1. Decision of the Federal Social Court of 24 November 2011 on basic income support for job seekers (SGB II)
1.1 – BSG, Judgment of 24.11.2011, – B 14 AS 121/10 R –
The job center must pay the additional heating costs, taking into account periods in which the unemployed person has not yet received any assistance.
According to the jurisprudence of both senates, the distinction between debts for accommodation and other costs of accommodation and heating must be made independently of the civil law classification.
Based on the purpose of the benefits under the German Social Code, Book II (SGB II), a distinction must be made as to whether the need is one that has actually arisen and has not yet been covered by the SGB II provider or not (see Federal Social Court (BSG) judgment of March 22, 2010 – B 4 AS 62/09 R – SozR 4-4200 § 22 No. 38, paragraph 17, and judgment of June 17, 2010 – B 14 AS 58/09 R – BSGE 106, 190 = SozR 4-4200 § 22 No. 41, paragraph 17).
This distinction is also crucial insofar as it concerns obligations arising from the tenancy agreement that were established before the onset of need. Only if the person in need fails to meet their due obligations under the tenancy agreement during periods in which they did not receive benefits to secure their livelihood under the German Social Code, Book II (SGB II), are such burdens considered debts and only eligible for reimbursement under the limited conditions of Section 22, Paragraph 5 of the SGB II.
It is irrelevant for the purposes of this distinction that additional liabilities may be based in part on consumption during periods when there was no need for assistance. Insofar as liabilities arose only after the onset of need, they are considered expenses within the meaning of Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II) – at least as long as the dwelling continues to be occupied (see Federal Social Court judgment of June 17, 2010 – B 14 AS 58/09 R – BSGE 106, 190 = SozR 4-4200 § 22 No. 41, paragraph 19).
Comment by Willi 2: BSG, Judgment of 20.11.2011, – B 4 AS 9/11 R –
A claim for additional heating and operating costs for an apartment no longer occupied by the job seeker at the time the claim is due must be covered by the job center as accommodation costs in the month in which the claim is due, according to Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II).
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2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – North Rhine-Westphalia State Social Court, decision of 6 January 2012, – L 7 AS 1107/11 B –
A lawsuit seeking basic income support without taking parental allowance into account as income from 01/01/2011 onwards has no prospect of success.
The reasoning is based on the statements of the Social Court in the contested decision, which the Senate adopts after review (§ 142 para. 2 sentence 3 SGG), as well as on those of the Social Courts of Landshut, Augsburg and Marburg (judgment of 07.12.2011 – S 10 AS 484/11 para. 23 ff. juris; judgment of 22.11.2011 – S 17 AS 1102/11 para. 18 ff. juris; judgment of 12.08.2011 – S 8 AS 169/11 para. 20 ff).
Furthermore, the Federal Constitutional Court (BVerfG) ruled that the design of parental allowance as an income replacement benefit does not violate Article 3 Paragraph 1, Article 6 Paragraphs 1 and 2 of the Basic Law (GG) (decision of November 9, 2011 – 1 BvR 1853/11, paragraphs 7 et seq., 19). Parental allowance is generally granted to eligible persons in need of assistance; its consideration as income is a consequence of its constitutionally permissible classification as a wage replacement benefit and leads to the harmonization of the legal situation with regard to the previous crediting of child benefit as income under Book Two of the Social Code (SGB II).
Note by Willi 2: Social Court Landshut Judgment of 07.12.2011, – S 10 AS 484/11 –
Hartz IV – Parental allowance is countable income
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2.2 – Berlin-Brandenburg State Social Court, Judgment of 11 January 2012, – L 18 AS 1172/10 –
A move is necessary if there is a plausible, comprehensible and understandable reason that would also motivate someone not receiving benefits (see LSG Berlin-Brandenburg, decision of November 10, 2009 – L 29 AS 1196/09 B ER -; Sächsisches LSG, decision of March 4, 2011 – L 7 AS 753/10 B ER -; LSG Baden-Württemberg, judgment of December 8, 2009 – L 2 AS 4587/09 -).
The Senate was not convinced that such a ground existed due to the plaintiff's lack of substantiated arguments. Insofar as the plaintiff claimed that the noise pollution in her previous apartment was clearly too high to allow her to sleep there during the day, especially given her shift work schedule, her submissions lacked specific details regarding the nature of the noise source and whether the noise exceeded the usual level in a major city like Berlin. The facts of the case and the parties' submissions did not suggest the need for further investigation (cf. Federal Social Court, Judgment of December 12, 1995 – 5 RJ 26/94 = SozR 3-2200 § 1248 No. 12 with further references).
Note by Willi 2: BSG, Judgment of 13.04.2011, – B 14 AS 32/09 R-
Hartz IV – The age of the benefit recipient and their long length of residence are – even in combination – not reasons that speak against a move.
With regard to the social environment, it should be borne in mind that every move entails a change in the social environment to some extent, and this is a normal consequence resulting from the legal regulations (cf. Federal Social Court [BSG] judgment of 19 February 2009 – B 4 AS 30/08 R – BSGE 102, 263 = SozR 4-4200 § 22 No. 19 (Munich), paragraphs 32 et seq.; Federal Social Court [BSG] judgment of 17 December 2009 – B 4 AS 27/09 R – SozR 4-4200 § 22 No. 27 (Essen), paragraphs 33 et seq.).
Reasons that may preclude a move include, for example, a disability or the exercise of visitation rights with a child (see Section 22b Paragraph 3 Sentence 2 of the German Social Code, Book II, as amended by the Standard Needs Assessment Act, Federal Law Gazette I 2011, 453; similarly, Federal Social Court judgment of February 19, 2009 – B 4 AS 30/08 R – BSGE 102, 263 = SozR 4-4200 § 22 No. 19 (Munich), paragraphs 33 et seq.; Federal Social Court judgment of December 17, 2009 – B 4 AS 27/09 R – SozR 4-4200 § 22 No. 27 (Essen), paragraph 33).
Reasons such as the fact that HB has lived in the apartment since 1959; and that he keeps a comprehensive archive in it, particularly on the topics of sports, the Ministry for State Security and football, in which he is internationally recognized as a scientific expert, do not explain why he should have a higher entitlement to housing benefits than the appropriate amount beyond the expired six-month period of Section 22 Paragraph 1 Sentence 3 of the German Social Code, Book II (SGB II).
The plaintiff's scientific research and archive, as well as Article 5 Paragraph 3 of the Basic Law cited in the grounds for appeal, do not preclude a relocation. The Federal Social Court (BSG) has already ruled that Section 22 of the German Social Code, Book II (SGB II) does not provide a legal basis for the assumption of costs for premises used for professional purposes (BSG judgment of November 23, 2006 – B 11b AS 3/05 R – SozR 4-4200 § 16 No. 1, paragraph 15).
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2.3 – Berlin-Brandenburg State Social Court, decision of 12 January 2012, – L 5 AS 2097/11 B ER
Section 15 paragraph 1 sentence 6 of the German Social Code, Book II (SGB II) does not provide a legal basis for supplementing, amending or replacing an already concluded and still valid integration agreement by means of an administrative act.
According to Section 15 Paragraph 1 Sentence 6 of the German Social Code, Book II (SGB II), the provisions to be included in an integration agreement should be implemented by administrative act if an integration agreement cannot be reached. According to the case law of the Federal Social Court, the failure to reach an integration agreement is not a prerequisite for a substitute administrative act. Rather, the basic income support provider is entitled to this alternative if it appears to be the more suitable course of action (Federal Social Court, Judgment of September 22, 2009, B 4 AS 13/09 R).
However, this does not mean that the authority may supplement, amend, or replace an existing and still valid integration agreement by means of an administrative act, even if it deems it necessary. The wording of the provision makes it clear that it only applies if no integration agreement exists.
This is also evident from the explanatory memorandum to the law. According to this memorandum, the integration agreement specifies the social security relationship between the employable person and the employment agency. It contains binding provisions regarding the support and requirements of the employable person, in particular concerning the agreed-upon services for integration into the workforce and the minimum requirements for the individual's own efforts toward vocational integration, both in terms of type and scope. The integration agreement is intended to be valid for six months. If integration is not successful within this period, a new agreement must be concluded, taking into account the experience gained.
The time limit is intended to ensure intensive support and a timely critical review of the suitability of the resources used for vocational integration. If an integration agreement cannot be reached, the intended provisions can also be made by administrative act (Bundestag printed matter 15/1516, p. 54).
The legislator therefore assumed that an integration agreement, once concluded, generally remains valid until the expiry of the fixed term. Furthermore, since an integration agreement is a public-law contract within the meaning of Section 53 of Book Ten of the German Social Code (SGB X) (Saxony State Social Court, Judgment of May 26, 2011, L 3 AL 120/09; Judgment of June 19, 2008, L 3 AS 39/07; Baden-Württemberg State Social Court, Judgment of July 19, 2007, L 7 AS 689/07; Bavarian State Social Court, Judgment of March 17, 2006, L 7 AS 118/05; Hesse State Social Court, Decision of October 17, 2008, L 7 AS 251/08 B ER, L 7 AS 252/08 B ER, L 7 AS 253/08 B ER; North Rhine-Westphalia State Social Court, Judgment of October 21, 2009, L 12 AS 12/09), it is subject to the provisions of Sections 53 to 62 of the German Social Code, Book X (SGB X), in accordance with Section 40 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II).
The legal provisions for subsequent contract adjustments and termination are set out in Section 59 of the German Social Code, Book X (SGB X). If, according to this provision, the circumstances that were decisive for determining the content of the contract have changed so significantly since its conclusion that it is unreasonable to expect one of the contracting parties to adhere to the original contractual arrangements, then that party may demand an adjustment of the contract's content to the changed circumstances or, if an adjustment is not possible or unreasonable for one of the contracting parties, terminate the contract in writing.
Note by Willi 2: Baden-Württemberg State Social Court, decision of 02.08.2011, – L 7 AS 2367/11 ER-B –
The amendment of an administrative act replacing an integration agreement during its period of validity by a further replacement decision pursuant to Section 15 Paragraph 1 Sentence 6 of the German Social Code, Book II (SGB II), is only permissible if the requirements of Section 48 Paragraph 1 of the German Social Code, Book X (SGB X) are met.
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2.4. – State Social Court of Saxony-Anhalt, decision of 27 December 2011, – L 5 AS 473/11 B ER –
An appeal against the obligation to repay a rental deposit loan has suspensive effect pursuant to Section 39 of the German Social Code, Book II (SGB II).
An objection to the decision ordering the set-off has suspensive effect according to § 86a SGG and is not covered by the special Hart IV law of the exclusion of the suspensive effect of § 39 SGB II.
The decision in the contested notice regarding the due date for withholding part of the standard benefits to repay the loan is not a cancellation pursuant to Section 48 of the Tenth Book of the Social Code – Social Administrative Procedure and Social Data Protection (SGB X), not a withdrawal pursuant to Section 45 SGB X and also not a revocation pursuant to Section 46 SGB X.
This is also not a reduction of the payment claim, which – as is evident from the word "and" – must be the consequence of a breach of duty pursuant to Section 31a of the German Social Code, Book II (SGB II). Nor is there a transfer of a claim pursuant to Section 33 of the German Social Code, Book II (SGB II).
The respondent's view that the suspensive effect of legal remedies is unilaterally abolished by law cannot be derived from the legislative materials. Regarding the wording of Section 39 of the German Social Code, Book II (SGB II) during the period from January 1, 2005, to September 31, 2008, the legislative materials do not contain any detailed justifications (see Bundestag printed documents 15/1638, p. 18; 15/1728, pp. 189 et seq.; 15/1749, p. 33). With regard to the amendment of Section 39 SGB II effective January 1, 2009 – which remains unchanged with respect to the relevant case scenarios here – the legislature clarified that objections to reimbursement notices should henceforth have suspensive effect, as these do not regulate basic income support for employment (Bundestag printed document 16/10810, p. 50). This was intended to clarify the widespread dispute regarding the scope of application of Section 39 of the German Social Code, Book II (SGB II) to reimbursement notices.
Contrary to the respondent's assertion, the legislature did not extend Section 39 of the German Social Code, Book II (SGB II) to the cases covered by Section 42a SGB II. The amendment to Section 39 SGB II, effective April 1, 2011, was intended to clarify that objections and legal actions against administrative acts establishing a breach of duty and a reduction in the benefit entitlement pursuant to Sections 31b Paragraph 1 and 31c SGB II do not have suspensive effect (Bundestag Printed Matter 17/3404, p. 114). Given that the legislature, in the amendment to Section 31b Paragraph 1 SGB II, mandated the reduction of the affected party's benefit entitlement by law in cases of breach of duty (Bundestag Printed Matter 17/3404, p. 112), the amendment to Section 39 SGB II was necessary. The sanction notice is not intended to revoke, reduce, or withdraw the benefit entitlement; it merely reduces the benefit amount.
Further administrative acts that result in a "reduction of the entitlement to payment," such as offsetting, are not covered by Section 39 of the German Social Code, Book II (SGB II). For the reasons stated above, this would have required an explicit regulation or legislative intent. The due date for loan repayment does not affect the entitlement to benefits itself, which is based on need, but only the entitlement to payment. Offsetting, therefore, does not make any decision regarding basic income support benefits.
Therefore, the principle of the suspensive effect of the legal remedy applies here (see also: Münder, Basic Income Support for Job Seekers, 4th edition, § 39 para. 12; Beckonline commentary, letter B. to § 39 SGB II; Hauck/Noftz-Hengelhaupt, § 39 SGB II, para. 72 on the legal situation from 1 January 2009 regarding offsetting administrative acts pursuant to § 23 paragraph 1 sentence 3 SGB II aF).
Contrary to the respondent's view, the question of the suspensive effect of an appeal is not affected by whether the setting of repayment rates is legally prescribed or discretionary.
The legal nature of the repayment obligation is equally irrelevant. The respondent's reference to commentaries on Section 43 of the German Social Code, Book II (SGB II aF), is also unhelpful, as a different set of circumstances is addressed there. Furthermore, the Berlin Social Court's considerations regarding the inadmissibility of reducing the standard benefit over an extended period are not relevant here; due to the statutory provisions, no balancing of interests is required regarding the order for suspensive effect.
The respondent was obligated, pursuant to Section 86b Paragraph 1 Sentence 2 of the Social Court Act (SGG), to repay the amounts withheld since June 2011 as part of the redress for the consequences of enforcement. An amount of 10% of the standard benefit for the household in need is not a trivial sum. The Senate generally considers 5% of the standard benefit to be such a sum. This threshold has been significantly exceeded here, especially since this is not a one-time withholding of basic income support intended to cover the subsistence minimum.
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – Social Court Berlin Judgment of 16.12.2011, – S 26 AS 10021/08 –
Insofar as it relates to Union citizens who are not nationals of a contracting state of the European Convention on Social Security and insofar as it relates to benefits to secure subsistence under Book II of the German Social Code (SGB II), there is no doubt as to the compatibility of the exclusion of benefits under Section 7(1) sentence 2 no. 2 of Book II of the German Social Code (SGB II) (in the version applicable since August 28, 2007) with higher-ranking law, at least for periods prior to the entry into force of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems.
The Republic of Poland is (so far) not a signatory state to the European Social Security Convention and therefore not a party to this international treaty.
3.2 – Berlin Social Court decision of 03.01.2012, – S 96 AS 7837/11 –
The appointment of a lawyer is not necessary in the context of an action for failure to act within the meaning of Section 121 Paragraph 2 of the Code of Civil Procedure if the plaintiff is familiar with the legal institution of the action for failure to act and has extensive experience with social court proceedings and the lawyer was not already involved in the matter during the preliminary proceedings.
3.3 – Berlin Social Court decision of 10 January 2012, – S 96 AS 26664/11 –
The simultaneous submission of a large number of applications by the beneficiary generally constitutes a sufficient reason for a longer processing time within the meaning of Section 88 of the Social Court Act (SGG).
An action for failure to act may be an abuse of rights if the person entitled to benefits has deliberately provoked the exceeding of the processing period stipulated in Section 88 of the Social Court Act (SGG) by submitting a large number of applications simultaneously.
3.4 – Hildesheim Social Court, decision of December 8, 2011, – S 55 AS 1910/11 ER –
According to Section 21 Paragraph 6 of the German Social Code, Book II (SGB II), the applicant's past contribution arrears in private health insurance must be covered.
According to Section 21 Paragraph 6 of the German Social Code, Book II (SGB II), as amended and in force from 01.04.2011, the applicant has a right to have the contribution arrears covered in the amount claimed.
According to this regulation, additional needs are recognized for benefit recipients if, in an individual case, there is an unavoidable, ongoing, and not merely one-off special need. The additional need is unavoidable if, in particular, it is not covered by contributions from third parties or by the benefit recipient's potential savings, and if its amount deviates significantly from average needs.
As explained above, the applicant faces the risk that, as a consequence of the suspension of her health insurance coverage, she would not receive treatment or would only receive very limited treatment in the event of illness.
This inevitably leads to the conclusion that there is an unavoidable additional need, which also justifies the assumption of existing contribution arrears. Insofar as Section 21 Paragraph 6 of the German Social Code, Book II (SGB II), in the version applicable from April 1, 2011, requires that the need be ongoing and not merely a one-off occurrence, this provision, according to its purpose and intent, must be understood to include ongoing needs from a past, completed period. The contribution surcharges at issue here were levied by G. for the period from the beginning of September 2009 to the end of December 2010, i.e., for 16 months; therefore, an ongoing need existed.
The respondent must provisionally satisfy this need through a grant, not a loan. According to Section 24 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), in the version applicable from April 1, 2011, a loan may only be granted if, in an individual case, an unavoidable need covered by the standard allowance for securing subsistence cannot be met. However, health insurance contributions are not a need covered by the standard allowance (see Schwabe in ZfF 2011, 97ff).
3.5 – Social Court Würzburg Decision of 18 November 2011, – S 15 AS 772/11 ER –
No coverage of costs for dental prosthesis treatment
This is because there is no legal basis for such a claim in the German Social Code, Book II (SGB II). The granting of additional or special needs benefits under SGB II is only possible in cases expressly stipulated by law (Federal Social Court, judgment of August 19, 2010 – B 14 AS 13/10 R – para. 14), to which the disputed reimbursement of costs for the planned dental treatment does not belong.
Willi 2's comment:
None of the additional needs regulated in Section 21, paragraphs 2 to 5 of the German Social Code, Book II (SGB II) apply. However, Section 21, paragraph 6 of the SGB II also does not provide for an entitlement to reimbursement of the incurred costs. According to this section, benefit recipients receive additional needs allowances if, in an individual case, there is an unavoidable, ongoing, and not merely one-off special need. The costs for the planned dental treatment, however, do not constitute an ongoing, but rather a one-off special need.
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4. Essay info also 6/2011
Helga Spindler: Constitutional law meets statistics. How should we proceed with the standard rates? (PDF, 126 KB)
Info also – Information on unemployment law and social assistance law – Nomos – Issue 6
Author of the legal case ticker: Willi 2 from Tacheles
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
