1. Decision of the Federal Social Court of October 6, 2011 on basic security for job seekers (SGB II)
1.1 – BSG, judgment of October 6th, 2011, – B 14 AS 171/10 R –
For a community of needs in which one member receives benefits according to SGB II, but the other receives basic benefits according to the Asylum Seekers Benefits Act, the reduction regulation in Section 20 Paragraph 3 Sentence 1 SGB II does not apply
In principle, Section 20 Paragraph 3 Sentence 1 SGB II can only cover constellations in which both adult members of the community of need are subject to the benefit system of SGB II. However, as the BSG has already decided, an analogous application of Section 20 Paragraph 3 Sentence 1 SGB II to those in need of help who are unable to work and who live with partners in a community of need comes (see BSG judgment of October 16, 2007 - B 8/9b SO 2/ 06 R – BSGE 99, 131 = SozR 4-3500 § 28 No. 1, RdNo. 19), into consideration if you are entitled to claim under SGB XII. In the case of a “mixed community of needs” between a person entitled to benefits under SGB II and a partner entitled to benefits under SGB XII, the regulations under SGB XII are incomplete. On the other hand, for mixed communities of need in which there is no entitlement to 90% of the standard benefit in accordance with Section 20 Paragraph 2 SGB II, as is the case with the community of needs here between a person entitled to benefits according to SGB II and a person entitled to benefits according to Section 3 AsylbLG, § 20 Paragraph 3 Sentence 1 SGB II not applicable.
2. Decision of the Federal Social Court of November 10, 2011 on social assistance (SGB XII)
2.1 - BSG, judgment of November 10, 2011, - B 8 SO 18/10 R -
The provision of Section 44 Paragraph 1 Sentence 2 SGB
The additional heating and operating costs must be paid as a benefit in accordance with Section 29 SGB XII, even if the person in need of assistance has already paid it and applied for it late.
The legality of the decision on the rejection of higher one-off payments for accommodation and heating costs is measured - contrary to other views in the social welfare law literature (H. Schellhorn in Schellhorn/Schellhorn/Hohm, SGB XII, 18th edition 2010, § 44 SGB XII No. 10; Schoch in Teaching and Practice Commentary (LPK) SGB XII, 8th edition 2008, § 44 SGB As of April 2005; Steimer in Mergler/Zink, Handbook of Basic Security and Social Assistance, § 44 SGB XII RdNo. 13, as of September 2008; Wenzel in Fichtner/Wenzel, SGB – to Section 48 Paragraph 1 Sentence 1 in conjunction with Sentence 2 No. 1 SGB Since SGB XII came into force at the latest, the provisions of §§ 39 ff SGB 44 No. 11; Falterbaum in Hauck/Noftz, SGB XII, K § 44 RdNr 9, as of March 2009).
According to Section 48 Paragraph 1 Sentence 1 in conjunction with Sentence 2 No. 1 SGB a significant change has occurred.
When assessing the materiality of the change within the meaning of Section 48 Paragraph 1 SGB Wulffen, SGB
Insofar as an independent concept of materiality (at least 15% higher benefits) is represented in the literature on social welfare law (see only: Falterbaum in Hauck/Noftz, SGB XII, K § 44 SGB SGB II/SGB XII, § 44 SGB § 44 Sentence 2 and Sentence 3 SGB 44 SGB XII RdNo 3).
According to Section 42 Paragraph 1 No. 2 SGB XII in conjunction with Section 29 Paragraph 1 and Paragraph 3 SGB XII, services for accommodation and heating are provided in the amount of the actual expenses. One-off costs are also subject to this regulation and represent a requirement in the month in which they are due (BSG, judgment of April 6, 2011 - B 4 AS 12/10 R - RdNo 15); However, within the framework of Section 48 Paragraph 1 Sentence 2 No. 1 SGB .
In the absence of any other regulations, the plaintiff's landlord's additional claim became due upon her assertion; It is not necessary to check whether the landlord's demand was justified. It is sufficient that the plaintiff's payment was made on the basis of an agreement, i.e. it was a serious claim (BSGE 104, 179 ff No. 16 mwN = SozR 4-4200 § 22 No. 24).
Section 44 Paragraph 1 SGB XII makes it clear overall that the regulation only regulates an approval period of more than one month (usually twelve months according to sentence 1). In this respect, sentence 2 expressly refers to such an approval period, the start of which is brought forward to the beginning of the month for practical reasons (applicability of the monthly principle) in favor of the benefit recipient; The aim of this regulation is to avoid daily calculations as far as possible (Blüggel in jurisPK-SGB XII, § 44 SGB XII RdNo 2
Therefore, in the event of a change in circumstances to the detriment of the beneficiary under sentence 3, the new approval period only begins at the beginning of the following month. However, according to the meaning and purpose of the provision, Section 44 Paragraph 1 Sentence 2 SGB XII cannot refer to one-off increases in requirements in a single month. Because the additional (one-off) requirement occurs on a specific day of the month and cannot be divided into the total monthly requirement nor does it relate to the requirement of the following months, it is neither a question of avoiding a day-by-day calculation of the monthly benefit nor can it be done at a later point in time new approval period can be initiated.
The legal materials prove the correctness of this interpretation. There are no legal justifications for Section 44 SGB XII itself; However, the legal materials for the Basic Security Act (GSiG) can be used (including Blüggel in jurisPK-SGB XII, § 44 SGB XII RdNo. 3). It states that the provisions of Section 6 GSiG, which have the same content (BT-Drucks 14/5150, p. 51 on Section 6), are set in monthly amounts and approved over time. If changes occur in the circumstances that are significant for the granting or amount of the benefit, this must be reported immediately.
A resulting change in the entitlement in favor of those entitled should then lead to a new approval period beginning on the first of the month in which the change occurred and was communicated. Otherwise, the new approval period begins on the first of the month following the change. Although this statement in the justification for the law, if it does not simply refer to a change to the detriment of the person entitled, has no basis in a legal regulation - it may otherwise be based on the understanding, not shared by the Senate, that the general provisions of administrative procedural law do not apply at all (see on this issue: BSG SozR 4-1300 § 44 No. 15 RdNr 14 ff; BSG, judgment of November 10, 2011 - B 8 SO 12/10 R - RdNr 32) - it shows that the legislature is making changes Eyes that continue to have an effect beyond the duration of a month, that is, in relation to additional needs that arise again and again in the following period, and do not just remain unmet as a one-off need.
Contrary to the defendant's opinion, § 18 Paragraph 1 SGB XII does not prevent a subsequent payment to the plaintiff.
According to this, social assistance, with the exception of basic security payments in old age and in the event of reduced earning capacity, begins as soon as the social assistance provider or the agency commissioned by it becomes aware that the requirements for the benefits have been met. Apart from the fact that in the case of basic security benefits, according to the express legal order, the so-called knowledge principle is replaced by the application principle and neither the continued payment of basic security benefits after the end of an approval period (cf. BSGE 104, 207 ff = SozR 4-3530 § 6 No. 1) nor a change in needs during the approval period requires a new application (see the comparable situation within the framework of SGB II BSG SozR 4-4200 § 22 No. 38), § 18 SGB XII is only intended to ensure low-threshold access to social assistance law (BSG SozR 4-1300 § 44 No. 15 RdNr 20; Coseriu in jurisPK-SGB XII, § 18 SGB
It is not the primary task of Section 18 SGB The knowledge therefore need not relate to the level of service to be provided, but rather solely to the need and need for help; The social welfare provider only needs to be aware of the need as such (Coseriu, ibid., paragraph 15).
The fact that the operating and heating costs bill due was paid by the plaintiff herself - without the financial help of third parties - before the claim was made to the defendant, does not eliminate her need and entitlement to higher benefits. In this respect, nothing different applies than for benefits with effect for the past in accordance with Section 44 SGB
3. Decisions of the state social courts on basic security for job seekers (SGB II)
3.1 - State Social Court of Baden-Württemberg, judgment of January 18, 2012, - L 3 AS 3615/11 -, appeal permitted
Contributions to private health insurance that exceed the subsidy to be paid in accordance with Section 26 Paragraph 2 SGB II are, within the framework of Section 11b Paragraph 1 No. 3 SGB II, of the flat rate of EUR 30.00 in accordance with Section 6 Paragraph 1 No 1 Alg II-V includes. Actual higher expenses cannot be deducted from the beneficiary's income.
3.2 – Bavarian State Social Court, judgment of December 20, 2011, – L 11 AS 197/10 –
The employment relationship established between a measure provider and a person in need of assistance in accordance with Section 16 Paragraph 3 SGB II is of a public law nature.
Through the assignment, a public law employment relationship of its own is established between the person in need of assistance and the person responsible for the measure (see BSG, judgment of August 27, 2011 - B 4 AS 1/10 with further references). It does not matter whether the work opportunity is carried out by a legal entity under public law, a natural person or a legal entity under private law, because the assignment is always based on an act under public law and determines the rights and obligations between the authorized person and the person responsible for the measure (cf Resolution of the Senate of May 13, 2009 – L 11 AS 159/09 B ER mwN).
The claim to compensation for additional expenses is directed against the SGB II service provider (Eicher in: Eicher/Spellbrink, SGB II, 2nd edition, § 16 para. 242). This is a social benefit entitlement under public law. Billing and payment can be carried out by the employer/sponsor by forwarding; Nevertheless, in the event of a dispute, the claim must be asserted against the basic social security provider (Voelzke in: Hauck/Noftz, SGB II, as of 06/2011, § 16d, paragraph 76). Otherwise, the claim to compensation for additional expenses only exists for the actual activity, not for those that have been canceled (see Eicher ibid Rn 243a with further references).
There is also no claim by the plaintiff - if the claim is interpreted accordingly with regard to the “loss of compensation for additional expenses” - to compensation for value by way of a claim for reimbursement under public law (see BSG, judgment of August 27, 2011 - B 4 AS 1/10 R; Judgments from April 13, 2011 – B 14 AS 98/10 R – and – B 14 AS 101/10 R – all juris). Such a claim requires the performance of an activity as part of a work opportunity that leads to a conscious and purposeful increase in someone else's assets (cf. 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 juris). However, after completing his assignment with the defendant on January 15, 2009, the plaintiff did not provide any further work to 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 security for job seekers (SGB II)
4.1 – Berlin Social Court, decision of January 20, 2012, – S 174 AS 31567/11 –
The decisive factor for the existence of inaction within the meaning of Section 88 SGG is the time at which the decision was announced and not the time at which the decision was made. Only when the decision is announced to the addressee (§§ 37, 39 SGB 10) - i.e. in the case of written decisions at the time of receipt (BSG, judgment of March 14, 1996 -7 Rar 84/94-) - is it issued and thus existing (cf. BSGE 64, 17, 22).
5. Prof. Dr. jur. Helga Spindler in info also 2011, 270 on decisions on written information on the legal consequences of sanctions
In the case of sanctions, in line with the new version of § 31 SGB II, attention must be paid to individual instructions when providing written instructions (cf. Berlit, changes to the sanctions law of SGB II as of April 1, 2011, info also 2011, 53-57 ). If the written instructions are legally incorrect because they consist of a confusing list of possible sanctions and obligations to cooperate, then it cannot be assumed that the person concerned could have been aware of the basis for the sanctions. This widespread ignorance of the concrete consequences was confirmed by the expert authority representative Norbert Maul at the oral hearing in the Bundestag Committee on the Effects of Sanctions on June 6, 2011.
Of course, the correct individual instruction says little about the justification for the sanction and the consideration of possible important reasons for those affected. But if even the instruction is not given correctly, then that is at least an indication that neither the communication nor the “tailored” teaching and integration is working. It is depressing when underage children are among those affected by decisions.
Source: Info also 2011
socialrightsexperte.blogspot.com
Note on: Prof. Dr. jur. Helga Spindler in info also 2011, 270 on decisions on written information on the legal consequences of sanctions
Excerpt from Berlit ibid:
Knowledge of legal consequences instead of instruction
“Knowledge” is equivalent to written instructions about the legal consequences of a breach of duty; In this case, proof of a written instruction on the legal consequences does not have to be provided. (21) The regulation was rightly criticized in the hearing on the draft law (22) - also as impractical. It is not unconstitutional – if interpreted in a constitutionally restrictive manner.
The justification for the law is silent on the exact requirements that must be placed on this knowledge. The benchmark must be the equal status of written information on legal consequences and knowledge of the legal consequences, as intended by the legislature. According to the wording, positive knowledge is required; It is not sufficient to “have to know”, i.e. the attributable, (grossly) negligent ignorance of the legal consequences, or to “be able to know” (Section 45 Paragraph 2 Sentence 3 No. 3 SGB X). Because of the equal status, only (positive) knowledge is sufficient, which is equivalent to the individual written legal consequences instructions with regard to the potential action-guiding effects, in particular the warning and signaling function. What is required is that the person entitled to benefits has positive, current knowledge of the specific legal consequences that a specific breach of duty will have in a specific situation.
The beneficiary must have realized and understood - at least within the framework of a parallel assessment in the lay sphere - that and what legal consequences will arise from a certain behavior. In addition to a clear knowledge of the different legal consequences, what is also required is the ability to access and intellectually process this knowledge in a specific action or conflict situation. An abstractly possible knowledge from the past must (be able to) still have a current effect on the beneficiary and be anchored in his or her consciousness in such a way that it can still have a guiding effect in the current situation. General instructions in forms and forms as well as written instructions on the legal consequences are not sufficient.
The knowledge may have been conveyed both through previous information/instructions on legal consequences and through oral instructions. Written instructions on the legal consequences in the past are irrelevant for knowledge if there are considerable reasons (e.g. language difficulties, illiteracy) that indicate that they were not noted or understood.
Errors in written instructions on the legal consequences cannot generally be compensated for by (positive) knowledge. Even if the written information on legal consequences is incorrect, inadequate, contradictory or incorrect, the person entitled to benefits may regularly rely on it and does not have to assume that their knowledge of the law is better than that of the service provider. Only in rare exceptional cases will the beneficiary currently have such clear, differentiated and reliable knowledge of the law that he will therefore recognize the errors in the instructions on the legal consequences.
The – differentiated – knowledge must be presented and, if necessary, proven by the service provider.
21 BT-Drs. 17/3404, 111.
22 BT - Committee for Labor and Social Affairs -, expert hearing from November 22, 2010,; In addition, a compilation of the written statements (Committee document 17(11)309 dated November 16, 2010) and the hearing minutes (Prot. 17/41).
See also, for example, Berlit in LPK-SGB II, 4th edition, § 31Rn 79 ff; Herold-Tews in Löns-Herold/Tews, SGB II, 3rd edition, § 31Rn 5 ff.; Geiger in Guide to Unemployment Benefits II, 8th edition, p. 613, knowledge of the legal consequences.
Source: Info also 2011
Sozialrechtsexperte.blogspot.com
6. Note by Prof. Hans-Ulrich Weth in info also 2011, 276-277 on SG Berlin, decision of. September 30, 2011 - S 37 AS 24431/11 ER - Immediate repayment of a rental deposit loan by offsetting
Section 22 Paragraph 6 Sentence 3;
§§ 39, 42a Paragraph 2 Sentence 1 SGB II Immediate repayment of a rental deposit loan by offsetting
SG Berlin, decision of. September 30, 2011 – S 37 AS 24431/11 ER
Guideline (of the editorial team)
A ten percent reduction in the standard requirement over a longer period of time (here 23 months) to repay a rental deposit loan is not permitted.
Note by Prof. Hans-Ulrich Weth in info also 2011, 276-277
Without paying a deposit or providing similar security (guarantee), apartment seekers generally cannot rent an apartment. If there is entitlement to benefits in accordance with SGB II or SGB As a rule, a rental deposit should be provided as a loan. In case law and literature, there has so far been broad agreement - contrary to widespread administrative practice - that immediate repayment of the rental deposit loan by offsetting part of the standard payment is not permitted (cf. the references cited by the SG Berlin). The legislature counteracted this view with the new regulation in Section 42a Paragraph 2 Sentence 1 of the SGB II, which has been in force since April 1, 2011, to the detriment of those entitled to benefits, by providing an immediate effect for all loans granted under SGB II without exception, including rental deposit loans Automatic repayment is constituted by a monthly offset of 10 percent of the standard requirement.
Source: Info also 2011
socialrightsexperte.blogspot.com
7. SG Kiel, resolution of November 16, 2011, S 29 AS 512/11 ER –
Money for the school bus, usually if the journey to school is more than 30 minutes!
A contribution from RA Helge Hildebrandt
Author of the case law ticker: Willi 2 von Tacheles
Source: Tacheles legal ruling ticker, www.tacheles-socialhilfe.de
