1. Decision of the Federal Social Court of 6 October 2011 on basic income support for job seekers (SGB II)
1.1 – BSG, Judgment of 06.10.2011, – B 14 AS 171/10 R –
For a household in which one member receives benefits under the German Social Code, Book II (SGB II), while the other receives basic benefits under the Asylum Seekers' Benefits Act, the reduction rule in Section 20 Paragraph 3 Sentence 1 of the SGB II does not apply
Section 20 Paragraph 3 Sentence 1 of the German Social Code, Book II (SGB II) can generally only cover situations in which both adult members of the household are subject to the benefits system of the SGB II. However, as the Federal Social Court (BSG) has already ruled (see BSG judgment of October 16, 2007 – B 8/9b SO 2/06 R – BSGE 99, 131 = SozR 4-3500 § 28 No. 1, para. 19), an analogous application of Section 20 Paragraph 3 Sentence 1 of the SGB II to non-employable persons in need of assistance who live with partners in a household is possible if they are entitled to benefits under the German Social Code, Book XII (SGB XII). In the case of a "mixed household" between a person entitled to benefits under the SGB II and a partner entitled to benefits under the SGB XII, the regulations under the SGB XII are incomplete. In contrast, Section 20 Paragraph 3 Sentence 1 of the German Social Code, Book II (SGB II) is not applicable to mixed households in which there is no entitlement to 90% of the standard benefit under Section 20 Paragraph 2 of the SGB II, as is the case with the household in question here between a person entitled to benefits under the SGB II and a person entitled to benefits under Section 3 of the Asylum Seekers' Benefits Act (AsylbLG).
2. Decision of the Federal Social Court of 10 November 2011 on social assistance (SGB XII)
2.1 – BSG, Judgment of 10 November 2011, – B 8 SO 18/10 R –
The provision of Section 44 Paragraph 1 Sentence 2 of the German Social Code, Book XII (SGB XII), which might suggest that the obligation to provide benefits should cease if notification of a change in circumstances is delayed, does not apply to one-off changes in need – such as a subsequent claim for heating and utility costs.
The claim for additional heating and operating costs is to be covered as a benefit under Section 29 of the German Social Code, Book XII (SGB XII), even if it has already been paid by the person in need and was applied for late.
The legality of the decision regarding the rejection of higher one-off payments for accommodation and heating costs is measured – contrary to other views in social welfare literature (H. Schellhorn in Schellhorn/Schellhorn/Hohm, SGB XII, 18th ed. 2010, § 44 SGB XII para. 10; Schoch in Lehr- und Praxiskommentar (LPK) SGB XII, 8th ed. 2008, § 44 SGB XII para. 7; Gröschel-Gundermann in Linhart/Adolph, SGB II/SGB XII/AsylbLG, § 44 SGB XII para. 5, as of April 2005; Steimer in Mergler/Zink, Handbuch der Grundsicherung und Sozialhilfe, § 44 SGB XII para. 13, as of September 2008; Wenzel in Fichtner/Wenzel, SGB XII mit AsylbLG, 4th ed.) 2009, § 44 SGB XII marginal note 7) – in conjunction with § 48 para. 1 sentence 1 in conjunction with sentence 2 no. 1 SGB X (BSG SozR 4-4200 § 22 no. 38 marginal note 12; BSG, judgment of 6 April 2011 – B 4 AS 12/10 R – marginal note 13); because at the latest since the SGB XII came into force, the provisions of §§ 39 ff SGB X for the effectiveness and revocation of administrative acts also apply in principle to basic income support for the elderly and those with reduced earning capacity (BSGE 99, 137 ff marginal note 14 ff = SozR 4-1300 § 44 no. 11; Falterbaum in Hauck/Noftz, SGB XII, K § 44 marginal note 9, as of March 2009).
According to Section 48 Paragraph 1 Sentence 1 in conjunction with Sentence 2 No. 1 of the German Social Code, Book X (SGB X), an administrative act with continuing effect – as in the present case – must be revoked from the time of the change in circumstances, insofar as a significant change has occurred in the factual or legal circumstances that existed at the time of its issuance in favor of the person concerned.
According to the established case law of the Federal Social Court (BSG), when assessing the materiality of the change within the meaning of Section 48 Paragraph 1 of the German Social Code, Book X (SGB X), the sole determining factor is whether the decision should not have been issued under the changed conditions due to the objective circumstances (see, for example: Schütze in von Wulffen, SGB X, 7th edition 2010, Section 48, marginal note 12 with further references; Waschull in LPK-SGB X, 3rd edition 2011, Section 48, marginal note 27 with further references).
Insofar as social welfare literature advocates an independent concept of materiality (at least 15% higher benefits) (see, for example, Falterbaum in Hauck/Noftz, SGB XII, K § 44 SGB XII RdNr 11 with further references, as of March 2009; Kreiner in Oestreicher, SGB II/SGB XII, § 44 SGB XII RdNr 11, as of June 2006), this lacks a legal basis (see also Blüggel in jurisPK-SGB XII, § 44 SGB XII RdNr 21). Section 44, sentences 2 and 3 of the German Social Code, Book XII (SGB XII) do not establish a completely independent regulation compared to Section 48 of the German Social Code, Book X (SGB X), but only modify it insofar as it concerns the commencement of benefits (Kreikebohm in Kreikebohm/Spellbrink/Waltermann, Commentary on Social Law, 2nd edition 2011, Section 44 SGB XII, marginal note 3).
Pursuant to Section 42 Paragraph 1 Number 2 of the German Social Code, Book XII (SGB XII) in conjunction with Section 29 Paragraphs 1 and 3 of the SGB XII, benefits for accommodation and heating are provided in the amount of the actual expenses. While one-off costs also fall under this provision and constitute a need in the month they are due (Federal Social Court [BSG], Judgment of April 6, 2011 – B 4 AS 12/10 R – Paragraph 15), the material change compared to the previous factual and legal situation is assessed, within the framework of Section 48 Paragraph 1 Sentence 2 Number 1 of the German Social Code, Book X (SGB X), according to the point in time when the costs were actually incurred (BSG, ibid., Paragraph 13), i.e., in this case, the circumstances of 2006.
In the absence of any other agreement, the landlord's claim against the plaintiff became due upon its assertion; it is unnecessary to examine whether this claim by the landlord was justified. It suffices that the plaintiff's payment was made on the basis of an agreement, i.e., that it was a genuine claim (BSGE 104, 179 ff No. 16 with further references = SozR 4-4200 § 22 No. 24).
Section 44, paragraph 1 of the German Social Code, Book XII (SGB XII) makes it clear that the provision only regulates benefit periods exceeding one month (generally twelve months according to sentence 1). Sentence 2 expressly refers to such a benefit period, the beginning of which, for practical reasons (the application of the monthly principle), is brought forward to the beginning of the month in favor of the benefit recipient; the aim of this regulation is to avoid, as far as possible, a calculation down to the day (Blüggel in jurisPK-SGB XII, § 44 SGB XII, marginal note 2)
Therefore, if circumstances change to the detriment of the beneficiary, the new benefit period, as per sentence 3, only begins at the start of the following month. However, Section 44 Paragraph 1 Sentence 2 of the German Social Code, Book XII (SGB XII), cannot, according to the purpose and intent of the provision, refer to one-off increases in need within a single month. Because the additional (one-off) need arises on a specific day of the month and is neither to be allocated to the total monthly need nor does it relate to the needs of subsequent months, the issue is neither about avoiding a day-by-day calculation of the monthly benefit, nor can a new benefit period be initiated at a later date.
The legislative materials support this interpretation. While there are no explanatory memorandums for Section 44 of the German Social Code, Book XII (SGB XII) itself, the legislative materials for the Basic Income Support Act (GSiG) can be consulted (see also Blüggel in jurisPK-SGB XII, Section 44 SGB XII, marginal note 3). These materials state, regarding the substantively identical provision of Section 6 of the GSiG (Bundestag printed matter 14/5150, p. 51 on Section 6), that benefits are set in monthly amounts and granted in periods of time. Any changes in circumstances that are significant for the granting or amount of the benefit must be reported immediately.
Any resulting change in the entitlement in favor of the beneficiary should then lead to a new approval period beginning on the first day of the month in which the change occurred and was reported. Otherwise, the new approval period begins on the first day of the month following the month in which the change occurred. Although this statement in the explanatory memorandum to the law, insofar as it does not merely refer to a change to the detriment of the entitled party, has no basis in a statutory provision – otherwise it may be based on the understanding, not shared by the Senate, that the general provisions of administrative procedure law do not apply at all (cf. on this issue: BSG SozR 4-1300 § 44 No. 15 para. 14 et seq.; BSG, judgment of 10 November 2011 – B 8 SO 12/10 R – para. 32) – it nevertheless shows that the legislator had in mind changes that continue beyond the period of one month, i.e., with regard to additional needs, that arise again and again in the subsequent period, and do not merely remain unmet as a one-off need.
Contrary to the defendant's view, Section 18 Paragraph 1 of the German Social Code, Book XII (SGB XII) does not preclude a subsequent payment to the plaintiff.
Social assistance, with the exception of basic income support for the elderly and those with reduced earning capacity, then begins as soon as the social assistance provider or the agency commissioned by it becomes aware that the conditions for the benefits are met. Apart from the fact that, according to explicit statutory provisions, the so-called knowledge principle is already replaced by the application principle for basic income support benefits, and neither the continued payment of basic income support benefits after the end of a benefit period (cf. BSGE 104, 207 ff = SozR 4-3530 § 6 No. 1) nor a change in needs during the benefit period requires a new application (cf. regarding the comparable situation under SGB II BSG SozR 4-4200 § 22 No. 38), Section 18 SGB XII is intended only to ensure low-threshold access to social assistance law (BSG SozR 4-1300 § 44 No. 15 para. 20; Coseriu in jurisPK-SGB XII, § 18 SGB XII para. 13 ff with further references; cf. also BSG SozR 4-3500 § 18 No. 1 para. 24).
The primary purpose of Section 18 of the German Social Code, Book XII (SGB XII) is not to exclude benefits retroactively, but rather to ensure timely intervention by the social welfare agency even without an application (Federal Social Court [BSG] SozR 4-3500 § 18 No. 1, para. 24). Therefore, the required knowledge need not relate to the amount of the benefit to be provided, but solely to the need and the eligibility for assistance; the social welfare agency must thus only be aware of the need itself (Coseriu, ibid., para. 15).
The fact that the plaintiff herself paid the outstanding utility and heating bill – without financial assistance from third parties – before claiming it from the defendant does not negate her need and entitlement to higher benefits. The same applies in this respect as with benefits with retroactive effect pursuant to Section 44 of the German Social Code, Book X (see BSGE 104, 213 ff., paragraphs 13 ff. = SozR 4-1300 § 44 No. 20).
3. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
3.1 – State Social Court of Baden-Württemberg, judgment of 18 January 2012, – L 3 AS 3615/11 –, appeal allowed
Contributions to private health insurance that exceed the subsidy to be covered under Section 26 Paragraph 2 of the German Social Code, Book II (SGB II), are included in the flat-rate allowance of €30.00 pursuant to Section 6 Paragraph 1 Number 1 of the German Regulation on Unemployment Benefit II (Alg II-V), in accordance with Section 11b Paragraph 1 Number 3 of the SGB II. Actual expenses exceeding this amount cannot be deducted from the recipient's income.
3.2 – Bavarian State Social Court, Judgment of 20 December 2011, – L 11 AS 197/10 –
The employment relationship established between a measure provider and a person in need of assistance pursuant to Section 16 Paragraph 3 of the German Social Code, Book II (SGB II) is of a public-law nature.
Through assignment, a unique type of public-law employment relationship is established between the person in need of assistance and the service provider (see Federal Social Court [BSG], judgment of August 27, 2011 – B 4 AS 1/10 with further references). It is irrelevant whether the work opportunity is carried out with a legal entity under public law, a natural person, or a legal entity under private law, as the assignment is always based on a public-law act and determines the rights and obligations between the eligible person and the service provider (cf. decision of the Senate of May 13, 2009 – L 11 AS 159/09 B ER with further references).
The claim for additional expense compensation is directed against the social security agency responsible for benefits under Book II of the German Social Code (SGB II) (Eicher in: Eicher/Spellbrink, SGB II, 2nd ed., § 16 para. 242). It is a public-law social benefit claim. The employer/agency can handle the billing and payment by forwarding the claim; however, in case of dispute, the claim must be asserted against the basic income support provider (Voelzke in: Hauck/Noftz, SGB II, as of June 2011, § 16d para. 76). Furthermore, the claim for additional expense compensation exists only for work actually performed, not for work that was missed (cf. Eicher, ibid., para. 243a with further references).
The plaintiff also has no claim – even with a corresponding interpretation of the claim regarding the "lost additional expense allowance" – to compensation for the value of the work performed by way of a public-law claim for reimbursement (see Federal Social Court [BSG], judgment of August 27, 2011 – B 4 AS 1/10 R; judgments of April 13, 2011 – B 14 AS 98/10 R – and – B 14 AS 101/10 R – all available on juris). Such a claim requires the performance of an activity within the framework of a work opportunity that leads to a conscious and purposeful increase in another's assets (cf. Federal Social Court [BSG], judgment of August 27, 2011 – B 4 AS 1/10 R – and judgment of April 13, 2011 – B 14 AS 98/10 R – both available on juris). However, after the termination of his assignment with the defendant on January 15, 2009, the plaintiff did not perform any further work for either the defendant or the city of A-Stadt that could have led to an increase in assets.
4. Decisions of the social courts on basic income support for job seekers (SGB II)
4.1 – Social Court Berlin, decision of 20 January 2012, – S 174 AS 31567/11 –
The decisive factor for determining inaction within the meaning of Section 88 of the Social Court Act (SGG) is the point in time when the decision is announced, not the point in time when the decision is prepared. This is because the decision is only issued and thus becomes legally valid upon its notification to the addressee (Sections 37, 39 of Book Ten of the German Social Code (SGB X)) – i.e., in the case of written decisions, upon receipt (Federal Social Court (BSG), judgment of March 14, 1996 - 7 Rar 84/94 -). (cf. BSGE 64, 17, 22).
5. Prof. Dr. Helga Spindler, in info also 2011, 270, on decisions regarding written notification of legal consequences in the case of sanctions
In the case of sanctions, particularly following the amendment of Section 31 of the German Social Code, Book II (SGB II), individual attention must be paid to the written notification (see, in general, Berlit, Changes to the Sanctions Law of the SGB II as of April 1, 2011, info also 2011, 53-57). If the written notification is already legally flawed because it consists of an incomprehensible listing of all possible sanctions and obligations to cooperate, then it cannot be assumed that the person concerned could have been aware of the legal basis for the sanctions. This widespread lack of knowledge regarding the specific consequences was confirmed by the expert representative of the authorities, Norbert Maul, during the oral hearing before the Bundestag Committee on the Effects of Sanctions on June 6, 2011.
Of course, even correct individual instruction says little about the justification for the sanction and the consideration of any important reasons the person affected may have. But if even the instruction is not given correctly, then that is at least an indication that neither communication nor the "tailored" placement and integration is working. It is distressing when minor children are among those affected by these decisions.
Source: Information also from 2011
sozialrechtsexperte.blogspot.com
Comment on: Prof. Dr. Helga Spindler in info also 2011, 270 on decisions regarding written notification of legal consequences in the case of sanctions
Excerpt from Berlit aaO:
Knowledge of legal consequences instead of instruction
Written instruction regarding the legal consequences of a breach of duty is equivalent to "knowledge" of such consequences; proof of written instruction regarding the legal consequences is not required in this case.(21) The provision was rightly criticized in the hearing on the draft law(22) – also as impractical. It is not unconstitutional – provided it is interpreted restrictively in accordance with the constitution.
The explanatory memorandum to the law is silent on the precise requirements for this knowledge. The standard must be the equal status intended by the legislator for written notification of legal consequences and actual knowledge of those consequences. The wording itself requires actual knowledge; mere "must know," i.e., attributable, (grossly) negligent ignorance of the legal consequences, or "could know" (§ 45 para. 2 sentence 3 no. 3 SGB X) is insufficient. Because of this equal status, only (actual) knowledge that is equivalent to the case-specific written notification of legal consequences with regard to its potentially action-guiding effects, in particular its warning and signaling function, is sufficient. What is required is positive, current knowledge on the part of the respective benefit recipient of the specific legal consequences that a particular breach of duty will have in a specific situation.
The beneficiary must – at least within the framework of a layperson's understanding – grasp and comprehend that a particular course of action will have legal consequences and what those consequences will be. In addition to clear knowledge of the differentiated legal consequences, the ability to access and intellectually process this knowledge in a specific action or conflict situation is also required. Abstract knowledge from the past must still be relevant to the beneficiary and so firmly anchored in their consciousness that it can still guide their actions in the current situation. General instructions in forms and templates, as well as written information about legal consequences, are insufficient.
Knowledge can be imparted through prior notices/instructions regarding legal consequences as well as through oral instruction. Written instructions regarding legal consequences in the past are irrelevant for determining knowledge if there are significant reasons (e.g., language difficulties, illiteracy) to suggest that they were not taken notice of or understood.
Errors in a written notification of legal consequences cannot generally be remedied by (positive) knowledge. Even if the written notification of legal consequences is incorrect, insufficient, internally contradictory, or flawed, the beneficiary may generally rely on it and is not required to assume that their legal knowledge is superior to that of the benefit provider. Only in rare exceptional cases will the beneficiary currently possess such clear, nuanced, and certain legal knowledge that they would recognize the errors in the notification of legal consequences.
The service provider must demonstrate and, if necessary, prove their differentiated knowledge.
21 BT-Drs. 17/3404, 111.
22 BT – Committee on Labour and Social Affairs –, Expert hearing of 22 November 2010; including compilation of the written statements (Committee document 17(11)309 of 16 November 2010) and the hearing record (Prot. 17/41).
See also, for example, Berlit in LPK-SGB II, 4th ed., § 31Rn 79 ff; Herold-Tews in Löns-Herold/Tews, SGB II, 3rd ed., § 31Rn 5 ff.; Geiger in Leitfaden zum Arbeitslosengeld II, 8th ed., p. 613, knowledge of the legal consequences.
Source: Info also 2011
Sozialrechtsexperte.blogspot.com
6. Commentary by Prof. Hans-Ulrich Weth in info also 2011, 276-277 on SG Berlin, Decision of 30.09.2011 – S 37 AS 24431/11 ER – Immediate repayment of a rental deposit loan by set-off
Section 22 Paragraph 6 Sentence 3; Sections 39, 42a Paragraph 2 Sentence 1 SGB II
Immediate repayment of a rent deposit loan by offsetting
Social Court Berlin, Decision of 30.09.2011 – S 37 AS 24431/11 ER
Editorial policy
A ten percent reduction in the standard benefit over a longer period (here 23 months) to repay a rental deposit loan is inadmissible.
Note by Prof. Hans-Ulrich Weth in info also 2011, 276-277
Without paying a security deposit or providing similar security (guarantee), apartment seekers generally cannot rent an apartment. If the applicant is eligible for benefits under the German Social Code, Book II (SGB II) or Book XII (SGB XII), and there are no other available means of securing the deposit, the benefits agency may, and often must, cover the deposit (§ 22 para. 6 SGB II, § 35 para. 2 sentence 4 SGB XII). As a rule, a rental deposit should be provided as a loan. Contrary to widespread administrative practice, case law and legal literature have largely agreed that immediate repayment of the rental deposit loan by offsetting a portion of the standard benefit payment is not permissible (see the references cited by the Berlin Social Court). The legislator has countered this view with the new regulation in Section 42a Paragraph 2 Sentence 1 of the German Social Code, Book II (SGB II), which has been in effect since April 1, 2011, to the detriment of benefit recipients, by establishing an immediately applicable automatic repayment mechanism for all loans granted under the SGB II, including rent deposit loans, through monthly offsetting of 10 percent of the standard benefit.
Source: Information also from 2011
sozialrechtsexperte.blogspot.com
7. SG Kiel, decision of 16.11.2011, - S 29 AS 512/11 ER –
Money for the school bus is usually charged for journeys to school exceeding 30 minutes!
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
