1. Decisions of the Federal Social Court of 25 January 2012 on basic income support for job seekers (SGB II)
1.1 – BSG, Judgment of 25 January 2012, – B 14 AS 101/11 R –
Inheritance income is considered income within the meaning of Section 11 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II) in the version applicable until the end of 2010, because in the case of universal succession, the heir can dispose of his share of the estate as soon as the inheritance is received.
The decisive factor for classifying it as an increase in value, and thus for distinguishing between income and assets, is whether the inheritance occurred before the first application.
However, the income could only be taken into account for the plaintiffs' needs from 1 April 2008 onwards, because it was only from this point onwards that it was actually available to cover the plaintiffs' needs.
The defendant correctly included the receipts as income even beyond the month of April.
The repayment of the benefits provided as loans for April and May 2008 does not mean that the plaintiffs should be placed in the position they would have been in had the income been earned during a period without need for assistance.
Note by Willi 2: State Social Court of Saxony-Anhalt, decision of 12 July 2011, – L 5 AS 230/11 B ER –
An inheritance or legacy is not a designated income within the meaning of Section 11 Paragraph 3 No. 1a of the German Social Code, Book II (SGB II) in its former version. (
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1.2 – BSG, Judgment of 25.01.2012, – B 14 AS 65/11 –
Data protection when receiving unemployment benefit II – Job center was not allowed to telephone former landlord
The data of Hartz IV recipients is protected by law. Job centers are therefore prohibited from disclosing who is unemployed and receiving Hartz IV benefits, as the Federal Social Court (BSG) in Kassel ruled on Wednesday. (Case number: B 14 AS 65/11)
The highest social court ruled in favor of a large family from the Freiburg area. They had been receiving supplementary benefits from the job center because their earned income was insufficient to cover their living expenses. When their landlord terminated their lease due to personal use, they found new accommodation. The family applied to the job center for a loan to cover the required security deposit of €1,700. They also applied for funds for new wardrobes, as the children had been able to use built-in wardrobes in their old apartment.
The job center denied both requests. The family could use the deposit they had already received from their previous apartment for the security deposit. To clarify whether the issue with the built-in wardrobes was true and when the deposit would be refunded, the agency contacted the former landlord in writing and also followed up by phone.
Soon after, the whole village knew they were receiving Hartz IV benefits, the family complained. They were subjected to "scorn and ridicule."
The Federal Social Court (BSG) has now ruled that the job center should not have contacted the landlord by phone. By doing so, it unlawfully disclosed confidential social information.
The family's lawyer announced that he would now clarify with his clients whether they wanted to file claims for damages and compensation for pain and suffering against the job center.
According to the data protection regulations that also apply to the German Social Code, Book II (SGB II), everyone has the right to have their social data not collected, processed or used by benefit providers without authorization.
The defendant cannot justify the disclosure of the social data here by claiming it was necessary to fulfill his own duties. He was obligated to respect the plaintiffs' legitimate interests and therefore should have obtained their consent before contacting any third parties.
Willi 2's note: Federal Social Court (BSG) appointment tip no. 1/12 – Scope of data protection when receiving unemployment benefit II
The Federal Social Court (BSG) will have to decide on the scope of data protection when receiving unemployment benefit II on January 25, 2012.
The Baden-Württemberg State Social Court (LSG) ruled on October 13, 2010 (case no. L 3 AS 1173/10) that the confidentiality of social data under Section 35 Paragraph 1 of the German Social Code, Book I (SGB I) is not violated if the data required for granting benefits under the German Social Code, Book II (SGB II) can only be obtained from third parties.
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1.3 – BSG, Judgment of 25 January 2012, – B 14 AS 138/11 R –
Kassel – EU citizens can be entitled to Hartz IV benefits even if they have never worked in Germany. The Federal Social Court (BSG) ruled this on Wednesday, siding with a Polish woman living in Berlin. The job center had denied the young woman unemployment benefit II because she was in Germany solely to look for work. According to the Hartz IV law, EU citizens are not eligible for social benefits in such cases.
However, the federal judges in Kassel saw things differently: Because the plaintiff had already entered the country as a child with her parents, her right of residence was still based on family reunification. Therefore, she was entitled to state support if she was in need.
The exclusion of benefits under Section 7 Paragraph 1 Sentence 2 No. 2 SGB II, according to which Union citizens may also not be entitled to unemployment benefit II if their right of residence arises solely from the purpose of job seeking, does not apply here.
The plaintiffs' stay here was legitimized by a different right of residence. The plaintiff had a (derived) right of residence as a family member, which was not extinguished by her moving out of her parents' home.
The question of to what extent Section 7 Paragraph 1 Sentence 2 No. 2 of the German Social Code, Book II (SGB II) must be interpreted in conformity with European law was therefore irrelevant.
Note by Willi 2: Berlin Social Court judgment of 24 May 2011, – S 149 AS 17644/09 –, direct appeal is permitted
The conformity of Section 7 Paragraph 1 Sentence 2 Number 2 of the German Social Code, Book II (SGB II) with European law is disputed in case law, without a final ruling from the highest court to date
(sozialrechtsexperte.blogspot.com).
2. Decision of the Federal Social Court of 6 October 2011 on basic income support for job seekers (SGB II)
2.1 – BSG, Judgment of 06.10.2011, – B 14 AS 152/10 R –
Moving expenses pursuant to Section 22 Paragraph 3 SGB II a. F. (now Section 22 Paragraph 6 SGB II) do not include the deductible of the comprehensive insurance of a rented moving vehicle, because the damage was caused by participation in general road traffic.
The costs for accommodation and heating also include the costs of a move arranged by the basic income support provider, provided they are reasonable. Such costs would, disregarding the special provision of Section 22 Paragraph 3 of the German Social Code, Book II (SGB II), already be covered as necessary accommodation costs within the meaning of Section 22 Paragraph 1 of the SGB II (see Federal Social Court (BSG) judgment of May 6, 2010 – B 14 AS 7/09 R – BSGE 106, 135 = SozR 4-4200 § 22 No. 37, paragraph 14 and similarly BSG judgment of December 16, 2008 – B 4 AS 49/07 R – BSGE 102, 194 = SozR 4-4200 § 22 No. 16, paragraph 15).
The move was initiated by the provider of basic income support; accordingly, the defendant issued a commitment to cover the costs of the new accommodation on the basis of Section 22 Paragraph 2 of the German Social Code, Book II (SGB II).
The moving expenses that can be taken into account under Section 22 Paragraph 3 of the German Social Code, Book II (SGB II) are limited to the actual costs of the move, such as transport costs, costs for a helper, necessary insurance, petrol costs and packing material (see Federal Social Court (BSG) judgment of 16 December 2009 – BSGE 102, 194 = SozR 4-4200 § 22 No. 16, para. 15; BSG judgment of 1 July 2009 – B 4 AS 77/08 R – SozR 4-4200 § 23 No. 4 para. 12). In the case of moves carried out by the person taking it upon themselves, this includes the costs that are directly incurred in renting a vehicle.
This essentially includes the rental costs, including insurance costs (where the question of the scope of insurance – especially with regard to a deductible – concerns the appropriateness of such costs) and the petrol costs.
In contrast, the claim for damages to which the plaintiff is subject is not a need that can be taken into account within the meaning of Section 22 Paragraph 1 in conjunction with Paragraph 3 of the German Social Code, Book II (SGB II).
While it is generally irrelevant for determining the need for accommodation whether the need arises from culpable – in this case, slightly negligent – conduct (cf. regarding the need for initial furnishing of an apartment, Federal Social Court judgment of 20 August 2009 – B 14 AS 45/08 R – SozR 4-4200 § 23 No. 5, para. 15, and regarding the assumption of rent arrears, Federal Social Court judgment of 17 June 2010 – B 14 AS 58/09 R – BSGE 106, 190 = SozR 4-4200 § 22 No. 41, para. 31).
The car rental company's claim against the plaintiff arises from her participation in road traffic, not from her use of accommodation. The lower courts correctly point out that the damage is not directly related to the use of the apartment, but rather occurred solely during the move.
However, within the entire scope of application of Section 22 of the German Social Code, Book II (SGB II), only those costs that, according to the specific circumstances of the individual case, must be incurred to meet the basic existential need of "housing" are considered as housing costs. The (subsequent) reimbursement of costs incurred through participation in general road traffic does not serve the purpose of maintaining, ensuring the habitability of, or facilitating an orderly move into an apartment, and therefore does not fall under the part of subsistence security covered by claims according to Section 22 of the SGB II.
According to the case law of the Federal Social Court (BSG) (see, for example, BSG judgment of 31 October 2007 – B 14/11b AS 63/06 R – SozR 4-1200 § 14 No. 10 for the law on basic income support), the social security claim requires that the social security provider has violated a duty incumbent upon it by law or a social security relationship, in particular the duty to provide advice and information (§§ 14, 15 Social Code Book One).
Furthermore, it is necessary that a causal link exists between the breach of duty by the social security institution and the disadvantage suffered by the affected party. Finally, the disadvantage resulting from the unlawful administrative action must be remedied by a permissible official act. The correction through the restitution claim must not contradict the respective purpose of the law (cf. regarding the change of income tax bracket, Federal Social Court judgment of April 1, 2004 – B 7 AL 52/03 R – BSGE 92, 267, 279 = SozR 4-4300 § 137 No. 1, paragraphs 30 et seq. with numerous further references).
Firstly, the Senate agrees with the lower courts that the plaintiff cannot subsequently claim, on the grounds of lack of driving experience, that the defendant should have financed the move through a moving company.
If the plaintiff felt unable to drive a van, she should have stated this during her initial consultation. She cannot shift the blame for her own inadequate assessment of the associated risks onto the defendant as a breach of duty of care, particularly since this is a matter that would not have been apparent to the advisor.
There is no question of the plaintiff's existence being threatened by the uncovered costs, because the plaintiff is protected from seizure by the car rental company under the provisions of the Code of Civil Procedure (ZPO).
Note by Willi 2: North Rhine-Westphalia State Social Court, decision of 18 May 2011, – L 7 AS 619/11 B –
Moving expenses must be applied for before the move takes place.
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3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – Social Court Stade, Judgment of 06.12.2011, – S 28 AS 413/09 –
Advance payments – grants – loans from a third party intended for living expenses are not to be counted as income because the job center did not fulfill its obligation to provide benefits in a timely manner.
According to Section 44 Paragraph 1 of the First Book of the Social Code (SGB I), claims for monetary benefits are subject to interest at a rate of 4% from the end of a calendar month following their due date until the end of the calendar month preceding payment.
According to Section 11 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), in the version applicable in 2008, income includes receipts in cash or in kind, with the exception of benefits under the SGB II, the basic pension under the Federal War Victims' Relief Act (BVG) and laws that provide for the corresponding application of the BVG, and pensions or allowances paid under the Federal Compensation Act for damage to life, body, or health. In this context, income within the meaning of Section 11 Paragraph 1 SGB II is generally everything of value that someone receives after submitting an application, and assets are what they already possessed before submitting the application (see Federal Social Court (BSG), judgment of June 17, 2010 – B 14 AS 46/09 R – cited according to juris).
The wording of Section 11 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II) does not provide a further definition of what constitutes income. Only the benefits mentioned in the second part of the sentence are explicitly excluded from consideration. According to the purpose and intent of Section 11 Paragraph 1 SGB II, a benefit provided only temporarily by a third party cannot be classified as income within the scope of application of this provision. Only the "increase in value" constitutes income within the meaning of Section 11 Paragraph 1 SGB II; only those receipts in money or money's worth that result in a change in the financial position of the person receiving such income are considered income. This increase must remain with the person in need for their final use, as only then will it permanently eliminate their need for assistance.
A loan that must be repaid to the lender does not constitute income as it is only a temporary benefit, even if it could initially be used as "readily available funds" to cover living expenses.
The "actual" coverage of needs, which would eliminate the need for assistance, is irrelevant; the sole determining factor is whether income sufficient to cover needs is actually available for final use during the relevant period. Therefore, when classifying a loan payment as income, it is irrelevant whether it constitutes "emergency aid" from a third party (see Federal Social Court, judgment of June 17, 2010 – B 14 AS 46/09 R –).
A distinction based on whether the obligation to fully repay the loan, as stipulated in the loan agreement, falls within the benefit period in which the loan amount was received by the recipient is also not permissible. Because the need for assistance, as a prerequisite for receiving benefits, can exist beyond the benefit period and independently of a (new) application, the benefit period itself is neither a suitable "distribution period" for one-off payments, nor is it relevant for the assessment of need for assistance whether this need continues until the end of the benefit period considered at the time of application or beyond (cf. Federal Social Court, Judgment of June 17, 2010 – B 14 AS 46/09 R –).
The decisive factor for the distinction is therefore solely whether a loan agreement has been validly concluded under civil law in accordance with Section 488 of the German Civil Code (BGB). However, to counteract the risk of misuse of public funds, it is necessary to impose strict requirements on the proof of the conclusion and the seriousness of a loan agreement – especially between relatives. This presupposes that the granting of the loan can be clearly and unambiguously distinguished from a disguised gift or a covert, even voluntary, provision of maintenance based on its actual implementation. Because and insofar as the circumstance favorable to the recipient of assistance – that a proven inflow is nevertheless not to be considered income – falls within their sphere of influence, they have a duty to cooperate in clarifying the necessary facts; the inability to prove these facts is their responsibility.
In the examination to be carried out as to whether a valid loan agreement has been concluded at all, individual criteria of the so-called arm's length comparison can be used and taken into account in the final, comprehensive assessment of all relevant circumstances of the individual case.
Adherence to customary business practices (such as agreeing to the additional contractual obligations listed in Section 488 Paragraph 1 of the German Civil Code) can thus be considered an indication that a loan agreement has actually been concluded. Conversely, the credibility of such an assertion is undermined if the content of the agreement (in particular the loan amount and the repayment terms) and the date of the contract's conclusion are not substantiated, or if a plausible reason for concluding the loan agreement cannot be provided.
However, it is not necessary that both the design (e.g., written form, interest agreement, or provision of collateral) and the implementation of the agreement must correspond in every respect to what is customary between strangers – especially with a credit institution (cf. BSG, judgment of 17.06.2010 – B 14 AS 46/09 R -).
According to Section 44 Paragraph 1 of the First Book of the German Social Code (SGB I), claims for monetary benefits accrue interest at a rate of 4% from the end of one calendar month following their due date until the end of the calendar month preceding payment. According to the wording of Section 44 SGB I, the authority must therefore decide on any potential interest claim by the benefit recipient ex officio, even without a specific application, which corresponds to the legal nature of interest as an accessory benefit (see Federal Social Court [BSG], judgment of September 11, 1980 – 5 RJ 108/79 – cited according to juris, with further references). Since the defendant has made it clear that interest will not be charged ex officio, the present court decision is necessary.
According to Section 44 Paragraph 2 of the German Social Code, Book I (SGB I), interest begins to accrue no earlier than six calendar months after the responsible benefit provider receives the complete application for benefits. If no application is submitted, interest begins to accrue one calendar month after the notification of the decision regarding the benefit. The commencement of interest according to the second alternative also applies if an application has been submitted, but the second alternative results in an earlier commencement of interest compared to the first alternative (see Social Court Karlsruhe, Judgment of September 22, 2008 – S 5 AS 5380/07 – with further references; Social Court Lüneburg, Order of December 11, 2006 – S 28 AS 1266/06 -).
The latter is the case here. Based on the notification of the contested decision of November 10, 2008 on November 13, 2008 (cf. Section 37 of the Tenth Book of the Social Code (SGB X)), interest begins to accrue here on January 1, 2009.
No other legal bases exist for the assumption of interest. The civil law provisions regarding claims for default interest pursuant to Section 288 of the German Civil Code (BGB) and for litigation interest pursuant to Section 291 of the German Civil Code (BGB) do not apply analogously in social law disputes. The regulation in Section 44 of the German Social Code, Book I (SGB I) is exhaustive (see Social Court Braunschweig, judgment of August 27, 2009 – S 25 AS 3138/08 – with further references).
Note by Willi 2: BSG, Judgment of 20.11.2011, -B 4 AS 46/11 R –
Monetary gifts from parents are not considered income, as only the increase in value constitutes income within the meaning of Section 11 Paragraph 1 of the German Social Code, Book II (SGB II).
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3.2 – Social Court Stade, Judgment of 06.12.2011, – S 28 AS 561/09 –
Reimbursement of costs for obtaining a car driving licence is only granted if it is a subsidy for initiating or taking up an activity subject to insurance, which must be necessary for professional integration.
The initiation of employment is a preliminary step, and while it may still be unspecific, it must be related to employment relationships. In contrast, the commencement of employment is always directly related to a specific employment relationship (cf. Bieback in: Gagel, SGB III, § 45 Rn. 25 f. – beck-online).
Note by Willi 2: LSG Lower Saxony-Bremen, decision of 13.10.2011, - L 15 AS 317/11 B –
Hartz IV: Coverage of costs for obtaining a driver's license
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3.3 – Social Court Stade, Judgment of 06.12.2011, – S 28 AS 740/09 –
The job center is not obligated to cover the costs of purchasing work clothes for classes at the vocational school.
According to Section 24a of the Second Book of the German Social Code (SGB II) in the version valid until December 31, 2010 (hereinafter referred to as SGB II a.F.), pupils who have not yet reached the age of 25 and who attend a general or vocational school receive an additional school allowance of €100 if they, or at least one parent living in their household, are entitled to benefits to secure their livelihood under this book on August 1 of the respective year. According to Section 41 Paragraph 5 of the SGB II a.F., the allowance under Section 24a is paid on August 1 of each year.
According to the explanatory memorandum to the law, the benefit is intended to cover the purchase of items for personal school equipment (e.g., schoolbag, backpack, gym clothes, gym bag, recorder) and writing, arithmetic, and drawing materials (e.g., fountain pens including ink cartridges, ballpoint pens, pencils, colored pencils, notebooks, pads, paper, rulers, book covers, compasses, calculators, set squares). It is a "benefit for school," not merely a benefit for "school supplies.".
All costs associated with school attendance and personal equipment are covered. This includes clothing items required for school (e.g., clothing for physical education classes; clothing for other subjects). Since Section 24a of the German Social Code, Book II (SGB II) also applies to students attending vocational schools, the school benefits include costs specifically incurred at a vocational school. This includes work materials and clothing needed for practical instruction. The work clothing required by the plaintiff for attending vocational school is considered personal equipment for vocational school and is therefore covered by the benefits under Section 24a of the SGB II (old version).
The additional school allowance is paid as a lump sum of €100.00 once a year on August 1st. As with the calculation of the standard allowance, this allowance is also calculated – and the Chamber considers this to be permissible – as a lump sum based on a legally defined amount. This regulation serves to simplify administration.
No further claim arises from the clear wording of the law.
A deviation from the standard lump-sum payment under Section 20 of the German Social Code, Book II (SGB II) in its former version – for example, by analogy with the legal principle of Section 28 Paragraph 1 Sentence 2 of the German Social Code, Book XII (SGB XII) – is not possible (see Federal Social Court (BSG), judgment of May 10, 2011 – B 4 AS 11/10 R – cited according to juris). Firstly, Section 20 of the SGB II in its former version lacks a provision corresponding to Section 28 Paragraph 1 Sentence 2 of the SGB XII regarding the deviation from the standard lump-sum payment. Secondly, the legislator has already addressed this in Section 3 Paragraph 3 Sentence 2 of the SGB II in its former version. F. clearly stipulates that a different determination of needs is excluded (cf. LSG Lower Saxony-Bremen, judgment of 04.09.2008 – L 13 AS 104/08 – ; LSG Lower Saxony-Bremen, decision of 12.12.2008 – L 13 AS 234/08 ER -).
Other school supplies – in this case, work clothes for vocational school – are neither defined as additional needs under Section 21 of the German Social Code, Book II (SGB II) (old version), nor as special needs under Section 23 of the SGB II (old version) (see Federal Social Court (BSG), judgment of August 19, 2010 – B 14 AS 47/09 R – cited according to juris). The needs listed separately in Section 23 Paragraph 3 of the SGB II (old version) are not covered by the standard benefit. The list of needs mentioned in Section 23 Paragraph 3 of the SGB II (old version) is exhaustive and cannot be expanded through interpretation. Even a constitutionally compliant expansion of Section 23 Paragraph 3 of the SGB II (old version) must be rejected. Such a constitutionally compliant interpretation is opposed by the clearly discernible will of the legislator (cf. LSG Lower Saxony-Bremen, judgment of 04.09.2008 – L 13 AS 104/08 – cited according to juris; BSG, judgment of 10.05.2011 – B 4 AS 11/10 R -).
The constitutional right established by the Federal Constitutional Court in its judgment of February 9, 2010, for the coverage of unavoidable, ongoing, and not merely one-off special needs (now regulated in Section 21 Paragraph 6 of the German Social Code, Book II, as amended), is also not applicable, because the need for school expenses is not a special, atypical need. Rather, it concerns a right that is to be attributed to the constitutionally protected minimum subsistence level. The new right is not intended for such "typical" needs (cf. Federal Social Court, judgment of August 19, 2010 – B 14 AS 47/09 R).
There is no entitlement to reimbursement of the costs of necessary work clothes for vocational school, also for other constitutional reasons. While the Federal Constitutional Court, in its ruling of February 9, 2010 (- 1 BvL 1/09 -), deemed the calculation of standard benefits for children and young people unconstitutional, this does not apply in this case.
However, in its ruling, the Federal Constitutional Court clarified that the legal violations caused by an unconstitutional shortfall in benefits for the period following the entry into force of the German Social Code, Book II (SGB II) on January 1, 2005, could not be retroactively corrected by the legislature. Retroactive benefit payments were deemed unnecessary. Looking ahead, the legislature addressed the specific needs of children and young people, among other things, by introducing Section 24a of the former version of SGB II. Furthermore, Section 28 of the current version of SGB II now addresses additional needs related to education and social participation.
The asserted claim does not arise from Section 73 of the German Social Code, Book XII (SGB XII).
Furthermore, the claimed school supplies in the form of work clothes for vocational school are not to be deducted in advance from the child benefit as income intended to cover the plaintiff's needs. The child benefit is intended to secure the child's livelihood, including covering school supplies. To ensure it fulfills this purpose, a portion of it cannot be deducted before it is used to cover needs. The child benefit is also not to be considered earmarked income in the amount of the school supplies and therefore not to be taken into account as income when calculating social assistance.
Child benefit, due to its connection to covering the child's needs, is indeed a benefit tied to the individual, but it serves the same purpose as benefits under Book II of the German Social Code (SGB II), namely securing the livelihood of the recipient. Therefore, child benefit cannot be wholly or partially excluded from consideration as income for a specific purpose (see Federal Social Court, judgment of May 10, 2011 – B 4 AS 11/10 R –).
Note by Willi 2: North Rhine-Westphalia State Social Court, decision of 30.08.2011, – L 19 AS 1339/11 B –
Entitlement to school supplies under Section 24a of the German Social Code, Book II (SGB II) also exists if no benefits under the SGB II were actually received or if their parents' entitlement to benefits to secure their livelihood was excluded due to unauthorized absence from their place of residence under Section 7, Paragraph 4a of the SGB II.
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3.4 – Social Court Stade Judgment of 02.12.2011, – S 17 AS 521/10 –
Benefits under the German Social Code, Book II (SGB II) are to be granted as subsidies, with the proviso that no consideration is given to the share of the heirs' property as assets, since its realization would constitute a particular hardship for the plaintiff within the meaning of Section 12 Paragraph 3 No. 6 of the SGB II
According to Section 7 Paragraph 1 Number 3 of the German Social Code, Book II (SGB II), benefits under the SGB II are granted to those in need. According to Section 9 Paragraph 1 of the SGB II, a person is considered in need if they cannot secure their livelihood, or cannot do so sufficiently, from their income or assets and do not receive the necessary assistance from others, in particular from relatives or providers of other social benefits. According to Section 12 Paragraph 1 of the SGB II, all realizable assets must be taken into account. According to Section 12 Paragraph 3 Number 6 of the SGB II, assets and rights are not to be considered if their realization is obviously uneconomical or would constitute a particular hardship for the person concerned.
For a finding of exceptional hardship within the meaning of the aforementioned provision, extraordinary circumstances must exist that demand a significantly greater sacrifice from the affected individual than mere hardship, and certainly than the cutbacks always associated with the liquidation of assets, and which are not covered by the explicit exemptions regarding protected assets. Thus, the existence of atypical circumstances compared to the guiding principles of the German Social Code, Book II (SGB II), is required. Defining the concept of exceptional hardship requires a balancing of interests between the benefit recipient's interest in preserving their assets and the public interest in the economical use of taxpayers' money. In addition to considering personal, family, and professional circumstances, the amount of assets in relation to the amount and anticipated duration of social benefit payments must also be taken into account (see Radüge in: jurisPK-SGB II, 3rd edition 2011, as of August 15, 2011, § 12, para. 161 et seq.).
Note: The plaintiff's share of the property of the community of heirs is not, in principle, exempt from consideration as an asset. None of the exceptions under Section 12 Paragraph 2 of the German Social Code, Book II (SGB II) apply in this respect. From a legal perspective, the share is also realizable (see Federal Social Court (BSG), judgment of January 27, 2009 – B 14 AS 52/07 R –, paragraphs 29 et seq.).
Since the plaintiff's mother apparently refuses to dissolve the community of heirs amicably, the plaintiff has the option of demanding a dissolution of the community of heirs based on Section 2042 of the German Civil Code (BGB). This would first require a partition sale of the house belonging to the community of heirs, which, according to the plaintiff, constitutes the community's only asset. Once the community's assets have been liquidated in this way, the community would then have to be dissolved by agreement among the members. If the mother persistently and seriously refuses to agree to such a settlement, the plaintiff would have to enforce a disputed settlement agreement by filing a lawsuit in civil court.
Taking into account the special circumstances of the present individual case, this procedure, which can also be required in principle due to the obligation to help oneself pursuant to Section 2 of the German Social Code, Book II (SGB II), represents a particular hardship for the plaintiff within the meaning of Section 12 Paragraph 3 No. 6 of the German Social Code, Book II (SGB II).
The decisive factor in this assessment is that the community of heirs consists of the plaintiff and her own mother, and that the mother herself lives in the property to be auctioned. This means that the plaintiff would not only have to sue her mother in the manner described in order to carry out the division of the community of heirs.
Rather, the plaintiff's litigation would also result in the mother losing her home. It is reasonable to assume that, due to her financial situation, the mother cannot purchase her daughter's share of the property herself. Therefore, selling the house to a third party would very likely force the mother to vacate her current apartment in the house. The plaintiff would thus be required to both accept the strain of such a contentious family dispute and deprive her own mother of the home she had built herself with her deceased husband.
The plaintiff would practically be forced to put her own mother out on the street as a result of the contentious dispute. Regardless of the actual market value of the property and the proceeds that could ultimately be obtained from a sale or auction, the court considers the consequences of realizing the assets under the given circumstances to constitute a particular hardship, not only for the plaintiff's mother but also for the plaintiff herself.
It contradicts the principles of the German Social Code, Book II (SGB II), if an affected person were forced into legal disputes with close relatives, thereby causing these relatives serious disadvantages. It is hardly justifiable if the plaintiff were forced to deprive her own mother of her accommodation solely for benefit-related reasons, thereby massively interfering in her mother's affairs.
While everyone should, as far as possible, secure their livelihood according to their own abilities and, in principle, must also use their income and assets for this purpose, insofar as this is legally and practically feasible.
However, it cannot be intended that this entails risks to the cohesion of one's own family unit as well as significant disadvantages for the advancement of close relatives who are not affected by the benefit system. The atypical nature of the circumstances in the present case thus arises from the close emotional bond between the plaintiff and her mother, coupled with the simultaneous prospect of significant disadvantages for the mother in the event of a contentious settlement of the inheritance, i.e., the loss of her own apartment at the plaintiff's instigation.
The case might be judged differently if the person in need of assistance has no close relationship with the member of an inheritance community who would be directly affected by such a dispute, or if such a relationship no longer exists, or if there is reason to believe that the person in need of assistance is genuinely indifferent to the disadvantages arising for the other member.
It cannot be generally assumed that there is a particular hardship within the meaning of Section 12 Paragraph 3 Number 6 of the German Social Code, Book II (SGB II), simply because the realization of assets would encroach upon the sphere of a close relative. In each individual case, the consequences for the close relative and their significance must be examined in order to assess whether, from a reasonable perspective, the causation of these consequences appears acceptable for the person in need of assistance.
Note by Willi 2: Social Court Lüneburg, judgment of 16.06.2011, – S 22 SO 73/09 –
A sum of money received from an inheritance while receiving benefits under Book XII of the German Social Code (SGB XII) is considered an asset if the inheritance occurred before the application for basic income support was submitted.
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4. Decisions of the State Social Courts on Social Assistance (SGB XII)
4.1 – North Rhine-Westphalia State Social Court, decision of 23 January 2012, – L 20 SO 565/11 B –
It is doubtful, and has not yet been clarified in case law and literature, whether the social welfare provider can transfer a legacy claim – which is generally transferable – to itself under Section 93 of the German Social Code, Book XII (SGB XII), even if this claim – as is evident here from the unambiguous wording of the decision – is transferred solely for the purpose of disclaiming the legacy and subsequently asserting compulsory share claims.
For, according to what appears to be unanimous case law and legal literature, the right to disclaim a legacy cannot be transferred in isolation to the social welfare agency, because it is a highly personal right or a right of disposition and thus not a claim transferable under Section 93 of the German Social Code, Book XII (SGB XII) (see, in effect, Higher Regional Court of Frankfurt, ZEV 2004, 24, 25; Higher Regional Court of Stuttgart, ZEV 2002, 367, 369; Regional Court of Konstanz, MittBayNot 2003, 398, 399, note by Muscheles, ZEV 2005, 119; Litzenburger, RNotZ 2005, 162, 164 with further references; note by Langenfeld, BGH-Report 2005, 505; see also Mayer, MittBayNot 2005, 286, 289; all cited according to van de Loo, “Possibilities and limits of a transfer of the right to disclaim inheritance by assignment or transfer”, in: ZEV 11/2006, 473 ff.).
Whether the right to disclaim a legacy, despite its legal nature as a highly personal (dispositive) right, follows the legacy claim transferred here by the contested decisions – for example, pursuant to § 412 in conjunction with § 401 of the German Civil Code (BGB) as an (accessory) ancillary right – is still unclear; because this legal question, which has only been discussed sporadically and controversially in the literature (cf. Weidlich, in: Palandt, BGB, 71st edition 2012, § 2307 Rn. 2; Birkenheier, in: jurisPK-BGB, 5th edition 2010, § 2307 Rn. 23 and van de Loo, ibid., 478), has not yet been the subject of a court decision, let alone clarified by the highest court, as far as can be seen. Against this background, it can also remain open whether the right of disclaimer follows solely the transferred legacy claim or – as the defendant apparently assumes – in cases where the legatee is also entitled to a compulsory share, only the transfer of both the legacy claim and the compulsory share claim leads to the transfer of the right to disclaim the legacy (see van de Loo, loc. cit.).
5. Returning to statutory health insurance while receiving ALG II benefits!
Those with private health insurance can only (re)enroll in the statutory health insurance system (GKV) under certain conditions. Since, based on our experience, there is practically no knowledge of the legal requirements for private insurance, particularly among job center staff, these requirements will be outlined here. Only those requirements that are practically relevant for privately insured recipients of unemployment benefit II (ALG II) will be discussed.
Read more: sozialberatung-kiel.de
An article by attorney Helge Hildebrandt
Author of the legal case ticker: Willi 2 from Tacheles
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
