1. Decisions of the state social courts on basic income support for job seekers (SGB II)
1.1 – Baden-Württemberg State Social Court, Judgment of 15 November 2011, – L 13 AS 3083/10 –
An assignment of a life insurance policy contrary to Section 13 Paragraph 4 of the General Terms and Conditions of Insurance (ALB) is absolutely invalid until written notification is given, so that the invalidity of the disposition can be asserted by anyone.
There is no impediment to exploitation even if there is an obligation to assign the claim, but exploitation contrary to this obligation does not justify a right of termination.
sozialgerichtsbarkeit.de
Note by Willi 2: Lower Saxony-Bremen State Social Court, Judgment of April 15, 2011, – L 13 AS 333/10 –
Assigned tax refunds to tax advisors are considered income
(sociallawexpert.blogspot.com)
1.2 – Berlin-Brandenburg State Social Court, Judgment of 14 December 2011, – L 10 AS 654/10 –
Section 22 Paragraph 1 Sentence 2 of the German Social Code, Book II (SGB II) is applicable by analogy if the rent of a benefit recipient living in acceptable housing conditions increases during the period of benefit receipt because he concludes a modernization agreement with the landlord, according to which the costs are passed on to him.
According to Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), benefits for accommodation and heating are provided in the amount of the actual expenses, insofar as these are reasonable. The concept of reasonableness, which is subject to full judicial review and does not grant the benefit provider any discretionary power (Federal Social Court [BSG], Judgment of November 7, 2006 – B 7b AS 10/06 R, juris; Berlit in LPK-SGB II, 4th ed., Section 22, marginal note 40), is primarily to be determined abstractly according to the living space and the standard of living. The decisive factor is the product of (abstractly) reasonable living space and (abstractly) reasonable rent per square meter (so-called product theory; fundamentally, Federal Social Court [BSG], Judgment of November 7, 2006 – B 7b AS 18/06 R, juris, marginal notes 17 ff.; see also Berlit, ibid., marginal note 52). The specific circumstances only play a role insofar as it may be necessary to examine conclusively whether a person entitled to benefits actually has the opportunity to rent an apartment that is considered appropriate in the abstract on the respective housing market (BSG, aaO RdNr 22).
Based on this, the fact that the plaintiff concluded the modernization agreement leading to the rent increase on her own initiative is, contrary to the defendant's view, not to be taken into account for the substantive determination of appropriateness.
Considerations of fault may not, in principle, be taken into account when determining need (Federal Social Court, judgment of September 27, 2011 – B 4 AS 202/10 R, juris para. 17), but can at most (in the case of granting increased benefits) lead to a claim for reimbursement under Section 34 Paragraph 1 Sentence 1 Number 1 of the German Social Code, Book II (SGB II) (however, this provision has so far only been associated with cases of serious socially unacceptable behavior – which is not the case here, see Schwitzky in LPK-SGB II, Section 34 para. 17 et seq.). Section 2 Paragraph 1 of the SGB II cannot be invoked against the plaintiffs for this reason alone, because this provision does not establish an independent ground for exclusion (Federal Social Court, ibid. para. 21).
Note by Willi 2: BSG, Judgment of 19.10.2010, – B 14 AS 2/10 R –
Housing costs are covered in the amount of the actual expenses, insofar as they are reasonable (see Section 22 Paragraph 1 Sentence 1 SGB II).
This includes all payment obligations arising from the tenancy agreement for the accommodation (cf. most recently BSG SozR 4-4200 § 22 No. 20, para. 20, regarding the usage fee for kitchen furnishings, with further references). In addition to the net rent owed and the advance payment for operating costs, this also includes the costs for the cable connection (see BSGE 102, 274 = SozR 4-4200 § 22 No. 18) and the modernization surcharge. Insofar as the landlord passes on the costs of a modernization measure to the tenant pursuant to Section 559 of the German Civil Code (BGB), these costs, even if they continue to be itemized separately, are part of the contractually owed (net) rent.
2. Decisions of the social courts on basic income support for job seekers (SGB II)
2.1 – Wiesbaden Social Court, decision of 03.01.2012, – S 23 AS 899/11 ER –
Student receives English tutoring as a Hartz IV benefit § 28 para. 5 SGB II
Following the adoption of the so-called "education package," the payment for tutoring must, in exceptional cases, be made by the Hartz IV provider if it involves short-term assistance that is suitable and necessary to achieve the student's academic goals. This was decided by the Wiesbaden Social Court in an expedited ruling published today.
The student, originally from the Rheingau-Taunus district, had attended a special needs school until the end of ninth grade, where no English was taught. Due to his exceptionally good performance, he was able to obtain a basic secondary school leaving certificate (without an English exam) as an "external" student at a regular secondary school.
He is now in the 10th grade of secondary school with the goal of obtaining a qualified secondary school leaving certificate. Due to the English skills required for the certificate, the teacher recommended private tutoring.
Two 90-minute sessions per week cost €134.00 per month. The Hartz IV agency rejected the application for funding for the tutoring program, arguing that the student was not due to be promoted to the next grade level and already possessed a basic secondary school leaving certificate.
Following testimony from the school principal and the class and English teachers, the court ruled that the tutoring costs are to be covered as a Hartz IV benefit. According to the current assessment, the tutoring is both appropriate and necessary for the student to achieve the qualified secondary school leaving certificate due in May. The learning objective in this case is successful completion of the certificate, not promotion to the next grade. The court explicitly emphasized that the tutoring is not intended to enable students who are not suited to it on their own to attend a higher-level school. The student, described as very diligent and committed, qualified for the current school track through his own efforts. The need for support is not due to a lack of intellectual aptitude for the current school type, nor to past misconduct (e.g., significant absences).
The student needs the learning support because no English lessons were given in the type of school he previously attended, and he now has to make up for this deficit within a very short time.
According to the teachers, this is a unique case in which a former special needs student succeeds in obtaining a basic secondary school leaving certificate and then transferring to the tenth grade of secondary school with the aim of obtaining a qualified certificate.
Full text:
sozialgerichtsbarkeit.de
Note by Willi 2: State Social Court of Saxony-Anhalt, decision of 13.05.2011, – L 5 AS 498/10 B ER –
For information on the requirements for the reimbursement of tutoring costs, see
sozialrechtsexperte.blogspot.com
2.2 – Social Court Detmold, Judgment of 02.12.2011, – S 10 AS 220/11 –
Job centers are not required to cover loan repayments as housing costs if the Hartz IV recipient lives in an unsuitable house and the repayments are not only payable for a short period but for many years (16 years).
According to Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), benefits for accommodation and heating are generally provided in the amount of the actual expenses, provided they are reasonable. If the accommodation expenses exceed what is reasonable in the specific circumstances of the individual case, they are to be considered as part of the needs of the single person in need of assistance or the household as long as it is not possible or reasonable for them to reduce the expenses, but generally for no longer than six months. When calculating costs for a self-occupied house, the actual costs incurred in each month are to be considered, provided that, viewed over the entire year, they do not exceed the reasonable limit of Section 22 SGB II (cf. for the calculation of heating costs, Federal Social Court (BSG), judgment of September 19, 2008, case no.: B 14 AS 54/07 R).
The expenses for accommodation and heating in the aforementioned sense, for which benefits are to be provided, do not generally include the repayment installments demanded by the plaintiff.
Benefits under the German Social Code, Book II (SGB II), are limited to securing current subsistence and are not intended for wealth accumulation. Exceptions to this principle, given the strong protection of the basic need for housing under SGB II, are only warranted in exceptional cases, such as maintaining home ownership whose financing is largely complete at the time basic income support is received (see Federal Social Court (BSG), judgment of July 7, 2011, case no.: B 14 AS 79/10 R). However,
such an exceptional case, as recognized by the BSG in case B 14/11b AS 67/06 R (judgment of June 18, 2008), does not exist here. In that case, the condominium, financed with an annuity loan, was already largely paid off. In this case, the Federal Social Court (BSG) has ruled that, at least when the costs in the form of loan repayments are unavoidable because otherwise the loss of the self-occupied residential property is imminent, the assumption of the loan repayments as accommodation costs within the meaning of Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II) is possible.
The decisive criterion is whether it is justified that the aspect of wealth accumulation from means of subsistence security takes a back seat to the goal, also pursued by the SGB II, of enabling the retention of the apartment (BSG, judgment of 07.07.2011, file no.: B 14 AS 79/10 R).
The plaintiff's loan repayment was scheduled for 2025. Therefore, the repayments are not only due for a short period, but will continue for many years (16). For this reason alone, this is not an exceptional case in which loan repayments can be recognized as housing costs. Furthermore, even if the defendant were to take the loan repayments into account, the plaintiff would not be able to keep the house. The house is occupied by a total of three people. According to the per capita principle (see below), the plaintiff would at most be entitled to reimbursement of one-third of the costs. However, the plaintiff herself has stated that she can only keep the house if the defendant assumes all of the loan repayments.
If maintaining the accommodation is not possible even with the assumption of loan repayments, it is not justified to subordinate the aspect of asset accumulation to the objective, also pursued by the German Social Code, Book II (SGB II), of enabling the occupant to retain their accommodation. The same applies because the plaintiff's house is deemed unsuitable. Those in need of assistance only have a legitimate interest in maintaining their own accommodation if it is suitable within the meaning of Section 12 Paragraph 3 No. 4 of the SGB II (see Schleswig-Holstein Higher Social Court, decision of December 9, 2010, file no.: L 6 AS 195/10 B ER). Even assuming three occupants in this case, a living space of no more than 110 square meters would be considered suitable (see Federal Social Court, judgment of July 2, 2009, file no.: B 14 AS 33/08 R)
Note by Willi 2: BSG, Judgment of 07.07.2011, – B 14 AS 79/10 R-
Monthly loan repayments for an interest-free deferred purchase price of a single-family home – acquired without equity capital while receiving tax-funded social benefits – are not considered accommodation costs under Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II).
(sozialrechtsexperte.blogspot.com
2.3 – Social Court Detmold, Judgment of 10 October 2011, – S 10 (8) AS 301/08 –
The revocation and reimbursement notice is unlawful because if administrative acts are not completely but only partially revoked, the principle of legal certainty requires that the revocation and reimbursement notice must specify which individual benefits have been revoked.
In cases where benefits are only partially revoked, the recipient cannot, even with the help of the original notices, calculate which benefits, in what amount, and for which months have been revoked. This information is necessary to assess the legality of the revocation decision.
The revocation and reimbursement order of February 12, 2008, submitted here for legal review, does not meet these requirements of specificity. In the first part of the operative clause, the defendant initially ordered the revocation of benefits for the period from February 1, 2006, to November 30, 2006. In the second part, he demanded reimbursement from the plaintiff for the benefits for the period from February to October 2006. Aside from the fact that it is already incomprehensible that the first part of the operative clause refers to a revocation until December 2006, yet benefits are only being reclaimed up to October, the operative clause also fails to specify which benefits were revoked and in what amounts, broken down by month. It is only apparent from the amount being reclaimed that the benefits were only partially revoked.
This lack of specificity was not remedied by the issuance of the decision on the objection pursuant to Section 41 of the German Social Code, Book X (SGB X). While the defendant did attach calculation protocols to the decision on the objection, showing which benefits were revoked for which month, the lack of specificity is not merely a procedural or formal error, but rather a case of substantive illegality that cannot be remedied under Section 41 of the SGB X (see Federal Social Court (BSG), judgment of July 13, 2006, case no.: B7a AL 24/05 R; Higher Social Court (LSG) of Lower Saxony-Bremen, judgment of August 10, 2011, case no.: L 15 AS 1036/09).
Note by Willi 2: Lower Saxony-Bremen State Social Court, judgment of 10 August 2011, – L 15 AS 1036/09 –
A person in need of assistance (HB) can invoke protection of legitimate expectations if their partner did not mention the plaintiff's student status in the initial application for ALG II (unemployment benefit II).
A blanket partial revocation of all decisions for an entire period in the amount of a total sum does not meet the requirements of specificity under Section 33 Paragraph 1 of the German Social Code, Book X (following the Federal Social Court's ruling of August 15, 2002 – B 7 AL 66/01 R).
sozialrechtsexperte.blogspot.com
3. Decisions of the social courts on social assistance (SGB XII)
3.1 – Marburg Social Court, Judgment of 10 January 2012, – S 9 SO 90/11 –
The new regulation of standard needs in § 28 SGB II by the Law on the Determination of Standard Needs pursuant to § 28 of the Twelfth Book of the Social Code (Standard Needs Determination Act - RBEG) is constitutional.
The Chamber refers in this regard to the law on the determination of standard needs pursuant to Section 28 of the Twelfth Book of the Social Code - Standard Needs Determination Act (RBEG).
Pursuant to Section 1 of the Standard Benefit Rates Act (RBEG), the legislator determined the standard benefit rates based on a special evaluation of the 2008 Income and Expenditure Survey according to Section 28 of the German Social Code, Book XII (SGB XII), in accordance with Sections 2-8 of the RBEG. The determination of standard benefit rate 1 is based on the consumer expenditures of households in which one adult lives alone (single-person households) (Section 2 RBEG). According to Section 4, Sentence 1 RBEG, the reference households defined in Section 2 RBEG are based on the single-person and family households from the 2008 Income and Expenditure Survey, stratified by their net income. After excluding the households not to be considered according to Section 3, Paragraph 1 RBEG, the lowest 15% of households are considered as reference households for determining the standard benefit rates for single-person households according to Section 2, No. 1 RBEG (Section 4, Sentence 2, No. 1 RBEG).
Of the consumer expenditures of single-person households according to § 4 sentence 2 no. 1, the following consumer expenditures of the individual departments of the special evaluation for the standard benefit are taken into account for the determination of the standard benefit (relevant for the standard benefit):
Division 1 (Foodstuffs, non-alcoholic beverages) €128.46
Division 3 (Clothing and footwear) €30.40
Division 4 (Housing, energy and home maintenance) €30.24
Division 5 (Interior furnishings, household appliances and articles)
€27.41 Division 6 (Health care) €15.55
Division 7 (Transport) €22.78
Division 8 (Communication) €31.96
Division 9 (Leisure, entertainment, culture) €39.96
Division 10 (Education) €1.39
Division 11 (Accommodation and food service activities) €7.16
Division 12 (Other goods and services) €26.50
Section 5 paragraph 2 of the RBEG stipulates that the sum of the standard needs-relevant consumer expenditure of single-person households according to Section 5 paragraph 1 of the RBEG amounts to EUR 361.81.
Further details regarding the rule-relevant expenditures of departments 1 to 12 can be found in the explanatory memorandum to the law in printed document BR 661/10 of 21.10.2010, p. 197ff.
For these reasons, it is incomprehensible why the calculation of the standard benefit should not have been carried out in a transparent manner.
Furthermore, the Chamber did not agree that the level of standard benefits is constitutional; in this respect, the Chamber shares the view expressed by the Bavarian State Social Court in its decision of 10 August 2011 (Case No.: L 16 AS 305/11 NZB).
The court does not share the plaintiff's view that the determination of standard benefit rates under the RBEG (Standard Benefit Rate Calculation Act) does not comply with the requirements of the Federal Constitutional Court (BVerfG). In its decision of January 9, 2010 (Case Nos.: 1 BvL 1/09, 1 BvL 3/09, 1 BvL 4/09), the Federal Constitutional Court stated that, in order to determine the scope of entitlement, the legislature must assess all essential living expenses in a transparent and appropriate procedure, realistically and comprehensibly, based on reliable figures and sound calculation methods. As already explained, it is not apparent that the RBEG fails to adequately meet these standards.
sozialgerichtsbarkeit.de
Comment by Willi 2: Aachen Social Court Judgment of December 13, 2011, – S 20 SO 79/11 –, appeal allowed
There are no constitutional concerns regarding standard benefit level 3.
sozialrechtsexperte.blogspot.com
4. Note on: BSG 8th Senate, Judgment of 25.08.2011 – B 8 SO 20/10 R –
No limitation to flat-rate reimbursement rates by the social welfare provider in the context of the necessity of funeral expenses according to § 74 SGB XII
BSG, judgment of 08/25/2011 – B 8 SO 20/10 R
No limitation to flat-rate reimbursement rates by the social welfare provider in the context of the necessity of funeral expenses according to § 74 SGB XII
Guiding principle for the comment
The question of the necessity of funeral expenses claimed against the social welfare provider under Section 74 of the German Social Code, Book XII (SGB XII) requires a precise case-by-case examination, taking into account the applicant's particular financial situation.
5. Article from ZfF-10/2011: The ban on entering the job center by Dr. Manfred Hammel
Re: Social network Citizens' group against social cutbacks – View topic – Regarding the ban on entering the job center (formerly ARGE)
Author of the legal case ticker: Willi 2 from Tacheles
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
