Part 1 of the case law ticker from Tacheles KW 51/2011 can be found here .
5. Decisions of the social courts on social assistance (SGB XII)
5.1 - Aachen Social Court Judgment of December 13, 2011, - S 20 SO 79/11 -, appeal permitted
There are no constitutional concerns against standard requirement level 3.
According to the appendix to § 28 SGB This applies to the plaintiff who was 19 years old during the period relevant to the decision and was therefore an adult and entitled to benefits; He does not run his own household, but lives in his parents' household. The amount of the standard rate according to standard requirement level 3 is 80% of the standard requirement for standard requirement level 1 (basic standard rate). The plaintiff correctly points out that the 80% share is not based on any special evaluation of the EVS 2008. The legislature expressly noted this in the justification for the standard requirement levels (BT printed matter 17/3404, p. 130). However, he presented his considerations on standard needs level 3 in the further BT printed matter 17/4095 (pp. 40, 41) in detail as follows: “On standard needs level 3 The definition of standard needs level 3 is specified in such a way that it applies to adults who do not lead their own household because they live in other people's households and. are neither spouses nor life partners of other adults living in the household. nor live with them in a community similar to a marriage or civil partnership. Accordingly, neither standard need level 1 nor standard need level 2 can apply to these beneficiaries.
The difference between standard needs level 3 and standard needs level 2 is that standard needs level 2 only applies to couples who are expected to jointly bear the expenses incurred. The consequence is that the standard requirements are divided equally between both partners. Standard requirement level 3, on the other hand, includes constellations of people in whom there is no shared responsibility for expenses in equal shares. Therefore, the previous standard rate share of 80 percent for a household member with standard needs level 3 will be retained.
In contrast to current law, the resulting standard requirement level 3, amounting to 80 percent of the standard requirement level 1 (resulting in 291 euros), only applies to adults, while the previous standard rate share of 80 percent according to Section 3 Paragraph 2 of the Standard Rate Ordinance applies to people aged 14 and over applies. However, for young people between the ages of 14 and under 18, the standard requirement level will be level 4 in the future (according to the grandfathering regulation in Section 8 Paragraph 2 Number 4 RBEG in the version of the draft law: 287 euros). Since the standard needs for children and young people are determined from the consumption expenditure of family households attributable to children and young people, the transfer of standard needs level 4 to adult household members is not possible for systematic reasons. Therefore, a separate standard requirement level is introduced with standard requirement level 3.
The concept behind this is:
A single adult or single parent must, in addition to food and clothing, also finance all household costs alone. This is taken into account with standard requirement level 1, which corresponds to the basic rule set in applicable law. According to the draft law, standard requirement level 1 amounts to 364 euros per month and results from the standard consumption expenditure of single-person households.
In households with several adults, part of the consumption expenditure required to ensure a decent subsistence level is incurred in the same amount for each adult, regardless of the number of adults in the household. This is especially true when it comes to diet and clothing. Due to a lack of statistical basis, possible savings effects of joint shopping in multi-person households are not taken into account for the needs mentioned. However, there are also consumption expenditures that are associated with running a household and are only disproportionately dependent on the number of people living in the household (household-related consumption expenditures).
This applies not only to electricity or water costs, but also to the furnishings of the apartment. The humane subsistence level does not require that in multi-person households each person has their own large electrical appliances such as a television, computer, refrigerator or stove. The same applies to communication equipment with a flat rate for each adult.
The additional needs of a household, which arise on balance from the addition of a second adult, must therefore be lower than the needs of a single person. This means that for an additional adult in the household who is not in a relationship with another person in this household, against the background of the regulations for couples and the standard assessment of needs for single-person households, this must not be considered a single person under social welfare law. Instead, the needs of this adult must be viewed in the context of the household and therefore any relative savings must be taken into account. Since the additional needs of a partner in the household are lower than the needs of a single person, it can be assumed that this also applies to the needs of another adult in a household. The prerequisite is that the other adult person largely shares the existing furnishings and furnishings of the apartment with the other people in the household and does not share in the costs for purchase, maintenance, etc. or only partially, but in the overall view only a very large share small proportion involved. As a result, it is largely the other adult person(s) in the household who bear the costs of running the household.
This situation occurs, among other things, when an adult does not have a say in the running of the household. This applies, for example, to a subtenant whose contribution to the usage costs of the household equipment is usually made in a lump sum via the rent to be paid. In this case, such indirect cost sharing must be covered as part of the accommodation costs, provided the appropriate amount of rent is not exceeded.
Another case constellation is parents who manage the household or when an adult child lives in the parent's household or an adult who manages the household - possibly with his or her partner - accepts a parent into the household. In these two cases, if the child or parent is entitled to benefits in accordance with SGB The entitlement to benefits exists for the persons mentioned who live in other people's households only because the presumption of maintenance in support of living expenses (Third Chapter SGB XII) is not applicable. This states that a person is not entitled to assistance with living expenses if they live with other people in an apartment and, based on the economic ability of the other people, it can be assumed that they will ensure the living costs of the person living with them. Consequently, only the inapplicability of the presumption of maintenance leads to a claim to benefits under SGB XII. The legislator's intention was to enable people who were permanently unable to work, particularly from birth and early childhood, to be entitled to a minimum income regardless of their parents. In these cases, the community of action between parents and adult child was largely abolished. However, the introduction of basic security in old age and in cases of reduced earning capacity was not intended to grant these people living in a household a claim to the extent that single people are entitled to in the amount of the basic standard rate or to couples in the amount of the partner standard rate that was introduced later, but rather to give them a claim in the amount of the standard rate share one adult household member (80 percent of the basic standard rate).
The assignment of additional adults in the household to standard needs level 3 is based on a typification of facts that is possible for the legislature for reasons of administrative practicality. In social assistance law, however, the additional principle applies that benefits must be based on the specifics of the individual case (Section 9 Para. 1 SGB XII). In concrete terms, this means that the responsible social welfare agency must take the specifics of the individual case into account when assessing benefits. In order to take the actual circumstances in a household into account, a different standard rate setting is possible when exercising discretion in accordance with Section 27a Paragraph 4 Sentence 1 SGB XIII in the version of the draft law.
The calculation of the standard rate in standard requirement level 3 is therefore based on coherent and understandable considerations by the legislature. Insofar as the plaintiff, with reference to the BSG judgments of May 19, 2009 (B 8 SO 8/08 R) and March 23, 2010 (B 8 SO 17/09 R), believes that the reduction of the standard rate to a share of 80% in the Standard requirements level 3 no longer corresponded to the legal situation when the law was passed, which is why the reason given is incorrect, he fails to recognize that the two BSG judgments only contain an interpretation of the law in force until December 31, 2010. However, with the new regulation of SGB II and SGB constitutionally still within the scope of action granted to it.
Standard needs level 3 does not include any unequal treatment of people with disabilities that violates Article 3 of the Basic Law. However, as the legislature expressly pointed out in its justification for the law (BT document 17/4095, p. 27), the difference between SGB the household membership forms an independent community of needs and therefore a standard requirement of EUR 364.00 is taken into account for unemployment benefit II. However, a fully incapacitated adult who is entitled to benefits according to SGB However, this different treatment does not constitute a violation of Article 3 Paragraph 1 of the Basic Law. The principle of equality in Article 3 Paragraph 1 of the Basic Law prohibits treating essentially the same as unequal without sufficient objective reasons, and treating essentially unequal equally without such reasons. Article 3 Paragraph 1 of the Basic Law therefore contains, in addition to a prohibition of arbitrariness, the obligation directed at the legislature and jurisprudence not to treat a group of norm addressees differently compared to other norm addressees if there are no differences between the two groups of such a nature and importance that they justify unequal treatment (BVerfGE 55, 72, 88; standing case law). As already explained, the legislature was aware of the difference between those entitled to benefits under SGB XII and those under SGB II who are older than 25 years. However, he demonstrated comprehensibly and convincingly that the unequal treatment affects different addressees of the norm and is therefore justified. This is what it says in the explanatory memorandum to the law (BT printed matter 17/4095, p. 27): “This difference arises from the system differences between basic security for job seekers and social assistance and requires an overall assessment in order to classify it.
The basic security for job seekers is aimed primarily at a group of people who are basically employable and who only need temporary support through tax-financed social benefits. In SGB II, the ability to work results in obligations to take up employment. These apply in particular to adults aged 25 and over living in their parents' household who receive unemployment benefit II. An increased level of personal responsibility and economic mobility must therefore be demanded of them, from which the recognition of economic independence through a standard requirement corresponding to standard requirement level 1 is derived. The system differences between SGB II and SGB While according to the fourth chapter of SGB However, if there is a household share between those entitled to benefits and their parents who are able to work and are entitled to benefits according to SGB II, actual maintenance is assumed under the conditions of Section 9 Paragraph 5 SGB II. For the reasons mentioned, further system differences also arise when it comes to the use of assets or the recognition of earned income.”
These considerations are still within the framework of what is constitutionally justifiable (also: LSG Niedersachsen-Bremen, decision of October 24, 2011 - L 8 SO 275/11 B ER).
The chamber only notes in passing that the plaintiff does not belong to either of the two comparison groups since he has not yet reached the age of 25.
The Chamber is convinced, not least for the following reason, that the new regulation of standard requirements, especially standard requirement level 3, and the legal regulations on which it is based are not unconstitutional. In the decision of February 9, 2010, the BVerfG recognized that the legislature can cover the typical need to secure a humane subsistence minimum through a monthly fixed amount; However, he must grant an additional entitlement to benefits for an unavoidable, ongoing, not just one-off, special need that goes beyond this. The provision of Section 27a Paragraph 4 SGB XII takes this into account. According to this provision, the individual need is determined differently from the standard rate if the level of a need inevitably deviates significantly from an average need. The legislature has thus opened up the possibility for the social welfare provider to take into account ongoing individual needs that go beyond the relevant standard rate, in addition to additional needs in accordance with Sections 30 to 36 SGB XII, by setting a (possibly higher) individual need . This ensures that the humane minimum subsistence level can be guaranteed even in cases where higher needs are not taken into account by the legislature within the framework of the general regulations.
If, after all this, the Chamber has no constitutional objections to the assessment of the plaintiff's standard needs for the period in dispute at EUR 291.00 per month on the basis of standard level 3, then there is no reason to submit the case to the Federal Constitutional Court in accordance with Article 100 of the Basic Law.
Note: see also the article in RA L. Zimmermann's blog
Lower Saxony-Bremen State Social Court decision of October 24, 2011, – L 8 SO 275/11 B ER –
If a 44-year-old recipient of basic security benefits in old age and with reduced earning capacity according to Chapter 4 of SGB
socialrightsexperte.blogspot.com
6. Hartz IV – television represents a special need?
Note on: BSG 14th Senate, judgment of February 24, 2011 - B 14 AS 75/10 R - ; Author: Susanne Jaritz, Ri'inSG, currently research assistant at the BSG: Reference: jurisPR-SozR 25/2011 Note 1
Guiding Principle (By Juris)
The initial equipment of an apartment only includes items that serve to satisfy basic needs such as eating, sleeping and staying, but not certain leisure activities or entertainment and information needs, such as a television.
Other key topics of the decision
The need for legal protection for an action for an obligation decision aimed at initial equipment no longer applies if the desired items have been made available by third parties on a permanent basis, i.e. without reclaiming them in the event of the service being approved, because the rejection notices have been dealt with in a different way within the meaning of Section 39 Paragraph 2 SGB X would be (see BSG, judgment of September 27, 2011 - B 4 AS 202/10 R Rn. 13; see also BSG, judgment of June 9, 2011 - B 8 SO 3/10 R Rn. 11 ).
Note: see also the article in RA L. Zimmermann's blog
No services for the purchase of a television set as part of the initial furnishing of an apartment.
socialrightsexperte.blogspot.com
7. Benefits for education and participation - First recommendations for the interpretation of the new regulations in SGB II and XII as well as in the Federal Child Benefit Act
www.deutscher-verein.de (pdf)
Author of the case law ticker: Willi 2 von Tacheles
Source: Tacheles legal ruling ticker, www.tacheles-socialhilfe.de
Part 1 of the case law ticker from Tacheles KW 51/2011 can be found here .
