1. Decision of the Federal Social Court of 27.08.2011 on basic income support for job seekers (SGB II)
1.1 – BSG, Judgment of 27.08.2011, – B 4 AS 1/10 R –
Hartz IV – Compensation for unlawful one-euro jobs – no employment relationship – no entitlement to remuneration – public-law claim for reimbursement if the work opportunity lacks additionality – transfer of assets
In a decision dated August 27, 2011 (Case No.: B 4 AS 1/10 R), the 4th Senate of the Federal Social Court ruled that a Hartz IV recipient has no entitlement to wages because her employment was not based on an employment relationship.
During this period, she was instead taking advantage of a work opportunity in exchange for additional compensation; such work does not constitute an employment relationship according to explicit legal regulations. The existence of a work opportunity in exchange for additional compensation is evident from the specific circumstances of how the work came about and how it was carried out.
The work performed at the instigation of the job center constituted a work opportunity with additional expense allowance. This is not a case in which a claim for wages could be possible due to a disconnect between the placement in a work opportunity and entirely different job content.
The increase in assets required for a reimbursement claim is relevant if the work opportunity lacks the "additional" nature of the work. Since the work was then performed in fulfillment of a task that would have had to be carried out in any case, the benefiting job center gained a financial advantage through the saved, but necessary, expenses for fulfilling this task.
Insofar as there has been an increase in assets in this respect, the job center must be credited with the service provided by the plaintiff, irrespective of the fact that the work opportunity was carried out at the Arbeiterwohlfahrt (Workers' Welfare Association).
If the State Social Court concludes that the cleaning work is not additional, it will have to further examine whether this transfer of assets occurred without legal basis.
The legal basis for the transfer of assets is generally a legally binding allocation order or an integration agreement. The allocation letter addressed to the plaintiff cannot be considered an administrative act due to the lack of a conclusive ruling.
The lack of a specific description of the activity to be performed by the person in need of assistance is essential because the job center alone remains responsible for the suitability of the measure in terms of integrating the beneficiary.
Note:
The public-law claim for reimbursement, as a legal institution derived from the general principles of public law, presupposes that, within the framework of a public-law legal relationship, services were rendered without legal basis or other unjustified transfers of assets have taken place. Even without explicit codification, the claimant is granted a right to the return of what has been obtained through the public-law restitution claim, developed largely by analogy to Sections 812 et seq. of the German Civil Code (BGB) (see Federal Social Court (BSG) judgments of April 13, 2011 – B 14 AS 98/10 R, para. 14 et seq., and – B 14 AS 101/10 R, para. 22; BSG judgment of September 29, 2009 – B 8 SO 11/08 R = FEVS 61, 385; as well as BSG judgment of January 30, 1962 – 2 RU 219/59 – BSGE 16, 151, 156 et seq. = SozR No. 1 to Section 28 of the Federal War Victims' Relief Act (BVG); regarding work opportunities under Section 19 of the Federal Social Assistance Act (BSHG), see Federal Administrative Court (BVerwG) judgment of November 20, 1997 – 5 C). 1/96 – BVerwGE 105, 370, 371; BVerwG Judgment of 16.12.2004 – 5 C 71/03 – Buchholz 436.0 § 19 BSHG No. 11).
The application of the public-law claim for reimbursement is not limited to cases in which an authority or an insurance provider has provided a benefit to an insured person or another benefit provider without legal basis. Citizens can also rely on this claim if a transfer of assets has occurred to their detriment and a social security provider receives something to which it is not entitled.
The plaintiff's work performance within the framework of the employment opportunity constitutes an economically valuable service. By performing work within the framework of a work opportunity, the employable person in need of assistance provides the service required for a public-law claim for reimbursement in the sense that establishes the claim, which is defined as a conscious and purposeful increase of another's assets (see in detail Federal Social Court judgment of April 13, 2011 – B 14 AS 98/10 R, para. 17, with reference to BGHZ 40, 272, 277). Even though the primary purpose of performing work within the framework of a work opportunity is to reaccustom employable persons in need of assistance, who have not been employed on the general labor market for a longer period of time, to regular work (see also the Senate's judgment of 16 December 2008 – B 4 AS 60/07 R – BSGE 102, 201 = SozR 4-4200 § 16 No. 4, para. 22), it is – even without an employment contract – a value-creating, altruistic activity ("work") of the person in need of assistance. The purpose of the employment opportunities under Section 16 Paragraph 3 Sentence 2 of the German Social Code, Book II (SGB II), is to create jobs that are "in the public interest," meaning they achieve a specific work result that promotes the common good (see Voelzke in Hauck/Noftz, SGB II, Section 16d, marginal note 40, as of June 2011; Thie in LPK-SGB II, 3rd edition 2009, Section 16d, marginal note 13). The plaintiff worked for the defendant as a cleaner, thus performing an activity that can be classified as "value-adding activity.".
The Senate concurs with the jurisprudence of the 14th Senate of the Federal Social Court (BSG) insofar as the increase in assets required for this claim for reimbursement is present at least when the legal requirement of additionality for employment within the framework of a work opportunity has not been met (BSG judgment of 13 April 2011 – B 14 AS 98/10 R, para. 18).
In accordance with Section 261 Paragraph 2 Sentence 1 of the German Social Code, Book III (SGB III), work is considered additional if it would not be carried out without the funding, not to the same extent, or only at a later date (Federal Social Court judgment of December 16, 2008 – B 4 AS 60/07 R, BSGE 102, 201 = SozR 4-4200 § 16 No. 4, marginal note 27). If the additionality in this sense is lacking, the work is part of the necessary range of tasks of the service provider. The decisive factor is a standard that takes into account the specific activity and the overall circumstances (Voelzke in Hauck/Noftz, SGB II, K § 16d SGB II, marginal note 63b, as of June 2011). Therefore, it will be necessary to examine whether the plaintiff performed tasks that are part of the proper fulfillment of duties due to legal obligations and for which market prices must be paid (Voelzke in Hauck/Noftz, SGB II, K § 16d RdNr 45 ff, as of 6/2011; Harks in jurisPK-SGB II, 3rd edition 2011, § 16d RdNr 33).
If the cleaning work is not considered an additional expense, the intervener cannot, within the framework of a public-law claim for reimbursement, argue that any financial benefit should only be offset between the implementing agency and the plaintiff. If a job center uses (private) third parties to create job opportunities, it cannot claim that any unjustified transfer of assets resulting from the employment did not occur, or not to the same extent, for the job center itself.
In this respect, the standards applicable under civil law regarding unjust enrichment are modified by the principle of legality of administration. Since the interest of the public body must be directed toward eliminating an unjustified transfer of assets and restoring the lawful state of affairs, it is precluded from raising corresponding objections to the public-law claim for restitution (see also regarding the impossibility of an authority invoking unjust enrichment according to the standards of civil law regarding unjust enrichment: Federal Administrative Court judgment of March 12, 1985 – 7 C 48/82 – BVerwGE 71, 85 et seq.; Ossenbühl NVwZ 1991, 513, 520; Maurer, General Administrative Law, 18th ed. 2011, § 29 para. 25 et seq.). In the absence of additionality, the failure to achieve the purpose of the social security benefit relationship between the person in need of assistance and the service provider already justifies the application of the public-law claim for reimbursement (see Voelzke in Hauck/Noftz, SGB II, K § 16d RdNr 63c ff, as of 6/2011; see also the third-party protective character of the additionality criterion with regard to the protection of competitors: BSG judgment of 16.12.2008 – B 4 AS 60/07 R, BSGE 102, 201 = SozR 4-4200 § 16 No. 4, RdNr 28; BSG judgment of 17.12.2009 – B 4 AS 30/09 R, SozR 4-4200 § 31 No. 3, RdNr 21).
If, based on further investigations, the Regional Social Court (LSG) concludes that the legal requirement of additionality for the plaintiff's employment within the framework of a work opportunity was not met and that, therefore, a financial benefit accrued to the joined job center, the benefit was provided without legal basis according to the substantive legal situation governing the public-law claim for reimbursement (Maurer, General Administrative Law, 18th ed. 2011, § 29 para. 24). However, a legal basis for the plaintiff's work performance could nevertheless exist if a legally valid assignment notice or an integration agreement with a specific designation of the work opportunity is available.
While assignments to work opportunities can generally be considered administrative acts within the meaning of Section 31 Sentence 1 of the German Social Code, Book X (SGB X), based on the overall context of the legally prescribed procedure, unlike, for example, offers of training measures (see Federal Social Court judgment of January 19, 2005 – B 11a/11 AL 39/04 R – SozR 4-1300 § 63 No. 2), assignment notices to work opportunities are not merely preparatory official actions serving the actual substantive decision. Rather, the legislator sets a broad framework for the deployment of benefit recipients in additional measures in the public interest, which is to be filled in by the specific content of the work opportunity and the provision of the additional expense allowance (Voelzke in Hauck/Noftz, SGB II, K § 16d SGB II, marginal note 53 et seq., as of June 2011; Federal Social Court judgment of April 13, 2011 – B 14 AS 101/10 R, marginal note 15; Mrozynski, Basic Income Support and Social Assistance, II.4, marginal note 25, as of February 2009). However, this must be distinguished from whether, according to the circumstances of the specific individual case, a regulation within the meaning of Section 31 of the German Social Code, Book X (SGB X) also exists. In interpreting the law (Sections 133, 157 of the German Civil Code (BGB)), one must start from the perspective of a reasonable recipient who takes into account the context that the authority demonstrably considered in its decision.
The work opportunity proposed to the plaintiff encompassed a wide range of possible fields of work, from which the specification of a concrete activity, an essential characteristic of the work opportunity, could not be derived. However, the designation of the specific job to be performed by the person in need of assistance is an indispensable element of the allocation of a work opportunity, because, according to the concept of Section 16 of the German Social Code, Book II (SGB II), the responsibility for verifying the prerequisites of Section 16, Paragraph 3, Sentence 2 of the SGB II lies solely with the basic income support provider. The stipulations of the basic income support provider for job seekers must be sufficiently specific so that the person in need of assistance can make an informed decision about participating in the measure (Federal Social Court [BSG] judgment of April 13, 2011 – B 14 AS 101/10 R, para. 16; cf. regarding the necessary specificity of the proposal for an integration measure in a different context: Federal Social Court [BSG] judgment of December 16, 2008 – B 4 AS 60/07 R, paras. 33 et seq.). However, the intervener merely referred to an interview with the defendant regarding the details of the offered position. Therefore, the Higher Social Court will have to clarify further whether the plaintiff complied with the request for feedback after this interview, whether an integration agreement existed that specified the concrete field of work or the binding nature of participation in a work opportunity (cf. regarding the significance of an integration agreement also judgments of the 14th Senate of the Federal Social Court of 13 April 2011 – B 14 AS 101/10 R, B 14 AS 98/10 R), and/or whether the intervener subsequently reached a final agreement regarding a specific work opportunity to be performed by the plaintiff (cf., e.g., Federal Social Court judgment of 13 April 2011 – B 14 AS 101/10 R, paragraphs 16 et seq.).
juris.bundessozialgericht.de
Note: see also the post on the blog of attorney L. Zimmermann.
Court (BSG), judgments of April 13, 2011 – B 14 AS 98/10 R and – B 14 AS 101/10 R –.
sozialrechtsexperte.blogspot.com
2. Decision of the Federal Social Court of 07.07.2011 on basic income support for job seekers (SGB II)
2.1 – BSG, Judgment of 07.07.2011, – B 14 AS 51/10 R –
More money for Hartz IV recipients - electricity costs for the heating pump - costs of oil tank cleaning as well as boiler and burner cleaning - costs for building insurance and costs for building liability insurance.
With the recently published ruling of the Federal Social Court, recipients of benefits under the German Social Code, Book II (SGB II) can retroactively claim higher benefits for accommodation and heating.
The Federal Social Court (BSG) ruled in its judgment of 07.07.2011, – B 14 AS 51/10 R – that electricity costs for the heating pump are eligible to be considered as further accommodation costs.
The reasonable heating costs, in addition to the reasonable net rent and reasonable ancillary costs, must be determined independently. In order to ensure equal treatment between an owner of a self-occupied property and a tenant in need of assistance, it must be taken into account that the advance payments to be made to the landlord for heating the accommodation include the costs of operating a central heating system.
According to Section 2 No. 4 Letter a of the German Operating Costs Ordinance (BetrKV), this also includes the costs of the electricity used to operate the heating system. The fundamental consideration of these costs within the framework of heating costs for a condominium or a self-occupied single-family home is also necessary because the operation of the heating pump is inextricably linked to the operation of the heating system itself, so that the assumption of corresponding costs must generally be included in the calculation of reasonable heating costs (regarding the consideration of costs for oil tank cleaning as well as boiler and burner cleaning, see Federal Social Court (BSG) judgment of September 19, 2008 – B 14 AS 54/07 R –; see also decision of May 26, 2010 – B 4 AS 7/10 B – para. 8).
However, only actual and documented expenses are eligible for consideration, not general flat rates (cf. regarding the "maintenance expense allowance" BSG judgment of 3 March 2009 – B 4 AS 38/08 R – SozR 4-4200 § 22 No. 17; regarding the flat rate for repair costs, care and maintenance of a motorhome BSG judgment of 17 June 2010 – B 14 AS 79/09 R – SozR 4-4200 § 22 No. 39).
If there is no separate meter or submeter for the electricity used for heating, so that the electricity costs cannot be specifically stated, an estimate would also be possible (cf. Federal Social Court judgment of 20 August 2009 – B 14 AS 41/08 R – para. 27: estimation of the heating cost share, possibly taking into account the utility bills of previous years pursuant to Section 202 of the Social Courts Act in conjunction with Section 287 para. 2 of the Code of Civil Procedure; Federal Court of Justice, default judgment of 20 February 2008 – VIII ZR 27/07 – WuM 2008, 285).
However, ancillary costs in the form of electricity costs for outdoor lighting and garden maintenance are not eligible for consideration as part of accommodation costs. While, in addition to the net rent, reasonable operating costs within the meaning of Section 556 of the German Civil Code (BGB) – with the exception of heating costs – must generally be determined abstractly and included as a factor in the calculation of reasonable accommodation costs (see Federal Social Court (BSG) judgment of October 19, 2010 – B 14 AS 65/09 R –).
However, including the electricity costs claimed here in the calculation of housing costs fails because, even under the former version of Section 20 Paragraph 1 of the German Social Code, Book II (SGB II aF), the standard benefit for a recipient of assistance already includes the costs of household energy (see, fundamentally, the Federal Social Court's judgment of February 19, 2009 – B 4 AS 48/08 R – BSGE 102, 274 = SozR 4-4200 § 22 No. 18).
Note:
Whether the costs for building liability insurance should be included in addition to the costs for building insurance to be taken into account when calculating accommodation costs for home and apartment ownership can remain open.
Even assuming that a building liability insurance policy is generally eligible for consideration (regarding the possibility of deducting such insurance from income, see BSG judgment of 31.10.2007 – B 14/11b AS 59/06 R – para. 20), also considering that costs for liability insurance for the building are chargeable in a tenancy agreement in addition to the costs for building insurance according to § 2 No. 13 BetrKV, there is a lack of concrete costs incurred for the disputed benefit period.
Therefore, the Higher Social Court (LSG) has made a binding determination (§ 163 SGG) that building liability insurance is included free of charge in the plaintiff's private liability insurance. Costs for private liability insurance, in turn, cannot be considered as part of housing costs, but can only be deducted from income to be taken into account pursuant to § 11 para. 2 no. 3 SGB II.
juris.bundessozialgericht.de
Note: see also the post on the blog of attorney L. Zimmermann.
Important note regarding the new legal situation: see Section 20 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), as amended and in force since January 1, 2011.
sozialrechtsexperte.blogspot.com
3. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
3.1 – State Social Court of Saxony-Anhalt, decision of 18 July 2011, – L 5 AS 224/09 NZB –
The waiver of a claim pursuant to Section 44 of the German Social Code, Book II (SGB II) can generally only be made retrospectively and requires a decision by the administrative body (see Federal Social Court (BSG), judgment of May 10, 2011, B 4 AS 11/10 R, para. 19).
A legally valid claim for repayment is therefore a prerequisite for a waiver decision. This decision cannot, therefore, be the subject of legal proceedings.
3.2 – Lower Saxony-Bremen State Social Court, decision of 29 August 2011, – L 6 AS 150/11 NZB –
The appeal is admissible because the Social Court, through its decision, violated the fundamental right of the individual to a lawful judge enshrined in Article 101 Paragraph 1 Sentence 2 of the Basic Law (Federal Constitutional Court NJW 2011, 2191/2192).
The plaintiff's argument that the presiding judge of the 25th Chamber, who was recused due to concerns of bias, had ruled improperly in the judgment on the recusal motion, which was described as inadmissible and completely unfounded, contains the correct complaint of a procedural error within the meaning of Section 144 Paragraph 2 No. 3 of the Social Court Act (SGG).
The purpose of the constitutional guarantee is to prevent the risk of potential interference in the content of a judicial decision, which could arise from the case-specific selection of judges assigned to a case. This is intended to safeguard and preserve the independence, impartiality, and objectivity of the courts. Therefore, Article 101, Paragraph 1, Sentence 2 of the Basic Law obligates the legislature to create a clear and abstract-general system of jurisdiction that designates in advance, for every conceivable dispute, the judge competent to decide it. This is intended to prevent any undue influence on judicial activity, both internal and external. In applying the system of jurisdiction established by the legislature, the courts are obligated to give due consideration to the guarantee and protective effect of Article 101, Paragraph 1, Sentence 2 of the Basic Law. According to the established jurisprudence of the Federal Constitutional Court, Article 101, Paragraph 1, Sentence 2 of the Basic Law also has a substantive guarantee component. The constitutional principle guarantees that, in each individual case, a litigant appears before a judge who is independent and impartial and who ensures neutrality and distance from the parties to the proceedings (Federal Constitutional Court, NJW 2005, 3410/3411 with further references; Federal Constitutional Court, decision of July 20, 2007 – 1 BvR 3084/06, paragraphs 13-15 with further references). The provisions on the disqualification and recusal of judges, Section 60 Paragraph 1 Sentence 1 of the Social Courts Act (SGG) in conjunction with Sections 42 et seq. of the Code of Civil Procedure (ZPO), serve this purpose. A motion for recusal generally results in the challenged judge only being permitted to perform urgent procedural acts before the recusal motion is resolved, Section 60 Paragraph 1 Sentence 1 SGG in conjunction with Section 47 ZPO. This, in principle, excludes the challenged judge from participating in the decision on the recusal motion. This rule of jurisdiction takes into account the fact that, by its very nature, a judge will lack complete inner impartiality and objectivity if he has to decide on the grounds for recusal against him, thus on his own judicial conduct and the question itself of whether this could give a reasonable party cause to doubt his personal impartiality.
Contrary to this principle, only in clear, unambiguous cases of an inadmissible or abusive recusal request should the challenged judge exceptionally not be prevented from further participation, including in the decision on the recusal request, and an elaborate and time-consuming recusal procedure should be avoided (Federal Constitutional Court decision of July 20, 2007, loc. cit., para. 18; Federal Social Court, SozR 4-1500 § 60 No. 6, para. 9). The Federal Constitutional Court has ruled that, provided the requirements for a recusal motion are strictly observed – and only if it is entirely inadmissible or an abuse of process – a self-decision does not conflict with the constitutional guarantee of Article 101, Paragraph 1, Sentence 2 of the Basic Law, because the review does not require an assessment of the challenged judge's own conduct and is therefore not a decision in their own case (Federal Constitutional Court, NJW 2005, 3410/3412). However, a narrow interpretation of the requirements is necessary. A simplified recusal procedure should only allow for purely formal decisions and prevent obvious abuse of the right to recusal. A recusal motion is considered completely inadmissible in this sense if any consideration of the subject matter of the proceedings is unnecessary for its rejection as inadmissible. If, on the other hand, even a minor consideration of the subject matter of the proceedings is required, a recusal motion as inadmissible is precluded. A rejection of the recusal motion nonetheless is then arbitrary. Beyond a purely formal review, a challenged judge may not, by participating in a more detailed substantive examination of the grounds for recusal, effectively become a judge in his own case. These prerequisites for a challenged judge to decide on his own recusal motion are constitutionally mandated by Article 101, Paragraph 1, Sentence 2 of the Basic Law (Federal Constitutional Court, Decision of July 20, 2007, loc. cit., para. 19, with further references to case law). To avoid a potential violation of Article 101, Paragraph 1, Sentence 1 of the Basic Law, such a simplified recusal procedure may not even be extended to situations where the recusal motion is deemed "manifestly unfounded" (Federal Social Court, loc. cit., para. 11).
The contested judgment violates these principles. It was not issued by the legally appointed judge. The Social Court (SG) should clearly not have issued the judgment without first ruling on the recusal motion by the competent Higher Social Court (LSG), pursuant to Section 60 Paragraph 1 Sentence 2 of the Social Court Procedure Act (SGG). This is because the judgment was evidently not a matter requiring immediate action, as per Section 60 Paragraph 1 Sentence 1 of the SGG in conjunction with Section 47 of the Code of Civil Procedure (ZPO). Rather, the challenged judge addressed the plaintiff's arguments regarding recusal due to bias in detail in the judgment and, after this thorough examination, which included his own conduct, deemed the motion "manifestly abusive.".
Note: See also the post on the blog of attorney L. Zimmermann
Pursuant to Section 60 Paragraph 1 of the Social Court Act (SGG) in conjunction with Section 42 Paragraph 2 of the Code of
Civil Procedure (ZPO), a judge may be recused on the grounds of bias if there is a reason that could justify mistrust in their impartiality (see the decision of the Higher Social Court of Saxony-Anhalt of June 29, 2011, – L 6 SF 22/11 AB –). sozialrechtsexperte.blogspot.com
3.3 – North Rhine-Westphalia State Social Court, decision of 22 September 2011, – L 7 B 440/09 AS –
The current recommendations of the German Association for Public and Private Welfare of October 1, 2008, do not eliminate the fundamental obligation of the administration and the courts to investigate the specific circumstances of each case ex officio.
The 2008 recommendations for additional needs do not replace any assessment that may be required in individual cases (BSG, judgment of 10.05.2011 – B 4 AS 100/10; Düring in Gagel, SGB II, § 21 marginal note 31).
The basic prerequisite for applying the 2008 recommendations for additional needs is therefore the determination of whether the specific case fits into the picture of the typical standard case.
A decision on this matter cannot be made based on the contents of the file. As a fundamental prerequisite for a decision regarding the entitlement to additional needs for a costly diet pursuant to Section 21 Paragraph 5 of the German Social Code, Book II (SGB II), the basic income support provider or the court must ensure sufficient information about the medical condition and its specific dietary requirements (here, type 2 diabetes mellitus) (see Federal Social Court (BSG), judgment of April 15, 2008 – B 14/11b AS 3/07 R).
The investigations carried out in the administrative procedure, which are essentially limited to the medical certificate of the indication "diabetes mellitus" for a costly diet, are no longer sufficient for this purpose, at least after the change in assessment that came about with the additional needs recommendations of 2008.
Under the administrative practice prevailing before the publication of the recommendations for additional needs, a doctor's certificate confirming a diabetes diagnosis was generally sufficient to grant additional needs allowances due to the cost of a special diet. The overall clinical picture was irrelevant. Now, however, basic information about the applicant's overall medical condition is required to determine whether the standard case addressed in the recommendations for additional needs applies or whether a specific investigation is necessary. This basic information must be obtained, if necessary, by the administrative body in administrative proceedings and/or by the court in social court proceedings through an official investigation of the facts.
The 2008 recommendation for additional needs has, on the one hand, shown the current state of nutritional medicine, that, among other things, a whole-food diet is generally indicated and sufficient in the case of diabetes mellitus, but on the other hand, it has also focused on examining whether a so-called whole-food diet could be financed from the amount of money that was taken into account when calculating the standard rate for nutrition (recommendations for additional needs preface and under III 2).
A complete diet is defined as a diet that covers the need for essential nutrients (No. 1), takes into account the energy requirements in its energy content (No. 2), considers findings of nutritional medicine for prevention and also for therapy (No. 3) and is adapted in its composition to other dietary habits, insofar as the aforementioned points are not affected (No. 4).
However, it must be taken into account that the typical eating habits of low-income households do not correspond to the characteristics of a balanced diet (see recommendations for additional needs 2008 III 1, III 2). It follows that the data from the Income and Expenditure Survey (EVS 2003) for food, beverages, and luxury goods, which form the basis for setting the standard rates from 2007 onwards, do not represent the costs of a balanced diet.
The nutritional science report commissioned by the German Nutrition Society (DGE; hereinafter referred to as DGE 2008) as part of the preparation of the 2008 recommendations for additional needs concludes that, based on an energy requirement of 2,200 kcal per day, the minimum expenditure for a full diet can be financed from the reference amount for "food, beverages and tobacco products" within the standard ALG II benefit (2008 recommendations for additional needs, DGE 2008 p. 9), whereby the rationalization scheme 2004 underlying the DGE 2008 assumes that the energy requirement "should of course be individually adjusted to the needs of each patient.".
While calorie requirements play no role in determining the standard benefit rate, as this is based solely on the actual expenditures of lower-income groups, the principle of lump-sum calculation precludes the calculation of individual energy requirements based on age, gender, and activity level (Recommendations for Additional Needs 2008 III 2; similarly, Federal Social Court [BSG], judgment of May 10, 2011, loc. cit.). Whether this also precludes individual adjustments to the benefit rate for other reasons, as the BSG assumes in the aforementioned decision, appears doubtful.
In the context of the claim under Section 21 Paragraph 5 of the German Social Code, Book II (SGB II), it must be ensured that an eligible person who, for medical reasons (contrary to typical consumer behavior), is dependent on a full diet, can live with their illness or disability on this (energy requirement basis) (cf. Recommendations on Additional Needs 2008 I 1).
In view of the presented difference in the (statistical) determination of the nutritional approach in the standard benefit and the (expertly determined) average full-food requirement, this may no longer be guaranteed if the beneficiary is dependent on a higher amount of calories due to illness (because of another serious illness in addition to diabetes), which, according to the DGE 2008, could no longer be financed from the standard benefit.
A helpful criterion for deciding on the necessity of additional medical nutrition, taking into account the arguments developed in the 2008 recommendations for additional needs, is therefore the question of whether, in view of the overall health situation of the beneficiary, a reference to a full diet with an energy intake of 2,200 kcal per day is associated with health risks for him/her that could possibly be avoided by a (supplementary) medical diet within the meaning of Section 21 Paragraph 5 of the German Social Code, Book II (SGB II).
sozialgerichtsbarkeit.de
Note: see also the post on the blog of attorney L. Zimmermann.
The current recommendations of the German Association for Public and Private Welfare of October 1, 2008, do not negate the fundamental obligation of the administration and the courts of the social jurisdiction to investigate the specific circumstances of each case ex officio (§ 20 SGB X or § 103 SGG).
sozialrechtsexperte.blogspot.com
3.4 – North Rhine-Westphalia State Social Court, decision of October 7, 2011, – L 19 AS 937/11 NZB –
A single mother receiving Hartz IV benefits is not entitled to additional support for the clothing of her disabled and dependent daughter.
The entitlement to a subsidy for the costs of children's clothing is not an individual entitlement of a parent, but rather an entitlement of the child against the basic income support provider (BSG judgment of 23.03.2010 – B 14 AS 81/08 R, Rn 11).
According to the case law of the Federal Social Court, the costs for clothing are also covered for children as a child-specific, regular need, including the special expenses due to growth and wear and tear, by the standard benefit pursuant to Section 28 Paragraph 1 Sentence 3 No. 1 SGB II in the version up to 31.2010 (BSG Judgment of 23.03.2010 – B 14 AS 81/08 R, Rn 16).
A special allowance for initial clothing provision pursuant to Section 23 Paragraph 3 Sentence 1 No. 2 of the German Social Code, Book II (SGB II) in the version applicable until December 31, 2010 (old version), requires that a need for clothing arises for the first time due to a special circumstance. Costs for ongoing purchase and maintenance of clothing are covered by the standard benefit (Federal Social Court judgment of March 23, 2010 – B 14 AS 81/08 R, para. 16).
According to their clear wording, the regulations concerning additional needs under Section 21 Paragraphs 1 to 5 of the German Social Code, Book II (SGB II) or Section 28 Paragraph 1 Sentence 3 of the German Social Code, Book II (SGB II aF), do not provide for any additional needs due to special expenses for clothing resulting from a disability.
Additional needs according to § 28 para. 1 sentence 3 no. 4 SGB II aF are only available to a disabled child from the age of 15 (BSG judgment of 06.05.2010 – B 14 AS 3/09 R, Rn 19 ff).
Likewise, the conditions for the application of the hardship provision created by the order of the Federal Constitutional Court in the judgment of 09.02.2010 in the case of increased wear and tear of clothing have been clarified (BSG judgment of 23.03.2010 – B 14 AS 81/08 R, Rn 18).
It must be a need that deviates significantly from the average need (BSG judgment of 23.03.2010 – B 14 AS 81/08 R, Rn 18), which occurs continuously and repeatedly; short-term peak demands are excluded.
The benefits provided for in the German Social Code, Book II (SGB II), cover the needs of employable individuals in need of assistance and those living with them in a household unit. Any deviation from this definition of needs is excluded (Federal Social Court judgment of May 10, 2011 – B 4 AS 11/10 R, para. 16 with further references to case law).
Furthermore, the case law of the Federal Social Court has sufficiently clarified that recipients of assistance may have a claim against the social welfare provider under Section 73 of the Twelfth Book of the Social Code (SGB XII) if a special, atypical life situation exists that is closely related to the other situations of need regulated in Chapters Five to Nine of the SGB XII, the so-called "assistance in special life situations" under the Federal Social Assistance Act (BSHG), and at the same time affects the area of fundamental rights (see Federal Social Court judgment of August 19, 2010 – B 14 AS 13/10 R, para. 17f and of May 10, 2011 – B 4 AS 100/10 R, para. 35).
sozialgerichtsbarkeit.de
Note: see also the post on the blog of attorney L. Zimmermann.
Additional clothing-related expenses resulting from increased wear and tear on trousers due to an existing disability-related susceptibility to falls do not give rise to a claim under Section 73 of
the German Social Code, Book XII (SGB XII), for negligible amounts. sozialrechtsexperte.blogspot.com
3.5 – North Rhine-Westphalia State Social Court, decision of October 7, 2011, – L 19 AS 1560/11 B ER –
Exclusion from benefits pursuant to Section 7 Paragraph 1 Sentence 2 No. 2 of the German Social Code, Book II (SGB II) for Bulgarian nationals.
According to the clear wording of Section 7 Paragraph 1 Sentence 2 Number 2 of the German Social Code, Book II (SGB II), foreigners whose right of residence is solely for the purpose of seeking employment, and their family members, are excluded from receiving benefits. The purpose of this new legal provision, introduced by the Act of March 24, 2006 (Federal Law Gazette I 558) effective April 1, 2006, was to exclude foreigners whose right of residence is solely for the purpose of seeking employment, as a result of the implementation of the provisions in Article 24 Paragraph 2 in conjunction with Article 14 Paragraph 4d of Directive 2004/38/EC (Bundestag Printed Matter 16/688, p. 13). As a Bulgarian citizen, the applicant is a foreigner; as already explained, no other purpose of residence than seeking employment is apparent. The applicant is therefore excluded from entitlement to benefits under the SGB II.
The compatibility of the provision of Section 7 Paragraph 1 Sentence 2 No. 2 of the German Social Code, Book II (SGB II) with EU law is controversial in case law, commentary, and the now extensive body of jurisprudence (for example, recent decisions of the Higher Social Court of Berlin-Brandenburg of September 9, 2010 – L 10 AS 1023/10 B ER – and of November 29, 2010 – L 34 AS 1001/10 B ER, and decisions of the Higher Social Court of North Rhine-Westphalia of October 4, 2010 – L 19 AS 942/10 B and of May 17, 2011 – L 6 AS 356/11 B ER – with further references).
The dispute essentially revolves around the question, not yet decided by the highest court, of whether the exclusion from benefits under Section 7 Paragraph 1 Sentence 2 No. 2 of the German Social Code, Book II (SGB II), is covered by the reservation in Article 24 Paragraph 2 of Directive 2004/38/EC, as intended by the legislator, because basic income support benefits under the SGB II are social assistance benefits, or whether they are social security benefits or benefits for integration into the labor market, which are being withheld from EU citizens entitled to freedom of movement in violation of the prohibition of discrimination based on nationality and/or the general prohibition of discrimination. Both the European Court of Justice (ECJ) and the German Federal Social Court (BSG) have left this question open in recent decisions (ECJ judgment of 4 June 2009 – C-22/08 and C-23/08 – Vatsouras/Koupatantze; BSG judgment of 19 October 2010 – B 14 AS 23/10 R).
The Senate also considers the question to be unresolved and grants provisional basic income support benefits under the SGB II to former EU citizens and citizens of the new EU member states who are affected by the exclusion from benefits under Section 7 Paragraph 1 Sentence 2 No. 2 of the SGB II and who are entitled to freedom of movement, after the expiry of the restrictive transitional provisions applicable to the respective states (e.g. decision of 17.02.2010 – L 19 B 392/09 AS ER concerning a British national in possession of a certificate of freedom of movement under Section 5 of the Freedom of Movement Act/EU).
However, as far as can be seen, the entire analysis of the problems identified in Section 7 Paragraph 1 Sentence 2 No. 2 of the German Social Code, Book II (SGB II) specifically concerns cases in which EU citizens with unrestricted freedom of movement rights were lawfully residing in the host country on the basis of a right of residence derived from their status and, moreover, were not adversely affected by the employment prohibition with reservation of permission under Section 284 of the German Social Code, Book III (SGB III) with regard to their integration into the labor market. The applicant does not have the same access to the domestic labor market as German job seekers as long as she does not possess an EU work permit. Therefore, even taking into account the general prohibition of discrimination under the EC Treaty and the Treaty on the Functioning of the European Union (TFEU), there is an objective reason to exclude her from benefits (see also Husmann, NZS 2009, 652 f., 657).
Furthermore, to consider Bulgarian nationals in the applicant's situation as not being excluded from entitlement to basic income support under the German Social Code, Book II (SGB II), would mean ignoring the intent of the contracting parties to the Accession Treaty as well as the intent of the Federal Government in exercising its reserved rights. The non-application or suspension of the general rules and principles of EU freedom of movement for workers in the Accession Treaty has essentially two reasons. The first is the situation of national labor markets. The second reason lies in the anticipated burden of additional social expenditures, because employment and social security are closely linked in most countries (Fuchs, ZESAR 2007, 97 f., 102). Against this background, an interpretation of the legal situation that freedom of movement and access to national labor markets should be temporarily restricted, while social benefits should be made fully accessible, appears to be out of the question.
The Senate therefore sees no reason to question the exclusion of benefits under Section 7 Paragraph 1 Sentence 2 No. 2 of the German Social Code, Book II (SGB II) in the present case under European law or even to refrain from its application, as long as there are no clear indications of the need for a restrictive interpretation in the jurisprudence of the Federal Constitutional Court or the European Court of Justice.
The applicant is also not entitled to provisional benefits – even if only to the extent of reduced benefits analogous to Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) – (cf. the decision of the Higher Social Court of North Rhine-Westphalia of May 30, 2011 – L 19 AS 431/11 B ER – with further references) – based on the state's obligation under Article 1 Paragraph 1 of the Basic Law (GG) and the social welfare principle (Article 20 Paragraph 1, Article 28 Paragraph 1 GG) to guarantee the minimum requirements for a life in human dignity (cf. the decision of the Higher Social Court of North Rhine-Westphalia of May 30, 2011 – L 19 AS 431/11 B ER – with further references) (contra Strick, NJW 2005, 2182, 2185).
This would lead to the prolongation of the applicant's stay in Germany, which is undesirable under the legal system and the principles of the EU Accession Treaty. Article 1, paragraph 1 of the Basic Law (GG) therefore only gives rise to an obligation to provide such benefits as are necessary to enable the applicant to return to her home country if she lacks the means to do so (see the decisions of the Higher Social Court of North Rhine-Westphalia of June 28, 2011 – L 19 AS 317/11 B ER – and of April 16, 2007 – L 19 B 13/07 AS ER = NZS 2008, 104, 105). These are not the subject of the present proceedings.
sozialgerichtsbarkeit.de
Note: see also the post on the blog of attorney L. Zimmermann.
Hartz IV case law is giving lawyers headaches – Romanians and Bulgarians are not entitled to social support in North Rhine-Westphalia – (Off to Lower Saxony or Hesse, says Willi 2.).
sozialrechtsexperte.blogspot.com
sozialrechtsexperte.blogspot.com
3.6 – Berlin-Brandenburg State Social Court, judgment of 11.08.2011, – L 10 AS 1691/10 -, appeal allowed.
The additional needs allowance for single parents may not be denied by the job center on the grounds that they live with other family members (parents, sister) under one roof.
The job center argued that it was unrealistic to expect the benefit recipient's parents to not care for their grandson, for example, when he was ill. The benefit recipient's claim that she rarely, if ever, spoke with her parents about everyday problems, including those concerning the children, was considered even more unrealistic. This was deemed incomprehensible even if they did not live together, and particularly implausible given their living situation, especially since they frequently ate meals together, which would likely involve conversation.
If grandparents, like here, live in the same household with their children and grandchildren, a more intensive relationship inevitably develops through daily interaction than is normally the case with only occasional visits.
The court did not agree with the benefit provider's view, because, according to the wording of Section 21 Paragraph 3 of the German Social Code, Book II (SGB II), the question of whether an additional allowance for single parents is to be taken into account when calculating unemployment benefit II depends on whether the separated parent is solely responsible for the care and upbringing of the child or children.
The regulation does not allow a single parent to be denied additional support based on its purpose and intent, on the grounds that they live with other family members (parents, sister) under one roof.
sozialgerichtsbarkeit.de
See also the post on the blog of attorney L. Zimmermann.
The appeal is granted due to its fundamental importance. Resolving the identified inconsistencies is solely the responsibility of the legislature, which may consider whether it is sensible to maintain the additional needs allowance for single parents, or whether the hardships faced by this population group, which continues to be exposed to a significantly higher risk of poverty, could not be better addressed outside of a means-tested system of subsistence benefits.
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3.7 – Berlin-Brandenburg State Social Court, Judgment of 28 September 2011, – L 18 AS 2132/10 –, Appeal allowed
In the case of reimbursement claims pursuant to Section 328 Paragraph 3 Sentence 2 of the German Social Code, Book II (SGB II), Section 40 Paragraph 2 Sentence 1 of the German Social Code, Book II (SGB II aF) (now Section 40 Paragraph 4 Sentence 1 of the German Social Code, Book II (SGB II)) does not apply.
Section 328 Paragraph 3 Sentence 2 of the German Social Code, Book III (SGB III) is an independent reimbursement provision separate from Section 50 of the German Social Code, Book X (SGB X) (see Federal Social Court (BSG), judgment of August 15, 2002 – B 7 AL 24/01 R -juris), so that Section 50 SGB X cannot be applied. In particular, direct or indirect recourse to Section 50 Paragraph 2 Sentence 1 of the German Social Code, Book II (SGB II) is also precluded. The Federal Social Court had, in its judgment of June 16, 1999 (– B 9 V 4/99 R -juris), affirmed an analogous application of Section 50 Paragraph 2 SGB II to the recovery of benefits that had been paid on the basis of a provisional approval decision due to a (then) existing regulatory gap.
Since there is no room for an analogous application of Section 50 Paragraph 2 of the German Social Code, Book X (SGB X) due to the relevant provision of Section 328 Paragraph 3 Sentence 2 of the German Social Code, Book III (SGB III), the provision of Section 40 Paragraph 2 Sentence 1 of the German Social Code, Book II (SGB II aF), which according to its clear wording refers (only) to Section 50 of the German Social Code, Book X (SGB X), cannot be directly applied to limit a reimbursement obligation based on Section 328 Paragraph 3 Sentence 2 of the German Social Code, Book III (SGB III) due to the inapplicability of Section 50 of the German Social Code, Book X (SGB X).
Section 40, paragraph 2, sentence 1 of the German Social Code, Book II (SGB II aF) is not applicable by analogy. There is no unintended regulatory gap (in the sense of an incompleteness of the law) that would need to be closed by analogy with another legal norm in accordance with the principle of equality and to avoid inconsistencies in legal evaluation (cf. Federal Social Court, SozR 4-5870 § 1 No. 2 with further references). Given that the legislator of the SGB II declared the provision of Section 328 of the German Social Code, Book III (SGB III) applicable by analogy in Section 40, paragraph 1, sentence 2 of the SGB II aF, there is no indication that, in the following paragraph, when regulating the partial exclusion of a claim for reimbursement under Section 50 of the German Social Code, Book X (SGB X), they inadvertently omitted the claim for reimbursement under Section 328, paragraph 3, sentence 2 of the SGB III from this regulation. Furthermore, Section 40, paragraph 2, sentence 1 of the SGB II aF does not require supplementation in light of its purpose. It is indeed true that the person affected by a claim for reimbursement under Section 328 Paragraph 3 Sentence 2 of the German Social Code, Book III (SGB III)
The recipient of benefits is in a similarly "vulnerable" situation as the honest recipient of benefits and potential housing benefit recipients who are being sued under Section 50 of the German Social Code, Book X (SGB X), in the event of the revocation of a final benefit award. However, a corresponding application of Section 40 Paragraph 2 Sentence 1 of the German Social Code, Book II (SGB II) (old version) would only be considered if the recipient of a provisional benefit affected by the recovery claim under Section 40 Paragraph 2 No. 1 of the German Social Code, Book II (SGB II) (old version) in conjunction with Section 328 Paragraph 3 Sentence 2 of the German Social Code, Book III (SGB III) could not reasonably assert the "housing benefit aspect" indicating a reduction of the reimbursement claim without a corresponding application of Section 40 Paragraph 2 Sentence 1 of the German Social Code, Book II (SGB II) (old version).
However, such a "protection gap" does not exist because the beneficiary of a provisional benefit award who is affected by a final rejection of an application for benefits under SGB II pursuant to Section 328 Paragraph 3 Sentence 2 SGB III can subsequently apply for housing benefit.
A gap justifying the corresponding application of Section 40 Paragraph 2 Sentence 1 of the German Social Code, Book II (SGB II), does not exist even if it is assumed that a subsequent housing benefit grant is excluded or that, in individual cases, a lower amount would be granted as housing benefit upon a subsequent housing benefit application than corresponds to the reduction amount according to Section 40 Paragraph 2 Sentence 1 of the SGB II, which is based on the average subsidy rate of the housing benefit rent subsidy.
For the benefit recipient affected by a claim for reimbursement under Section 328 Paragraph 3 Sentence 2 of the German Social Code, Book III (SGB III), the subsidiary possibility remains to completely or partially defeat the reimbursement claim by submitting an application for remission under Section 44 of the German Social Code, Book II (SGB II) (see Social Court Berlin, judgment of November 26, 2010 – S 37 AS 12517/10 –, juris).
According to this provision, benefit providers may waive claims if their collection would be inequitable in the individual case. Inequity for personal reasons can be assumed in particular if the collection of the claim would cause renewed need for the debtor or jeopardize its overcoming, or if, in the event of non-payment of the benefit to be reimbursed, an entitlement to social assistance would have existed and this assistance would subsequently not be paid (see Eicher, in Eicher/Spellbrink, SGB II, 2nd ed. 2008, § 44 para. 14; see also Schmidt-De Caluwe, in NK, SGB III, 3rd ed. 2008, § 328 para. 58 regarding the reduction of discretion to zero when applying the waiver provision of § 76 para. 2 SGB IV, which is comparable to § 44 SGB II, to reimbursement claims under employment promotion law pursuant to § 328 para. 3 sentence 2 SGB III).
Such an inequity can also be assumed if, in the event of non-payment of the "provisional SGB II benefit", there would have been an entitlement to housing benefit and this can no longer be paid subsequently or does not reach the reduction amount according to § 40 para. 2 sentence 1 SGB II aF.
Finally, the different legal treatment of reimbursement claims under Section 50 of the German Social Code, Book X (SGB X) on the one hand and reimbursement claims under Section 328 Paragraph 3 Sentence 2 of the German Social Code, Book II (SGB II) on the other hand does not violate Article 3 Paragraph 1 of the Basic Law (GG).
The appeal on points of law is admissible because the case is of fundamental importance within the meaning of Section 160 Paragraph 2 No. 1 of the Social Courts Act (SGG) with regard to the decisive question of the analogous application of Section 40 Paragraph 2 Sentence 1 of the German Social Code, Book II (SGB II aF) (now Section 40 Paragraph 4 Sentence 1 SGB II).
4. Decisions of the Social Courts on Basic Income Support for Job Seekers (SGB II)
4.1 – Berlin Social Court Decision of 30 September 2011 – S 37 AS 24431/11 ER –
A reduction in benefits for 23 months due to the repayment of a rental deposit loan is unconstitutional.
Because it is incompatible with the savings concept of the German Social Code, Book II (SGB II). The standard benefit rates in effect since 2011 have also not been increased to account for fixed loan repayments of 10% (§ 42a SGB II). Items of need that fall under § 22 SGB II, such as the security deposit, are not included in the standard benefit rate according to § 20 SGB II at all.
The 10% reduction in standard benefits cannot be dismissed as a trivial matter. In its ruling on special needs due to an HIV infection, the Federal Social Court (BSG) considered an amount of €20.45 to be substantial (Judgment of August 19, 2010, – B 14 AS 13/10 R).
The amount of 36.40 euros, and from January 2012 37.40 euros, is significantly above the de minimis threshold of 20 euros total value in dispute indicated in BSG, judgment of 26.05.2011, – B 14 AS 146/10 R.
The reduction of the standard benefit by 10% over a period that is not merely temporary exposes the recipient of a security deposit loan, who has neither additional income nor imminent employment prospects, to a situation that led the Federal Constitutional Court to establish a special needs allowance as an indispensable supplementary benefit to the standard benefit (implemented by the legislator in Section 21 Paragraph 6 of the German Social Code, Book II); it is therefore unconstitutional to reduce the applicant's benefit level for over 20 months to a level that precludes savings or adjustments to the standard benefit.
Securing their subsistence minimum would then only be possible with standard needs loans according to § 24 SGB II, which would prolong the state of insufficient needs for an unforeseeable period.
4.2 – Social Court Detmold Decision of 01.08.2011, – S 18 AS 1684/11 ER –
Jobcenter cannot be compelled by way of preliminary legal protection to approve the absence of the benefit recipient from the local area for three calendar weeks.
The obligation of the respondent to grant consent to the absence from the location by way of an interim injunction is precluded by the fact that consent to the
Absence from the place of residence within the meaning of Section 7 Paragraph 4a SGB II aF is not a final decision on the merits, the issuance of which can be obtained separately through judicial review.
According to Section 77 Paragraph 1 of the German Social Code, Book II (SGB II), Section 7 Paragraph 4a Sentence 1 of the SGB II (old version) in the version applicable until December 31, 2010, remains applicable, as no statutory instrument pursuant to Section 13 Paragraph 3 of the SGB II has yet been issued.
According to Section 7 Paragraph 4a Sentence 1 of the German Social Code, Book II (SGB II aF), benefits under this book are not granted to anyone who, without the consent of their personal contact person, is outside the area defined in the accessibility order of October 23, 1997, as amended by the order of November 16, 2001.
The purpose of this regulation is to establish rules regarding absence from the place of residence. The reference to the accessibility requirement relates to the conditions under which and the duration for which benefit providers for basic income support for job seekers should approve a stay outside the immediate vicinity (Eicher/Spellbrink, SGB II, 2nd edition 2008, § 7 para. 78).
It is assumed that Section 7 Paragraph 4a of the German Social Code, Book II (SGB II aF) does not constitute a positive entitlement requirement for receiving benefits under the SGB II, but rather that an exclusion from benefits should result if the benefit recipient, in the event of a lawful refusal of consent, is located outside the area of immediate time and place (LSG NRW, decision of 22.09.2010, L 9 B 166/09 AS and decision of 14.11.2008, L 12 B 129/08 AS).
If Section 7 Paragraph 4a of the German Social Code, Book II (SGB II aF) is linked to an exclusion from benefits, this provision can only constitute a partial requirement that entitles the benefit provider, if further requirements are met, to revoke benefits already granted. The provision provides no indication that this partial requirement can be decided separately by administrative act. In particular, it does not constitute a legal basis for issuing an administrative act solely addressing the issue of absence from the place of residence. Rather, it is at most a procedural administrative act within the meaning of Section 44a of the Code of Administrative Court Procedure (VwGO), and thus a measure that an authority undertakes or refuses to undertake in proceedings upon application, without concluding the proceedings with a decision on the merits. Here, the respondent has not made a decision as to whether the requirements are met for revoking the benefit award for the period of absence from the place of residence and reclaiming the benefits granted. Instead, it has merely commented on one aspect without a legal basis. Analogous to Section 44a of the Administrative Court Procedure Act (VwGO), legal remedies against administrative procedural acts can only be asserted simultaneously with the legal remedies admissible against the substantive decision (LSG Berlin Brandenburg, decision of 14.04.2008, L 18 B 513/08 AS).
Pursuant to § 44a VwGO analogously, in these cases any form of action, i.e., action for annulment and action for performance, as well as preliminary legal remedies, even in the form of an interim injunction, are excluded, since it is not possible to achieve by way of an interim injunction what would have to be denied by way of an action (Schoch/ Schmidt-Aßmann/Pietzner, Verwaltungsgerichtsordnung, 20th supplementary delivery 2010, § 44a Rn. 20).
The fact that the respondent wrongfully refused consent by means of a formal administrative act does not alter this conclusion. The party affected by the formal administrative act then has a right to its annulment (BSG SozR 4-1200 § 52 No. 1).
However, the incorrectly chosen form of action does not give rise to a claim for the issuance of a formal administrative act corresponding to the applicant's request.
The applicant's request cannot be interpreted as a permissible application for a preliminary injunction that would prohibit the respondent from potentially suspending benefits for the period of the applicant's absence. A corresponding application for a protective order (§ 86b para. 2 sentence 1 of the Social Court Act) fails due to the lack of a qualified need for legal protection.
For a preventive preliminary injunction, a qualified legal interest, specifically aimed at obtaining preventive preliminary legal protection, is necessary. This interest is generally to be denied as long as the applicant can reasonably be referred to the subsequent legal protection that the Social Court Act (SGG) generally considers appropriate and sufficient. This is generally the case if the person seeking legal protection takes preventive action against the issuance of an administrative act.
It is then reasonable to await the administrative action and subsequently seek legal protection. Preventive preliminary legal protection is permissible if waiting for the official action poses a risk of creating irreversible facts and thereby causing irreparable harm (see Baden-Württemberg Higher Social Court, decision of January 31, 2008, L 8 AS 5585/07 ER-B; North Rhine-Westphalia Higher Social Court, decision of June 26, 2006, L 1 B 16/06 AS ER).
sozialgerichtsbarkeit.de
See also the post on the blog of attorney L. Zimmermann.
Note: Contrary commentary on this controversial topic can be found at
sozialrechtsexperte.blogspot.com
Part 2 of the Tacheles case law ticker for week 42/2011 can be found here.
