Willi 2 from Tacheles
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
