1. Decisions of the Federal Social Court of 16 February 2012 on basic income support for job seekers (SGB II)
1.1 – BSG, Judgment of 16.02.2012, – B 4 AS 14/11 R –
There is no entitlement to reimbursement of monthly loan repayments for owner-occupied residential property if the acquisition of the property occurred during the period of benefit receipt.
Repayment of loan debts can only be covered in exceptional cases as part of the housing costs allowance, because benefits under the German Social Code, Book II (SGB II) are limited to securing current subsistence and are not intended to serve the purpose of asset accumulation.
Against this background, the tension between the protection of home ownership on the one hand and the goals of securing one's livelihood on the other only exists if the acquisition of the property occurred outside of the period of receiving benefits.
Therefore, in accordance with the jurisprudence of the 14th Senate of the Federal Social Court (judgment of 7 July 2011 – B 14 AS 79/10 R), the assumption of an exceptional case is already precluded by the fact that the aspect of asset accumulation was clearly paramount here, because the plaintiffs had acquired the property at a time when they were already in need of assistance and dependent on unemployment benefits to secure their livelihood.
Against this background, it is no longer crucial whether the protection of the basic need for housing should be based on a concrete, individual standard or whether an abstract threat is sufficient.
Nevertheless, the Senate pointed out that, according to previous case law, the mere determination of a concrete and unavoidable need can open the door to an exceptional repayment obligation for job centers.
Note by Willi 2: BSG, Judgment of 07.07.2011, – B 14 AS 79/10 R-
Monthly repayment installments for an interest-free deferred purchase price for a single-family home – acquired without equity 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
1.2 – BSG, Judgment of 16.02.2012, – B 4 AS 89/11 R –
If the income of a minor child is the only income of the household and the child is dependent on the support of the household, the deduction of the insurance allowance for "family insurance" is excluded according to the established case law of the Federal Social Court (BSG).
His income should primarily be used to secure his livelihood and not to finance family insurance. Therefore, the same principle applies even if actual premium payments are proven, but these are for private family insurance policies, in this case, liability, household contents, and family international health insurance.
The contributions to private insurance claimed in addition to the pro rata contributions to family insurance were fundamentally inappropriate.
Regarding private children's accident insurance, it was found that recipients of income just above the basic income support threshold do not usually take out such insurance as a precautionary measure, and that the individual circumstances in the specific case do not necessitate taking out such insurance.
The unit-linked children's pension insurance is ultimately a capital-building savings investment which, like other savings investments, is unable to reduce income before it is taken into account when calculating benefits.
Regarding the supplementary health insurance, it should be noted that the plaintiff was covered under family insurance in the statutory health insurance scheme during the period in dispute, and his medical care in case of illness was therefore ensured.
Note by Willi 2: Saxony-Anhalt State Social Court, decision of June 23, 2011, – L 5 AS 129/11 B ER –
A minor child in need of assistance cannot deduct supplementary health insurance and (extended) accident insurance within the framework of a private protection policy from their child benefit pursuant to Section 11b Paragraph 1 No. 3 of the German Social Code, Book II (SGB II).
sozialrechtsexperte.blogspot.com
2. Decision of the Federal Social Court of 23 August 2011 on basic income support for job seekers (SGB II)
2.1 – BSG, Judgment of 23.08.2011, – B 14 AS 91/10 R –
Federal Social Court criticizes calculation of reasonable accommodation costs for Hartz IV benefits – Accommodation costs for owner-occupied properties – Preferential treatment of owners compared to tenants
Job centers are not allowed to simply use the average rents paid by Hartz IV recipients as a basis for determining reasonable accommodation costs, as this does not comply with the requirements of the Federal Social Court (BSG) for determining a coherent concept.
The job center has made every effort to be highly transparent regarding the investigative steps it has taken.
However, the data used does not meet the requirements of the case law, especially insofar as it comes exclusively from benefit recipients and the defendant calculated and used an average amount from the overall result.
Accommodation costs for self-occupied residential properties include all necessary expenses that are deductible when calculating income from renting and leasing (see Lang/Link in Eicher/Spellbrink, SGB II, 2nd edition 2008, § 22 marginal note 26). Section 7 paragraph 2 of the Ordinance implementing Section 82 of Book Twelve of the Social Code (SGB XII) juris BSHG§76DV) applies accordingly (see judgments of the Senate of 15 April 2008 – B 14/7b AS 34/06 R – BSGE 100, 186 = SozR 4-4200 § 12 No. 10 and of 19 September 2008 – B 14 AS 54/07 R -), insofar as it provides guidance on which costs are to be taken into account within the framework of Section 22 paragraph 1 of Book Two of the Social Code (SGB II) (see also BSG judgment of 24 February 2011 – B 14 AS 61/10 R -).
The costs that can be taken into account include, in particular, loan interest, but generally not repayment payments (see, in general, and regarding the exceptions concerning the consideration of repayment payments, the Senate's judgment of 7 July 2011 – B 14 AS 79/10 R –).
When determining the amount that is generally eligible for recognition, it must be taken into account that the appropriateness of accommodation costs for tenants and homeowners is to be determined according to uniform criteria and that the appropriateness of costs associated with the use of property is to be measured against the costs that are appropriate for rented accommodation (cf. in this regard the fundamental Federal Social Court judgment of 15 April 2008 – B 14/7b AS 34/06 R – BSGE 100, 186 = SozR 4-4200 § 12 No. 10).
The appropriateness of a house and property within the meaning of the protective provision of Section 12 Paragraph 3 Sentence 1 Number 4 of the German Social Code, Book II (SGB II), does not indicate the appropriateness of the accommodation costs for this house according to Section 22 Paragraph 1 of the SGB II. Both provisions only protect "the dwelling" in the sense of fulfilling the basic need for "housing" as the spatial center of life (cf. Federal Social Court judgment of July 2, 2009 – B 14 AS 32/07 R –), but not the property as an asset.
The plaintiffs (those in need of assistance) wrongly conclude from the protective provision of Section 12 Paragraph 3 Sentence 1 No. 4 SGB II that this is the "fundamental legislative decision to give preferential treatment to owners over tenants", which gives rise to the justification for determining the limit of reasonableness differently.
The Federal Social Court (BSG) has consistently clarified in its case law that Section 12 Paragraph 3 Sentence 1 Number 4 of the German Social Code, Book II (SGB II) does not address housing costs, but rather aims to prevent the need to sell a reasonably sized, owner-occupied house or apartment before receiving basic income support. Within the framework of assistance under the SGB II, however, all benefit recipients must be subject to uniform criteria in accordance with the principles of Article 3 Paragraph 1 of the German Basic Law (GG), meaning that owners and tenants must be treated equally with regard to benefits that serve to maintain their housing.
Despite efforts to meet the requirements established by case law for a coherent concept for determining reasonable accommodation costs, the defendant's "Guidelines for Determining Reasonable Accommodation Costs" do not comply with the requirements of the Federal Social Court (BSG) in one essential respect (see, e.g., judgment of September 22, 2009 – B 4 AS 18/09 R – BSGE 104, 192 = SozR 4-4200 § 22 No. 30 (Wilhelmshaven); judgment of December 17, 2009 – B 4 AS 27/09 R – SozR 4-4200 § 22 No. 27 (Essen)).
The defendant is proceeding on the basis of insufficient data or is not drawing the necessary conclusions from the data used.
Although the defendant used a data basis of 10% of the regionally relevant housing stock for determining the appropriate rental values (see BSG judgment of 18.6.2008 – B 14/7b AS 44/06 R -), the selected housing stock of 9788 apartments consists only of apartments belonging to benefit recipients under SGB II (78%), SGB XII (10%) and recipients of housing allowance (12%).
This means that only apartments listed under housing benefit recipients that are more expensive than a suitable apartment according to SGB II or SGB XII can be included. However, if only these apartments belonging to benefit recipients are used as the data basis, and the average is calculated from the resulting values, the resulting value is lower than what is considered acceptable for some benefit recipients.
To avoid this circular reasoning, a benefit provider can consider all apartments in the total housing stock, i.e., in addition to apartments of basic standards, also those of medium and high standards, and then determine an appropriate value from the rental prices thus obtained (BSGE 104, 192, 197 = SozR 4-4200 § 22 No. 30, RdNr 21).
The benefit provider can also – as in the present case – base its data collection solely on apartments of basic standards, but must then choose the upper price limit of this segment as the limit of what constitutes reasonableness. The defendant's chosen method of increasing the calculated average values by a safety margin X, however, does not represent a systematic procedure. The increase was neither applied uniformly to all apartment sizes, nor is it even discernible, let alone mathematically verifiable, how the respective increase is calculated.
When readjusting the limit of what is considered reasonable, it must also be taken into account that the data collection should include not only data from apartments actually offered on the market, but also data from apartments that are already rented (Federal Social Court judgment of 19 February 2009 – B 4 AS 30/08 R – BSGE 102, 263 = SozR 4-4200 § 22 No. 19).
Within the scope of the accommodation allowance, all living space that is actually rented for this purpose must be taken into account, including living space where the rent is fixed by law or in connection with a funding commitment (for more details and exceptions to this principle see BSG judgment of 22.9.2009 – B 4 AS 18/09 R – BSGE 104, 192 = SozR 4-4200 § 22 No. 30).
Willi 2's comment: The wave of Hartz IV lawsuits in Berlin continues – the main reason – unlawful granting of costs and accommodation based on a table
(sociallawexpert.blogspot.com)
3. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
3.1 – Berlin-Brandenburg State Social Court, Judgment of 08.12.2011, – L 20 AS 47/08 –
Repair and maintenance costs for the motor vehicle used to obtain earned income cannot be deducted according to (§ 11 para. 2 no. 5 SGB II).
Because, in principle, repair and maintenance costs of a motor vehicle cannot be taken into account under Section 11 Paragraph 2 No. 5 of the German Social Code, Book II (SGB II).
Section 11 paragraph 2 number 5 of the German Social Code, Book II (SGB II) is specified by the provisions of Section 3 of the Ordinance on the Calculation of Income and the Disregard of Income and Assets for Unemployment Benefit II/Social Assistance (Allg II-V).
According to this, for the use of a motor vehicle for gainful employment, only the following deductions are permitted in addition to the standard deduction for business expenses under Section 3 No. 3 lit. a) aa) of the German Social Code, Book II (SGB II): €0.06 for each kilometer of the shortest road route for travel to and from work. This regularly covers all costs associated with the regular use of a motor vehicle to obtain earned income (cf. Section 9 Paragraph 2 Sentence 1 of the German Income Tax Act (EStG) regarding the commuting allowance).
This also includes regularly occurring repair and vehicle inspection (TÜV) costs. Only those costs that are by their nature extraordinary and unforeseeable, that are based on "unavoidable events" for the employed person and therefore, by their nature, defy a lump-sum deduction, could be taken into account (cf. Federal Fiscal Court, judgment of July 14, 1978, VI R 158/76, BFHE 125, 553; Schleswig-Holstein Fiscal Court, judgment of September 30, 2009, 2 K 386/07, DStRE 2010, 147).
Such costs are not being claimed here.
3.2 – Bavarian State Social Court, decision of 06.02.2012, – L 7 AS 21/12 B ER –
A statement of legal remedies is incorrect if it contains errors that could prevent the proper filing of the given legal remedy – cohabiting partnership – home visit – balancing of interests
A notice of appeal rights is incorrect if it contains errors that could prevent the proper filing of the given appeal (Federal Social Court, decision of October 18, 2007, B 3 P 24/07 B, para. 6). A notice of appeal rights serves as a guide. It must contain the necessary information for the affected party's first steps, but it must not be overloaded with further information and, instead of providing clarity, must cause confusion due to its length and complexity (Federal Social Court, ibid., para. 7).
It is not relevant whether the specific person concerned can be prevented from using the correct legal remedy; rather, the abstract possibility of an error is sufficient (BSG, decision of 02.03.1995, 7 BAr 196/94, para. 8).
a) The instructions on legal remedies are incorrect because they state that the lawsuit "can also be filed by a member of the household receiving benefits, provided that authorization to do so exists." However, the legal presumption arising from the household receiving benefits under Section 38 of the German Social Code, Book II (SGB II), does not grant authorization to file a lawsuit (Federal Social Court judgment of July 2, 2009, B 14 AS 54/08 R). Therefore, linking the household receiving benefits with authorization to file a lawsuit is at least misleading.
b) Secondly, the instructions on legal remedies are incorrect because they cite the provisions of Section 92 Paragraph 1 of the Social Court Act (SGG) regarding the content of the complaint and Section 93 of the Social Court Act (SGG) regarding further copies of the written submissions (as expressly stated for Section 92 of the Social Court Act (SGG) by Wolff-Dellen in Breitkreuz / Fichte, SGG, 1st edition 2008, Section 66, marginal note 22).
Applying the aforementioned standards, it must first be noted that the reference to the minimum content of the complaint pursuant to Section 92 Paragraph 1 of the Social Court Act (SGG) and the requirement for multiple copies of the pleadings pursuant to Section 93 of the SGG was not necessary to fulfill its "guiding function." Furthermore, these references were likely to deter the filing of an appeal because they created the impression that they were admissibility requirements and thus obstacles to be overcome before filing a complaint.
However, for a timely and formally valid action, it is not necessary to guarantee the content of the action in accordance with Section 92 Paragraph 1 of the Social Court Act (SGG) and to transmit the additional copies.
Section 92 paragraph 2 sentence 2 of the Social Court Act (SGG) stipulates that even if the indispensable components of the claim pursuant to Section 92 paragraph 1 sentence 1 of the Social Court Act (SGG) (designation of plaintiff, defendant and subject matter of the claim) are missing, the claim is not inadmissible, but the court can only set a deadline for supplementing the claim with preclusive effect.
Therefore, the instructions on legal remedies cannot simply state – as was done – that the complaint must identify the plaintiff, the defendant, and the subject matter of the claim in accordance with Section 92 of the Social Court Act. Failure to comply with the "must-have" requirements specified in Section 92 Paragraph 1 Sentences 3 and 4 of the Social Court Act (specific application, signature with place and date, statement of facts and evidence, transmission of the decision and the decision on the objection) is – subject to preclusion under Section 106a of the Social Court Act – largely without consequence.
On the other hand, the entire regulation of § 92 SGG can hardly be included in a legal remedy notice without causing confusion due to the resulting scope and complexity.
According to the jurisprudence of the Federal Constitutional Court (in particular the decision of the Federal Constitutional Court of 12 May 2005, 1 BvR 569/05), a final (not merely summary) examination of the prospects of success in the main proceedings must be carried out, or, if this is not possible, a balancing of interests and consequences must be undertaken if a serious violation of the rights of the affected parties is even possible without the granting of preliminary legal protection.
This follows from the mandate to protect human dignity (Article 1, Paragraph 1 of the Basic Law – GG) and the necessity of effective legal protection (Article 19, Paragraph 4 GG). Criteria for balancing interests include, in particular, the threatened violation of (fundamental) rights, exceptionally compelling reasons that override the interests of the applicant, and the hypothetical consequences of denying or granting preliminary legal protection.
Comment by Willi, 2nd Bavarian State Social Court, decision of 06.02.2012, - L 7 AS 21/12 B ER –
The Bavarian State Social Court (LSG) has recently confirmed that those receiving benefits under the German Social Code, Book II (SGB II), are not required to tolerate home visits from job center employees.
(sozialrechtsexperte.blogspot.com
3.3 – Hessian State Social Court, decision of 24 January 2012, – L 9 AS 698/11 B ER –
1. A legal dispute concerning the assurance of moving costs is not yet settled or the need for legal protection has not yet ceased (see BSG, judgment of April 6, 2011 – B 4 AS 5/10 R –) if the person in need of assistance has already spent the night in the new apartment, but no furniture is located there and therefore the move has not yet been completed.
2. In the event of a move not initiated by the agency or necessary for other reasons, the catch-all provision of Section 22 Paragraph 6 Sentence 1 of the German Social Code, Book II (SGB II) applies, which grants the agency discretion in covering moving costs, encompassing both whether to cover them and the amount of those costs. Furthermore, these costs must be reasonable.
3. In principle, reasonable moving expenses can only relate to personal belongings that the applicant needs within the framework of the socio-cultural subsistence minimum. This includes necessary furniture and a reasonable amount of personal literature, but not if this amounts to 978 boxes of specialist literature for a profession the person in need of assistance is pursuing.
4. The job center of the new place of residence is responsible for any potential claim under Sections 16 et seq. of the German Social Code, Book II (SGB II) with regard to integration benefits.
Note by Willi 2: BSG, Judgment of 06.10.2011, – B 14 AS 152/10 R –
Moving expenses according to § 22 para. 3 SGB II (old version) do not include the deductible of the comprehensive insurance of a rented moving vehicle, because the damage occurred while participating in general road traffic.
sozialrechtsexperte.blogspot.com
4. Decisions of the social courts on basic income support for job seekers (SGB II)
4.1 – Social Court Landshut, Judgment of 07.02.2012, – S 10 AS 294/11 –
Residents of the Landshut district receiving benefits under the German Social Code, Book II (SGB II), are entitled to higher reimbursement for housing and heating costs!
A constitutionally compliant interpretation based on Article 11 of the Basic Law shows that a move to enable better medical treatment or access to specialists can indeed justify the necessary necessity.
Because the concept for determining accommodation costs in the district of Landshut, which was newly created with effect from mid-2009 and updated every six months, ultimately does not meet the high requirements of the Federal Social Court (BSG), despite correct approaches.
The term "appropriate" is an indeterminate legal term which, according to the established case law of all senates of the Federal Social Court (BSG) responsible for basic income support, is subject to full judicial review and must be specified in several steps based on the so-called product theory (see, e.g., judgment of February 19, 2009 – B 4 AS 30/08 R, BSGE 102, 263-274 = SozR 4-4200 § 22 No. 19; judgment of August 20, 2009, B 14 AS 41/08 R, each with further references).
To specify the limits of what is reasonable, according to established case law, which this court follows, the first step is to determine the abstractly reasonable size and standard of the apartment (see, e.g., Federal Social Court [BSG] judgment of October 19, 2010 – B 14 AS 15/09 R [juris]). Expenditures for an apartment are considered reasonable only if, in terms of its furnishings, location, and building structure, it meets simple and basic needs and does not represent a high standard of living, and if it is a "modestly sized apartment" (see, e.g., Federal Social Court [BSG] judgment of November 7, 2006 – B 7b AS 10/06 R, BSGE 97, 231-242 = SozR 4-4200 § 22 No. 2).
According to the Federal Social Court (BSG) (e.g., judgment of October 19, 2010, loc. cit.), the appropriateness of apartment size is determined by referring to the values established by the federal states pursuant to Section 10 of the Law on Social Housing Promotion. In Bavaria, the administrative regulations for the implementation of the housing allocation law (VVWoBindR) were issued by the Bavarian State Ministry of the Interior on December 10, 2004, No. IIC4-4702-003/04. Section 6.7.1 of these regulations specifies the following apartment sizes as appropriate:
– up to 50 sqm of living space for a single person
– up to 65 sqm of living space for two household members
– up to 75 sqm of living space for three household members
– up to 90 sqm of living space for four household members
and an additional 15 sqm of living space for each additional household member.
According to this, up to 50 square meters are considered appropriate for a single-person household in the Free State of Bavaria.
A concept is a planned approach by the basic income support provider in the sense of systematically determining and evaluating general, albeit location- and time-dependent, facts for all applications in the relevant comparison area and not just a case-by-case approach.
The concept is sound if it meets at least the following requirements:
– Data collection must take place exclusively within the precisely defined area and must
cover the entire comparison area (no ghettoization);
– a comprehensible definition of the subject of observation is required, e.g.,
what type of apartments – differentiation by apartment standard, gross
and net rent, differentiation by apartment size;
– details of the observation period;
– specification of the method of data collection (sources of information, e.g., rent index)
; – representativeness of the scope of the collected data;
– validity of the data collection;
– adherence to recognized mathematical and statistical principles of data analysis
; and
– details of the conclusions drawn (e.g., upper limit of the range or cap).
In legal proceedings, the basic income support provider must submit its coherent concept upon request by the court (Federal Social Court, Judgment of December 17, 2009, B 4 AS 50/09 R, loc. cit. [para. 25]).
In its decision of September 22, 2009 (loc. cit.), the Federal Social Court (BSG) stated that, in principle, all living space actually rented for this purpose must be taken into account when calculating housing costs (para. 22). This includes not only apartments actually offered on the market, but also those that are rented (judgment of February 19, 2009, loc. cit.). In a judgment of June 18, 2009 (B 14/7b AS 44/06 R), the court stated that the concept chosen by the basic income support provider must provide sufficient assurance of reflecting the current conditions of the local rental housing market. This could be the case, among other things, if the data basis is based on at least 10% of the rental housing stock relevant to the region. The concept applied by the defendant does not meet this standard; at least, this is not verifiable for the court – as required by the BSG. Although the preface of the concept states verbatim (see only “Determination of accommodation costs as of 30.06.2010”):
"In order to obtain a comprehensive overview of the conditions of the local rental housing market relevant to basic income support, data from 12% - 13% of currently concluded rental agreements from the area of basic income support for job seekers in the district of Landshut (SGB II) and from the area of assistance for subsistence and basic income support for the elderly and those with reduced earning capacity (Chapter 3 and 4 of SGB XII), housing allowance limits from § 11 WoGG, rental offers subsidized through social housing construction, and housing offers published in the regional press (Landshuter Zeitung, Landshuter aktuell, Wochenblatt) were used."
The court finds it unclear from the concept that the apartments on which it is based constitute 10% of the regionally relevant rental housing stock. The concept contains no calculation to support this claim. Likewise, the necessary parameters for comparison are lacking. Regarding the 12%–13% mentioned in the concept, it is unclear whether this refers to the entire rental housing stock under consideration or exclusively to apartments in the lower price segment. In any case, the court cannot understand how the 12%–13% figure was calculated.
The Federal Social Court (BSG) further assumes that, with a coherent concept, benefit providers can consider both apartments from the overall housing stock (basic, average, and high-end standards) and apartments of only basic standards. If the concept primarily considers apartments of the basic segment, it is essential to first define this basic segment abstractly in order to allow for the verification of the benefit provider's assumptions.
In assessing the "concept," it is striking that it contains virtually no explanation of the concept of a specific housing market segment. The defendant should have defined this term and explained which criteria, in its view, must be met to constitute a reasonable housing standard in the sense of the lower price segment. If the housing lists predominantly include apartments belonging to recipients of benefits under SGB II and SGB XII (social assistance), it must be assumed that they should not include apartments that unduly inflate the reasonable housing costs because these apartments no longer meet basic and therefore reasonable housing standards.
In these cases, however, the court cannot assess whether the lists might contain apartments that fall below the appropriate housing standards for the lower end of the housing market. It is not apparent from the submitted "concept" that the defendant has examined the housing standards of the specific apartments it has included. On the contrary, the preface to the "concept" states that information regarding the construction type, thermal insulation value, and room furnishings of the apartments could not be obtained. The defendant appears to have simply concluded, based on the fact that the apartments are predominantly owned by benefit recipients, that they meet the standards relevant under the German Social Code, Book II (SGB II).
However, this does not comply with the requirements of case law, which stipulates that the housing standard of the basic housing segment must also be ensured. The specific circumstances under which a housing standard falls below the appropriate level for the lower housing segment need not be addressed here. The defendant failed to consider these aspects, even though the Federal Social Court (BSG) has consistently emphasized the necessity of including the factors determining the product, "rent," in the evaluation (see Knickrehm in Spellbrink (ed.), Das SGB II in der Praxis der Sozialgerichte [The German Social Code, Book II, in the Practice of the Social Courts], 2010, p. 88).
This approach also does not comply with the jurisprudence of the Federal Social Court (BSG). According to some legal scholars, determining the relevant housing market segment requires establishing the housing standard, the year of first occupancy or last renovation, the size of the apartment, and its furnishings (see also Butzer/Keller, NZS 2009, 65, 70).
In the present case, there is also no specific, case-specific "capped" limit of appropriateness pursuant to Section 22 Paragraph 1 Sentence 2 of the German Social Code, Book II (SGB II), to the detriment of the plaintiff.
Section 22, paragraph 1, sentence 2 of the German Social Code, Book II (SGB II) governs cases in which actual accommodation costs increase due to an unnecessary move; in such cases, benefits are only to be provided up to the amount of the (reasonable) expenses that would have been incurred up to the move. It is intended to counteract cost increases by fully utilizing the respective local limits of reasonableness (Bundestag printed matter 16/1410, p. 23).
However, the cap only applies to moves from an apartment for which a rent within the range of what is considered reasonable under basic income support law had to be paid, to a more expensive but also reasonable apartment according to this standard; a limitation to the previous accommodation costs is only considered if the accommodation was actually occupied under social and market-typical conditions before the move.
If the person in need of assistance – like the plaintiff – lives free of charge with his parents before moving, the scope of application of Section 22 Paragraph 1 Sentence 2 SGB II is not opened (see also LSG BE-BB 07.08.2008 – L 5 B 940/08 AS ER).
Furthermore, the cap only covers cases of a (objectively) unnecessary move; the necessity of the move is given if there is a plausible, comprehensible and understandable reason that would also guide a non-benefit recipient (LSG SN 4.3.2011 – L 7 AS 753/10 B ER; LSG BE-BB 10.11.2009 – L 29 AS 1196/09 B ER).
In this context, particular attention must be paid to Article 11 of the Basic Law. A constitutionally compliant interpretation based on Article 11 of the Basic Law shows that a move to facilitate better medical treatment or access to specialists can indeed constitute the necessary necessity (see also Social Court Schwerin, decision of May 1, 2005 – S 10 ER 29/05 AS).
Note by Willi 2: BSG, Judgment of 13.04.2011, – B 14 AS 32/09 R –
Hartz IV – The age of the benefit recipient and their long tenure are – even in combination – not reasons that would preclude a move.
sozialrechtsexperte.blogspot.com
5. The general public-law claim for reimbursement
A treatise by Judit Neumann, Kassel; the author is a judge at the Social Court of Halle and currently a research assistant at the Federal Social Court
Current Social Law, Journal for Social Counseling, – Nomos – Issue 1 2012
www.socialrecht-aktuell.nomos.de (pdf)
Author of the legal case ticker: Willi 2 from Tacheles
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
