1. Decision of the Federal Social Court of 26 May 2011 on basic income support for job seekers (SGB II)
1.1 – BSG, Judgment of 26.05.2011, – B 14 AS 93/10 R –
No Hartz IV benefits for city councilor
A city councilor and honorary local mayor must have her received remuneration counted as income when applying for ALG II (unemployment benefit II).
The compensation paid for the mandate activity (even partially) is a designated income that is not taken into account in the Hartz IV calculation.
The compensation paid for being a local mayor and city councilor is, in principle, income from gainful employment.
The contributions paid by elected officials are not considered necessary expenses related to earning income, as there is no legal or parliamentary obligation to pay these contributions. Rather, the obligation to pay arises – like the payment of membership dues to the party itself – from the statutes of the respective party.
The same applies to contributions to the local civic and shooting club.
Such expenses may generally be expected of a local mayor, but they do not fall under the definition of advertising expenses and are therefore neither tax-exempt under Section 3 No. 12 of the Income Tax Act nor recognized as advertising expenses under Section 11 Paragraph 2 No. 5 of the Social Code, Book II, in conjunction with Section 3 No. 3 of the Unemployment Benefit II Ordinance.
Note: See also the post on the blog of attorney L. Zimmermann
Lower court: Saxon State Social Court – L 7 AS 25/07 – , judgment of 17 May 2010
sozialrechtsexperte.blogspot.com
2. Decision of the Federal Social Court of 09.06.2011 on social assistance (SGB XII)
2.1 – BSG, Judgment of 9 June 2011 – B 8 SO 11/10 R –
Where does the State Social Court get sufficient expertise on treatment options for allergies – cow's milk and egg white allergies – Are judges doctors – Additional needs for nutrition – Federal Social Court shows the right way and criticizes State Social Court.
In its judgment of June 9, 2011 – B 8 SO 11/10 R – the Federal Social Court (BSG) ruled that the Higher Social Court (LSG) must also examine whether the plaintiff is entitled to (higher) benefits due to additional nutritional needs. In doing so, it will have to conduct further investigations – regardless of whether a procedural defect was properly raised, due to the remand of the case being necessary in any event.
According to Section 42 No. 3 in conjunction with Section 30 Paragraph 5 of the German Social Code, Book XII (SGB XII), an additional allowance of an appropriate amount is granted to sick, convalescent, disabled, or at-risk individuals who require a special diet. If a benefit recipient has multiple illnesses for which an additional allowance for a special diet is claimed for medical reasons, the nutritional costs must be specifically determined based on the entire clinical picture (BSGE 100, 83 ff., paragraphs 39 ff. = SozR 4-4200 § 20 No. 6).
The decisive factor is always the amount that can compensate for the medically justified, actual costs of a diet not covered by the standard benefit. This must be determined on a case-by-case basis through official investigation by obtaining medical and/or nutritional statements or expert opinions (BSG SozR 4-4200 § 21 No. 2 para. 28).
The LSG merely stated regarding the alleged cow's milk and egg white allergies that these were unlikely at the plaintiff's age, and that the latter could also be treated by omitting the food.
Apart from the fact that it is not clear where the LSG (Landessozialgericht – State Social Court) gets its sufficient expertise on treatment options for allergies, it is not decisive for a nutritionally related additional effort whether a certain food can be omitted from the diet; this is self-evident in the case of an allergy to a specific food.
The crucial question is whether and with which foods it needs to be replaced, and whether this results in additional costs.
If – as the LSG rightly assumes – a general certificate from the family doctor is unsuitable for proving the additional needs, it would have been advisable to conduct further investigations into any additional needs and not to consider the individual allergy in isolation.
Rather, the assessment of dietary requirements must consider the entire clinical picture, taking into account the reciprocal effects of the illnesses (allergies) on nutrition. In light of the principle of official investigation (§ 103 SGG), the Higher Social Court (LSG) could not simply refrain from conducting the necessary investigations on the grounds that the plaintiff himself had not specified which foods he would have to forgo and which he would have to purchase instead, and that this would entail additional costs. In this case, it would have been advisable to obtain an expert opinion from a nutritional scientist.
The Federal Social Court (BSG) also ruled as follows:
An adult social assistance recipient who lives in the same household as her mother is entitled to have her benefits calculated taking into account the standard rate for a head of household at 100%, because she does not form a household community or a community of need with her mother within the meaning of Section 19 of the German Social Code, Book XII.
Whether a different assessment is required for the period from 1 January 2011 onwards with regard to the provisions of the Standard Needs Assessment Act of 24 March 2011 (Federal Law Gazette I 453) does not require a decision here.
Note: See also the post on the blog of attorney L. Zimmermann
Federal Social Court (BSG), Judgment of 24 February 2011, – B 14 AS 49/10 R-
A claim for additional needs due to a costly diet under Section 21 Paragraph 5 of the German Social Code, Book II (SGB II) due to a paraben allergy may exist, because the assumption that even with strict avoidance of foods containing the allergen, no further costs would arise with regard to a balanced diet cannot be presumed to be common knowledge of the court.
(sociallawexpert.blogspot.com
Note: See also the post on the blog of attorney L. Zimmermann
BSG, Judgment of 09.06.2011, – B 8 SO 1/10 R –
An adult recipient of social assistance is entitled to have her benefits calculated based on the standard rate for a head of household at 100%, because she does not form a household unit or a community of need with her mother and brother within the meaning of Section 19 of the German Social Code, Book XII (SGB XII).
(sozialrechtsexperte.blogspot.com
3. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
3.1 – Hessian State Social Court decision of 30.09.2011, – L 7 AS 614/10 B ER –
The benefit provider may only decide on the reduction pursuant to Section 31 of the German Social Code, Book II (SGB II) as amended by the Act of 10 October 2007 (Federal Law Gazette I 2326) – SGB II F. 2007 – without simultaneously granting supplementary benefits in kind or cash benefits pursuant to Section 31 Paragraph 6 Sentences 3 and 4 of the German Social Code, Book II (SGB II) F. 2007, if
a) the decision regarding the supplementary services is not yet ready for a decision,
b) the reduction notice contains a statement that adequately informs the person in need that supplementary benefits may be provided upon their application,
c) supplementary benefits can still be provided at the beginning of the reduction period upon timely application by the person in need of assistance.
However, in the Senate's view, it is harmless that the respondent has not yet provided supplementary benefits in kind or in cash pursuant to Section 31 Paragraph 6 Sentences 3 and 4 of the German Social Code, Book II (SGB II) as amended in 2007, in the reduction notice itself (a uniform decision is mandatory: Higher Social Court of Saxony-Anhalt, 5 January 2011 – L 2 AS 428/10 B ER; Higher Social Court of Lower Saxony-Bremen, 21 April 2010 – L 13 AS 100/10 B ER; Higher Social Court of North Rhine-Westphalia, 9 September 2009 – L 7 B 211/09 AS ER; Higher Social Court of Berlin-Brandenburg, 16 December 2008 – L 10 B 2154/08 AS ER; Berlit in LPK-SGB II, Section 31, marginal note 146; contra: Higher Social Court of Saxony-Anhalt, 31 August 2009 – L 5 AS 287/09 B ER; LSG Berlin-Brandenburg 8.10.10 – L 29 AS 1420/10 B ER; LSG North Rhine-Westphalia, 10.12.2009 – L 9 B 51/09 AS ER; LSG North Rhine-Westphalia, 16.11.2009 – L 5 AS 365/09 B ER). While, apart from atypical cases, the benefit provider must provide such benefits if the standard benefit is reduced by more than 30% and the person in need lives in a household with minor children, otherwise, the decision is to be made at the provider's discretion according to sentence 3 of the regulation. If the supplementary benefits are intended to cover the necessary subsistence minimum of the person in need, possibly including minor children, the benefit provider must also ensure that these benefits are available from the beginning of the reduction period. It should be noted, however, that further investigations may be necessary for the provision of supplementary benefits, which may not yet allow for a final decision at the time the reduction is decided. If the decision regarding the reduction and the provision of benefits in kind or cash equivalents is not ready for a decision at the same time, the benefit provider may make a decision in a phased procedure, provided that the supplementary benefits can still be provided in time for the start of the reduction period and that the benefit provider explicitly refers to the supplementary benefits in the reduction notice in a way that informs the recipient of assistance about their benefit entitlements in a sufficiently understandable manner.
This is the case here because the respondent informed the applicant in the reduction notice that supplementary benefits would be granted upon request, there was no indication that the applicant would be unable to take note of the information and act accordingly, and there was still just enough time to provide the supplementary benefits at the beginning of the reduction period upon the applicant's request – as the first food voucher of August 2, 2010 illustrates.
Note: See also the post on the blog of attorney L. Zimmermann
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 already submitted during the hearing, a decision on this matter must be made simultaneously with the sanction, at least in the case of the cessation of unemployment benefit II, for constitutional reasons.
The Social Court of Würzburg ruled accordingly in its decision of August 29, 2011, – S 15 AS 560/11 ER –.
sozialrechtsexperte.blogspot.com
3.2 – State Social Court of Saxony-Anhalt, decision of 05.09.2011, – L 5 AS 332/11 B ER –
The legal interest in obtaining the requested preliminary assurance under Section 22 Paragraph 4 of the German Social Code, Book II (SGB II) ceases at the latest when the applicants move into the new apartment.
An appeal is inadmissible if the appellant no longer has a legitimate interest because further legal action in these proceedings no longer brings him any legal or factual advantages and the objective of legal protection can no longer be achieved (see also: Federal Social Court (BSG), judgment of April 6, 2011, B 4 AS 5/10 R (14) in the case of an action for annulment and performance seeking the issuance of an assurance pursuant to Section 22 Paragraph 2 Sentence 1 SGB II as amended up to December 31, 2010, after a relocation).
According to Section 22 Paragraph 4 of the German Social Code, Book II (SGB II nF), which corresponds in content to Section 22 Paragraph 2 of the German Social Code, Book II (SGB II aF), before concluding a contract for new accommodation, the employable person entitled to benefits should obtain the assurance from the local authority previously responsible for providing benefits that the expenses for the new accommodation will be taken into account.
Following the relocation, the amount of housing costs to be paid by the respondent must be determined in separate proceedings concerning the granting of higher benefits or within the framework of the application for continued benefits. As a preliminary issue for a claim to higher, reasonable housing costs, the necessity of the relocation and the appropriateness of the new accommodation costs must necessarily be clarified (BSG, ibid., (15)).
The assurance sought here is not a prerequisite for a claim to higher housing costs.
Moving into new accommodation without prior approval from the social security provider will not have any adverse consequences, provided the move is necessary and the new housing costs are reasonable. The purpose of the approval is not to make the move possible in the first place.
Their task is merely to ensure, in a preliminary procedure, that the housing costs for the new accommodation will be covered in the future (see also LSG North Rhine-Westphalia, decision of 17 January 2011, L 6 AS 1914/10 B ER; LSG Berlin-Brandenburg, decision of 21 July 2008, L 26 B 807/08 AS ER; LSG Lower Saxony-Bremen, decision of 5 June 2008, L 9 AS 541/06; LSG Mecklenburg-Western Pomerania, decision of 22 July 2008, L 10 B 203/08).
Once the move has taken place, there is no longer any legal interest in obtaining a separate assurance as a preliminary partial ruling (BSG, loc. cit., (14)). The appropriateness of the new housing costs is subject to review during the now necessary adjustment of the benefit notices pursuant to Section 48 of Book Ten of the Social Code – Social Administrative Procedure and Social Data Protection (SGB X) or the continued granting of benefits under Book Two of the Social Code (SGB II).
The move was already carried out before the complaint was filed. Therefore, for the reasons stated, there is no legal interest in pursuing the appeal.
The objection that, without a prior commitment, reimbursement of moving costs pursuant to Section 22 Paragraph 6 Sentence 1 of the German Social Code, Book II (SGB II) would not be possible does not alter this assessment. After the move has been completed, the incurred costs can be quantified and claimed from the respondent, and, if necessary, pursued in court after rejection and completion of the appeal process.
Note: See also the post on the blog of attorney L. Zimmermann
If a move is necessary, you are entitled to approval for cost coverage before the move through an expedited procedure.
sozialrechtsexperte.blogspot.com
3.3 – State Social Court of Saxony-Anhalt, decision of 31.08.2011, – L 5 AS 328/11 B ER –
Heating is usually not used from May to September, so debt assumption for gas debts under Section 22 Paragraph 8 of the German Social Code, Book II (SGB II) is not possible
Acceptance of a claim amounting to EUR 9,573.57 was rejected.
No assumption of gas debts according to § 22 para. 8 SGB II if the benefit recipient has behaved abusively.
There is no imminent threat of homelessness within the meaning of sentence 2 of this provision. However, the applicability of sentence 1 of the provision is conceivable here. A (threatened) power cut, for example, can be considered a comparable emergency, since the use of household energy directly affects the housing situation of a household receiving benefits (cf., correspondingly, Lower Saxony-Bremen Higher Social Court, decision of May 28, 2009, L 7 AS 546/09 B ER, North Rhine-Westphalia Higher Social Court, decision of December 12, 2008, L 7 B 384/08 AS, both cited according to Juris). It is not entirely clear in all cases whether this also applies to a gas supply interruption (affirmative: Eicher/Spellbrink, Grundsicherung für Arbeitsuchende, 2nd ed. § 22, Rn. 105; see also the Senate's decision of July 7, 2011, L 5 AS 177/11 B ER).
Because both the water for washing and the rooms themselves can be heated with electricity. However, this can remain an open question.
In exercising discretion, a comprehensive assessment must be made of all the circumstances of the individual case, namely the amount of the arrears, their causes, the age and any disabilities of the respective members of the household threatened with energy disconnection, as well as the applicant's past conduct (first-time or repeated arrears, their own efforts to avert the emergency and settle the arrears) and a discernible willingness to help themselves. In particular, it may be crucial whether the beneficiary has acted abusively. This is generally to be affirmed if they deliberately fail to make their energy cost prepayments and their conduct suggests that they relied on or even speculated upon the benefit provider to assume the resulting debts as a loan. In such a case, the emergency is intentionally created at the expense of the benefit provider. However, this cannot be accepted (see also LSG Lower Saxony-Bremen, decision of June 9, 2010, L 13 AS 147/10 B; LSG Rhineland-Palatinate, decision of December 27, 2010, L 3 AS 557/10 B ER, both available on Juris).
The providers of basic income support must not become the “guarantor of default for energy supply companies” (LSG Saxony-Anhalt, decision of September 19, 2007, L 2 B 242/07 AS ER).
Furthermore, there is no ground for an injunction. In light of Article 19 Paragraph 4 of the Basic Law (GG), the legal remedy of preliminary legal protection has the purpose of guaranteeing effective legal protection in cases where a decision in the main proceedings, which generally take precedence, would lead to serious and unreasonable disadvantages that cannot be averted in any other way and which the decision in the main proceedings would no longer be able to remedy subsequently (cf. Federal Constitutional Court, decisions of November 22, 2002, 1 BvR 1586/02, NJW 2003 p. 1236 and of May 12, 2005, 1 BvR 569/05, Breithaupt 2005, p. 803). This also means, however, that grounds for an injunction are lacking if the anticipated duration of the main proceedings does not pose a risk to the realization and enforcement of the legal rights, i.e., if the applicant would still be helped by a later realization of their rights. While benefits under the German Social Code, Book II (SGB II), are generally intended to secure the applicant's subsistence level, if the benefits provided by the agency do not cover the applicant's needs, the recipient's existence is temporarily jeopardized. However, not every shortfall in coverage of needs necessarily constitutes a threat to existence and thus grounds for an injunction. A situation of existential hardship is required.
This is not currently apparent. The current weather conditions do not render houses without heating uninhabitable. At least at the beginning of the heating season, given the overall circumstances of the case, it is temporarily reasonable to expect the applicants to make do with hot water prepared using a cooking pot or kettle for washing (see the Senate's decision of July 7, 2011, L 5 AS 177/11 B ER).
Therefore, there is no need for the costly purchase of special equipment suitable for hot water preparation.
sozialgerichtsbarkeit.de
Note: see also the post on the blog of attorney L. Zimmermann.
Hartz IV recipient has been without power since May 12, 2011 – electricity cut-off – no assumption of electricity debts.
sozialrechtsexperte.blogspot.com
4. Decisions of the Social Courts on Basic Income Support for Job Seekers (SGB II)
4.1 – Social Court Berlin Judgment of 15 July 2011, – S 91 AS 38168/09 –
Section 40 Paragraph 2 Sentence 1 SGB 2 (in the version valid until 1 April 2011) is not to be applied analogously to a termination of benefits pursuant to Section 328 Paragraph 3 Sentence 2 SGB 3 (in conjunction with Section 40 Paragraph 1 SGB 2).
sozialgerichtsbarkeit.de
Note: see also the post on the blog of attorney L. Zimmermann.
In the case of reimbursement claims pursuant to Section 328 Paragraph 3 Sentence 2 of the German Social Code, Book III (SGB III), 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.
This was the ruling of the Berlin-Brandenburg State Social Court in its judgment of September 28, 2011, – L 18 AS 2132/10 –
sozialrechtsexperte.blogspot.com
4.2 – Stuttgart Social Court, decision of October 7, 2011, – S 25 AS 5506/11 ER –
Trainees are entitled to receive benefits in the form of a loan under the German Social Code, Book II (SGB II), in accordance with Section 27 Paragraph 4 Sentence 2 of the SGB II.
Section 27 paragraph 4 sentence 2 of the German Social Code, Book II (SGB II) is also applicable if BAföG benefits for the month of the training measure are expected to be granted, but have neither already been granted nor paid out.
As the explanatory memorandum to the law states, the provision is intended in particular to bridge situations where different payment dates result from the legal regulations and this leads to an unavoidable gap in coverage.
In contrast, BAföG benefits are paid monthly in advance, like SGB II benefits, according to § 51 para. 1, sentence 1.
The legally regulated payment date therefore does not result in a coverage gap.
Section 27 paragraph 4 sentence 2 of the German Social Code, Book II (SGB II) is to be interpreted as meaning that even in cases where a funding gap exists before receiving BAföG (Federal Training Assistance Act), there is an entitlement to loan-based benefits under the SGB II to bridge the gap in the month of commencement of training, even if an advance payment is not granted after receiving BAföG.
Since, as a rule, there is no discretion as to whether benefits should be granted as a loan if the trainee remains in need of assistance (Thiel in LPK-SGBII, § 27 SGB II, Rn. 15), in this case there is not only a right to the exercise of discretion, but also to the loan-based benefits themselves.
Source: Tacheles
4.3 – Social Court Stade Judgment of 26.08.2011, – S 28 AS 894/10 –
A recipient of Hartz IV benefits is entitled to reimbursement of her actual travel expenses for the round trip to the educational institution with her own car in the amount of the mileage allowance according to § 5 para. 1 Federal Travel Expenses Act (BRKG).
If a benefit provider exercises its discretion in such a way as to provide one of the benefits pursuant to Section 16 Paragraph 1 Sentence 2 of the German Social Code, Book II (SGB II), it is therefore, pursuant to Section 16 Paragraph 2 Sentence 1 of the SGB II, generally bound by the provisions of the German Social Code, Book III (SGB III) with regard to the prerequisites and legal consequences.
The benefit provider is therefore only entitled to discretion regarding the amount of benefits if the German Social Code, Book III (SGB III) also provides for such discretion.
The latter is not the case here (cf. BSG, judgment of 06.04.2011 – B 4 AS 117/10 R -).
According to Section 79 Paragraph 1 Number 2 of the German Social Code, Book III (SGB III), further training costs include, among other things, travel expenses directly incurred as a result of the further training. Once a discretionary decision has been made pursuant to Section 77 SGB III, benefits must be provided in accordance with Section 81 Paragraph 1 SGB III, and the responsible agency is bound by the provisions of Section 81 Paragraph 2 SGB III with regard to the amount of the benefit to be provided (see Federal Social Court (BSG), judgment of April 6, 2011 – B 4 AS 117/10 R –).
There is already a lack of an unintended gap regarding the reimbursement of travel expenses under the German Social Code, Book II (SGB II). According to the explicit legal mandate of Section 16 Paragraph 1 Sentence 2 in conjunction with Section 16 Paragraph 2 Sentence 1 of the SGB II, recourse must be had to the legal provisions of the German Social Code, Book III (SGB III) (see Federal Social Court (BSG), judgment of April 6, 2011 – B 4 AS 117/10 R –).
For the same reasons, an (analogous) application of Section 6 Paragraph 2 of the German Social Code, Book II (SGB II), must also be ruled out, according to which, if the consideration of the lump sum according to Paragraph 1 No. 3b is unreasonably high compared to the travel costs incurred when using a reasonable public transport service, only these costs are to be deducted as a lump sum.
Note: See also the post on the blog of attorney L. Zimmermann
The discretion granted to the basic income support provider regarding the granting of an integration measure under the German Social Code, Book III (SGB III), is limited to the discretion to decide whether to grant such a measure, unless the provisions of the SGB III also grant discretion regarding the selection of the measure.
sozialrechtsexperte.blogspot.com
5. Decisions of the State Social Courts on Social Assistance (SGB XII)
5.1 – Hesse State Social Court Judgment of 06.10.2011, – L 9 SO 226/10 –
Funeral costs are primarily to be paid by the relatives; this is reasonable even in cases of limited family contact.
Note: See also the post on the blog of attorney L. Zimmermann
sozialrechtsexperte.blogspot.com
6. An election worker receives €40 in compensation for their work at the polling station. Will this compensation be deducted from their unemployment benefit II?
The compensation for election workers is to be deducted from unemployment benefit II.
According to Section 11a Paragraph 3 Sentence 1 of the German Social Code, Book II (SGB II), benefits provided under public law regulations for an expressly stated purpose remain exempt from being counted as income, insofar as they serve a different purpose than the benefits under the SGB II.
The compensation paid to election workers is not earmarked for any specific purpose. An eligible person can therefore use this payment to secure their livelihood.
However, according to Section 11b Paragraph 2 Sentence 3 of the German Social Code, Book II (SGB II), an increased basic allowance of up to 175 euros is to be deducted from the compensation for election workers, as it is to be classified as tax-free expense allowances according to Section 3 Number 12 of the German Income Tax Act (EStG).
Source: Knowledge database of the Federal Employment Agency (BA) § 11 SGB II, amended on 06.10.2011
7. Coverage of needs during holiday periods and applicability of Section 7 Paragraph 4 of the German Social Code, Book II (SGB II)
Expert report dated September 1, 2011, No. 04/10, prepared by experts: Matthias Köpp, Dr. Edna Rasch
Guiding principles – developed by the German Association
1. If a young person is placed in a youth welfare facility and also stays temporarily with their parents or one parent, they form a temporary household unit with them if the stays are regular and last longer than one day. This applies in particular to regular stays on weekends or during holidays.
2. A claim for social assistance under Section 19 of the German Social Code, Book II (SGB II) cannot be denied by reference to Section 7 Paragraph 4 of the SGB II, since members of a household who are not capable of working from the outset and for whom only a claim for social assistance is possible do not fall within the scope of application of Section 7 Paragraph 4 of the SGB II.
3. Placement in a residential facility within the meaning of Section 7 Paragraph 4 Sentence 1 of the German Social Code, Book II (SGB II), which excludes benefits under the SGB II, exists only if the facility is structured and designed in such a way that it is impossible for the resident to engage in gainful employment of at least three hours per day. These criteria also generally apply to youth welfare facilities.
Source: www.deutscher-verein.de
Note: See also the post on the blog of attorney L. Zimmermann
A very successful essay – a must-read for those affected – I am familiar with the commentaries and the corresponding case law, and we also consider them to be very good.
We would also like to point out the following: SG Karlsruhe judgment of July 27, 2009, – S 16 AS 1115/08 –
sozialrechtsexperte.blogspot.com
Author of the legal case ticker: Willi 2 from Tacheles
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
