1. Decision of the Federal Social Court of 22 November 2011 on basic income support for job seekers (SGB II)
1.1 – BSG, Judgment of 22.11.2011, – B 4 AS 204/10 R –
Student exchange to the USA is a class trip eligible for reimbursement under the German Social Code, Book II (SGB II)
A recipient of benefits under the German Social Code, Book II (SGB II), is entitled to reimbursement from the Jobcenter of the costs incurred for a multi-day class trip in the form of participation in the student exchange with the high school in Pinetop-Lakeside (Arizona) in the amount of 1300 euros.
Contrary to the opinion of the Higher Social Court, this student exchange constitutes a multi-day class trip within the meaning of Section 23 Paragraph 3 Sentence 1 Number 3 of the German Social Code, Book II (SGB II). This follows from the state school regulations of Baden-Württemberg, which were intended to implement the federal framework regulation of Section 23 Paragraph 3 Sentence 1 Number 3 of the SGB II.
The federal regulation in Section 23 Paragraph 3 Sentence 1 No. 3 of the German Social Code, Book II (SGB II) provides the abstract framework for when benefits are to be provided for a multi-day class trip.
However, it follows from the wording of the standard, the explanatory memorandum to the law, its systematic position within the SGB II, as well as the meaning and purpose of the regulation, that the federal legal framework must be supplemented by the state legal provisions.
The connection between the terms "multi-day class trip" and "school regulations" stipulates, on the one hand, that federal law only provides benefits for expenses incurred by a school event involving more than one student, with at least one overnight stay, and a "trip," meaning an event taking place outside of school. On the other hand, the wording in relation to the "school legal framework" implies that the regulations of the respective federal state determine whether the specific event is regionally "customary" within the framework of Section 23 Paragraph 3 Sentence 1 Number 3 of the German Social Code, Book II (SGB II).
Only by using school regulations as the basis for legitimizing the need for a multi-day class trip can the purpose of Section 23 Paragraph 3 Sentence 1 Number 3 of the German Social Code, Book II (SGB II), be fulfilled, namely to guarantee the participation of students in school events. Which school events must be guaranteed is determined by the respective state school law.
The reality of everyday school life, shaped by school law regulations, alone justifies the assumption of actual costs through state transfer payments, i.e., those that are "customary" according to the relevant regulations in the respective federal state.
The student exchange carried out here does not exceed the federal legal framework of Section 23 Paragraph 3 Sentence 1 No. 3 SGB II.
Likewise, according to the system of Baden-Württemberg's school law regulations on extracurricular activities, the associated school law competence allocations, and the explicitly formulated goal of the school law regulations, the event is equivalent to a multi-day class trip under the state school law provisions.
Since the LSG disregarded Baden-Württemberg state law, the Senate was not prevented from interpreting the state law regulations itself.
The plaintiff's claim under Section 23 Paragraph 3 Sentence 1 No. 3 of the German Social Code, Book II (SGB II) is not precluded simply because, after submitting his application, he obtained the necessary sum of money for participation in the student exchange himself with the help of former business associates of his father.
According to the findings of the LSG, the payments from the father's business associates were intended merely to substitute for the lack of support from the defendant, so that they cannot be held against the plaintiff on the grounds of an unlawful denial of benefits (cf. for social assistance BSG of 11.12.2007 – B 8/9b SO 12/06 R – SozR 4-3500 § 21 No. 1 para. 11; BVerwGE 90, 154).
Note from Willi 2: The social law expert predicted on November 16, 2011, that the plaintiff would prevail before the Federal Social Court (BSG).
sozialrechtsexperte.blogspot.com
2. Decisions of the Federal Social Court of 6 October 2011 on basic income support for job seekers (SGB II)
2.1 – BSG, Judgment of 06.10.2011, – B 14 AS 131/10 R –
When determining adequacy, the total number of apartments must be considered, not just those belonging to recipients of social assistance (SGB II) and housing allowance
The administrative practice of the job center, according to which residential or house ownership up to 120 square meters of living space is generally not to be treated as realizable assets when calculating benefits, is not irrelevant in the needs assessment.
For basic income support providers are also bound in this respect by the legal requirements arising from Section 12 of the German Social Code, Book II (SGB II) on the one hand and Section 22 of the German Social Code, Book II (SGB II) on the other (see Federal Social Court judgment of 19 October 2010 – B 14 AS 65/09 R -).
The assumption of reasonable housing costs is only considered if those affected are generally eligible for benefits. This, in turn, requires that the need cannot be met even by assets that must be taken into account.
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" fail to 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 –).
The defendant assumes an insufficient data basis or fails to draw 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 the German Social Code, Book II (SGB II) (78%).<SGB XII> (10%) and recipients of housing benefit (12%) together. Therefore, only apartments that are more expensive than a suitable apartment according to SGB II or SGB XII can be included in the category of housing benefit recipients.
However, if only these apartments belonging to benefit recipients are used as a data basis, and the average is calculated from the values obtained in this way, the resulting appropriate value is lower than the value that is accepted as appropriate 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, para. 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 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 from those already rented (Judgment of 19.2.2009 – 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).
Note by Willi 2: BSG, Judgment of 23.08.2011, – B 14 AS 91/10 R –
Federal Social Court criticizes calculation of reasonable housing costs for Hartz IV benefits – Housing costs for owner-occupied properties – Preferential treatment of owners compared to tenants
(sociallawexpert.blogspot.com)
2.2 – BSG, Judgment of 06.10.2011, – B 14 AS 66/11 R –
If the job center is consulted in good time before entering into corresponding obligations towards third parties regarding the requested assumption of the costs of the move-out renovation, it cannot subsequently invoke the invalidity of a clause due to renovations to be carried out – provided that the other conditions for the assumption of costs were met.
A person in need of assistance who is unable to carry out renovations upon moving out may be entitled to reimbursement of costs.
It is irrelevant that a third party has borne the costs in the meantime until the final clarification of the job center's obligation to provide benefits.
The job center's obligation to bear the costs also applies if, in the meantime, third parties have advanced the costs until the final clarification.
The legal basis for the assumption of renovation costs when moving out of a previously occupied apartment is Section 22 Paragraph 1 Sentence 1 SGB II.
Subsequently, benefits for accommodation and heating will be provided in the amount of the actual expenses, provided they are reasonable.
In principle, eligible costs also include contractually agreed renovation costs that are actually incurred upon moving out of the apartment. Such costs, like contractually agreed surcharges for cosmetic repairs during the tenancy (see Federal Social Court judgment of March 19, 2008 – B 11b AS 31/06 R – SozR 4-4200 § 22 No. 10) and renovation costs upon moving into an apartment (see Federal Social Court judgment of December 16, 2008 – B 4 AS 49/07 R – BSGE 102, 194 = SozR 4-4200 § 22 No. 16), are not covered by the standard benefit, but rather, according to the wording of Section 22 of the German Social Code, Book II (SGB II) and from a systematic perspective, fall under the costs of accommodation (cf. already Federal Administrative Court decision 90, 160).
It is irrelevant whether the plaintiff's mother or the plaintiff himself was a party to the tenancy agreement.
The eligible costs of accommodation for a person in need of assistance include both ongoing and one-off costs of accommodation, insofar as they actually arise from the use of the apartment by the person in need of assistance and must be borne by him, regardless of who is contractually obligated to the landlord (or a third party) (corresponding to costs when using a house property, Federal Social Court judgment of 24.2.2011 – B 14 AS 61/10 R – SozR 4-4200 § 22 No. 44, paragraph 18 at the end).
The decisive factor for the eligibility of the one-off renovation costs (as well as the ongoing costs) as costs of the plaintiff's accommodation is that, according to the findings of the LSG, he used the apartment alone, he was internally obligated to compensate his mother for the resulting costs, and the accommodation costs thus fell solely on him (see also BSG judgment of 20.8.2009 – B 14 AS 34/08 R – para. 16).
The question of whether the plaintiff or his mother was legally obligated to bear the renovation costs (regarding the validity of so-called return clauses, see Blank in Blank/Börstinghaus, Miete, 3rd edition 2008, § 535 BGB, marginal note 396 et seq.) is irrelevant in the present case.
The disputed costs are therefore among the eligible accommodation costs because the plaintiff raised his request with the defendant well in advance of entering into any obligations with the company carrying out the work, and the defendant did not point out the potential invalidity of the clause in the lease agreement at that time. Instead, the defendant assumed that the clause in the lease agreement created a corresponding obligation to renovate and, in his initial decision to reject the claim, merely addressed the unreasonableness of the claimed costs in terms of amount and the possibility of covering the costs elsewhere (through the returned security deposit).
However, if the provider of basic income support is notified of the requested assumption of costs in a timely manner before the applicant enters into corresponding obligations to third parties, it cannot subsequently invoke the invalidity of a clause regarding necessary renovations, provided that the other prerequisites for cost assumption were met. This corresponds to the legal principle of Section 22 Paragraph 1 Sentence 2 (now Sentence 3) of the German Social Code, Book II (SGB II), according to which a limitation of incurred costs is generally only possible after prior notification of their unreasonableness (cf. regarding notification obligations in the case of a graduated rent agreement, BSGE 104, 179 = SozR 4-4200 § 22 No. 24, marginal note 23).
The appropriateness of renovation costs at the end of the tenancy must be determined independently of the appropriateness of the ongoing costs of accommodation (cf. for renovation costs upon moving in BSG judgment of 16.12.2008 – B 4 AS 49/07 R – BSGE 102, 194 = SozR 4-4200 § 22 No. 16).
If these costs are among those that are usually incurred, there is a right to have them reimbursed within reasonable limits, especially if they are incurred to reduce costs when moving out of an otherwise unreasonably expensive apartment.
The interim payment by the plaintiff's stepfather in consideration of the obligations undertaken towards "M" eV is not to be considered as income of the plaintiff that eliminates the need.
While the wording of Section 11 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II) does not provide a definition of what constitutes income, it merely excludes the benefits mentioned in the second part of the sentence from consideration. However, in accordance with the established case law of the Federal Social Court (BSG) on unemployment assistance (BSGE 58, 160 = SozR 4100 § 138 No. 11; SozR 4100 § 138 No. 25) and the Federal Administrative Court (BVerwG) on the concept of income in housing benefit law (established case law since BVerwGE 54, 358; BVerwGE 69, 247), a benefit provided only temporarily by a third party cannot be classified as income within the scope of application of Section 11 Paragraph 1 SGB II, according to the purpose and intent of the provision.
Only the "increase in value" constitutes income within the meaning of Section 11 Paragraph 1 of the German Social Code, Book II (SGB II); only those receipts in cash or in kind that result in a change in the financial position of the person receiving such income are considered income. This increase must remain with the benefit recipient for their final use, because only then will their need for assistance be permanently eliminated to the extent of the payments. In this respect, according to the previous case law of the Federal Social Court (BSG), a distinction must be made between monetary payments or benefits in kind that are given to a person entitled to benefits under Book II of the German Social Code (SGB II) for their permanent residence (see, for example, BSG judgment of 18 February 2010 – B 14 AS 32/08 R – SozR 4-4200 § 9 No. 9 para. 17), and a loan that is subject to a repayment obligation within the meaning of the German Civil Code (BGB) towards the lender (BSG judgment of 17 June 2010 – B 14 AS 46/09 R – BSGE 106, 185 = SozR 4-4200 § 11 No. 30).
In accordance with this system, payments from third parties that substitute for benefits unlawfully denied by the basic income support provider until the lawful situation is restored, and which are only to be repaid in the event of success, do not constitute income within the meaning of Section 11 Paragraph 1 of the German Social Code, Book II (SGB II). They do not release the basic income support provider from its obligation to provide benefits.
As in the application area of the Social Code Book XII and the Federal Social Assistance Act, the applicant for assistance cannot be opposed to the fact that he has temporarily procured the desired benefit himself on the grounds of a “failure to serve the purpose” of the originally requested benefit (cf. BSG SozR 4-3500 § 21 No. 1 RdNr 11 and BVerwGE 96, 152, 157).
Precisely because the need is urgent, the person in need must find a temporary solution until the basic income support provider's obligation to provide benefits is definitively clarified. If it is not possible to defer payments on existing debts, the person in need is free to take out an interest-bearing loan at market rates. If this inevitably results in additional costs, these must also be reimbursed by the basic income support provider (see Federal Social Court judgment of June 17, 2010 – B 14 AS 58/09 R – BSGE 106, 190 = SozR 4-4200 § 22 No. 41, para. 35).
Against this background, it is not objectionable if those in need of help primarily make use of voluntary and more cost-effective offers from third parties based on friendly or familial ties.
Whether and in which cases a security deposit to be repaid by the landlord, which the defendant referred to in his rejection decision as a possibility of covering needs, is to be considered as income within the meaning of Section 11 Paragraph 1 SGB II (and not as assets), can remain open in the present case.
Prior to the introduction of Section 22 Paragraph 1 Sentence 4 of the German Social Code, Book II (SGB II) on August 1, 2006, there was no provision stipulating that a repayment related to a tenancy agreement directly reduces the need for accommodation (Federal Social Court judgment of April 15, 2008 – B 14/7b AS 58/06 R – SozR 4-4200 § 9 No. 5, paragraph 37).
Furthermore, the repayment of a security deposit, insofar as it constitutes income, reduces the current need at the time of receipt (or in the following month: cf. Section 22 Paragraph 1 Sentence 4 SGB II in the version applicable from 1.8.2006), but not a renovation need that already existed before receipt.
Note by Willi 2: BSG, Judgment of 24.11.2011, – B 14 AS 15/11 R –
The costs of a move-out renovation may be covered as housing costs.
However, the prerequisite for this is not the social effectiveness of the landlord's demand, but rather the reasonableness of the actual expenses.
sozialrechtsexperte.blogspot.com
3. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
3.1 – Bavarian State Social Court, decision of 14 February 2012, – L 11 AS 142/10 –
In principle, the only permissible type of action against a refusal notice pursuant to Section 66 of the German Social Code, Book I (SGB I), is a pure action for annulment.
In principle, the permissible type of action against a refusal notice pursuant to Section 66 of the German Social Code, Book I (SGB I), is a pure action for annulment (see decisions of the Senate of 13 February 2007 – L 11 B 51/07 AS ER – and of 8 May 2008 – L 11 AS 386/07; see also Federal Social Court (BSG), judgment of 1 July 2009 – B 4 AS 78/08 R).
Such a decision does not establish the burden of proof in the matter itself, but merely sanctions misconduct by a benefit recipient. If the benefit provider's assessment of the misconduct proves to be incorrect in court proceedings, this does not yet constitute a ruling on the benefit entitlement. The benefit provider must, in principle, reconsider the existence of a benefit entitlement after the denial decision has been overturned. The defendant also assured the court of this during the oral hearing.
The plaintiffs' claim for performance is therefore inadmissible.
3.2 – Hessian State Social Court, decision of 26 January 2012, – L 6 AS 676/11 B ER –
1. If the beneficiary seeks an injunction against offsetting pursuant to Section 42a of the German Social Code, Book II (SGB II) in preliminary legal protection proceedings (here: preliminary injunction within the framework of proceedings pursuant to Section 44 of the German Social Code, Book X (SGB X)), the value of the subject matter of the appeal is determined solely by the total amount of the offsetting in the relevant benefit period and not by the amount of the loan, if only the benefit notice, in which the monthly offsetting is regulated, is subject to review on the merits.
2. On the distinction between the right to set-off and the declaration of set-off.
3.3 – Hessian State Social Court, decision of 16 January 2012, – L 6 AS 570/11 B ER –
Objections and legal actions against a revocation order have suspensive effect.
The enforceability is not waived pursuant to Section 39 No. 1 of the German Social Code, Book II (SGB II). According to Section 39 No. 1 SGB II in the version applicable since April 1, 2011, “objections and appeals against an administrative act that 1. revokes, withdraws, or rescinds benefits for jobseekers, establishes a breach of duty and a reduction of the payment entitlement, or regulates benefits for integration into work or the obligations of employable benefit recipients in the context of integration into work,” do not have suspensive effect.
Even under the predecessor regulation in force since 2009, the view had largely prevailed that objection and appeal against a refusal pursuant to Section 66 Paragraph 1 Sentence 1 Alternative 1. The German Social Code, Book I (SGB I) has suspensive effect (see Hessian State Social Court, decision of December 27, 2010 – L 9 AS 612/10 B ER – juris; decision of June 22, 2011 – L 7 AS 700/10 B ER – juris; Baden-Württemberg State Social Court, decision of April 8, 2010, L 7 AS 304/10 ER-B – juris – with further references; Saarland State Social Court, decision of May 2, 2011, L 9 AS 9/11 B ER; Groth in: GK-SGB II, § 39 para. 25; Hengelhaupt in: Hauck/Noftz, SGB II, K § 39 para. 75; contra: Lower Saxony-Bremen State Social Court, decision of March 8, 2010, L 13 AS 34/10 B ER – juris).
The denial of benefits pursuant to Section 66 of the German Social Code, Book I (SGB I), as a consequence of a lack of cooperation is not covered by the wording of the provision; the case variants provided for the legal consequence of excluding the suspensive effect are enumerated and exhaustive – not merely exemplary (see also the following: Hessian State Social Court, decision of December 27, 2010, loc. cit.). Applying the provision accordingly, and thus extending its scope, to the grounds of objection and legal action against the complete denial of benefits due to a breach of cooperation obligations raises serious concerns, given the exceptional nature of the provision and the simultaneous curtailment of the rights of the initially (at least formally) entitled benefit recipients caused by its content.
Furthermore, the refusal under Section 66 of the German Social Code, Book I (SGB I) is not aimed at eliminating the entitlement in principle by deciding on the underlying eligibility requirements. The entitlement to benefits remains unaffected in its substantive elements – unlike in cases of cancellation, withdrawal, or revocation – which is evident from the fact that the refusal – as well as the withdrawal – of a benefit is not an option if its prerequisites have been proven despite a lack of cooperation or even intentional obstruction of the investigation (cf. Seewald in: Kasseler Kommentar, Section 66 SGB I, para. 23) and the refused or withdrawn benefits can be provided retroactively, in whole or in part, pursuant to Section 67 SGB I, if the cooperation is subsequently provided.
In particular, due to the aforementioned legal dogmatic considerations regarding the nature of refusal and withdrawal, the same applies to the suspensive effect of an objection and an action against a withdrawal pursuant to Section 66 Paragraph 1 Sentence 1 Alternative 2 of the German Social Code, Book I (SGB I), as a result of the new regulation of Section 39 SGB I on April 1, 2011 (as already stated here regarding the old legal situation: Saxon State Social Court, decision of January 20, 2011 – L 7 AS 804/10 B ER – juris with further references; contra regarding the new legal situation: Aubel in: jurisPK-SGB II, Section 39 marginal note 13).
The withdrawal of benefits, like the denial of benefits, does not affect the individual, concrete determination of the substantive legal situation regarding the entitlement to benefits under Book II of the German Social Code (SGB II) and is therefore not comparable to rescission, withdrawal, or revocation. The now-regulated determination of a "reduction in the payment entitlement" also does not encompass withdrawal of benefits. With the "Act on the Determination of Standard Needs and the Amendment of Books Two and Twelve of the German Social Code" of March 24, 2011, Section 39 of Book II of the German Social Code was clarified for the second time, and its wording was more closely aligned with the technical terms of general administrative law and the specific institutions of social law. The new regulation was intended to clarify that "objections and legal actions against an administrative act establishing a breach of duty and a reduction in the payment entitlement pursuant to Sections 31b Paragraph 1 and 31c do not have suspensive effect" (Bundestag Printed Matter 17/3404, p. 114).
Due to the explicit reference to Sections 31b Paragraph 1 and 31c of the German Social Code, Book II (SGB II), and the increasingly precise adherence to legal terminology in the amendment, it can be ruled out that the term "reduction" should also encompass the variant of Section 66 Paragraph 1 Sentence 1, Second Alternative, of the German Social Code, Book I (SGB I). From a systematic perspective, the fact that explicit regulations concerning the immediate enforceability of withdrawal orders in Section 336a Sentence 2 of the German Social Code, Book III (SGB III) and Section 86a Paragraph 2 Number 2 of the German Social Courts Act (SGG) were deemed necessary argues against an expansive interpretation or analogous application of this variant.
The repeated amendment of Section 39 of the German Social Code, Book II (SGB II), is, according to its legislative history and systematic structure, a “eloquent silence” on the part of the legislator, which may not be ignored for reasons of administrative expediency that are understandable in view of the legal situation in social security law.
Note by Willi 2: A different opinion is held by the State Social Court of Saxony-Anhalt, decision of December 21, 2011, – L 5 AS 182/11 B ER –.
sozialrechtsexperte.blogspot.com
4. Decisions of the social courts on social assistance (SGB XII)
4.1 – Social Court Aachen, Judgment of 20 January 2012, – S 19 SO 109/11 –
According to established case law of the highest courts, the provision of Section 44 Paragraph 1 Sentence 1 of the German Social Code, Book X (SGB X) also applies to basic income support benefits for the elderly and those with reduced earning capacity (see, for example, Federal Social Court (BSG), judgment of October 16, 2007 – B 8/9b SO 8/06 R = BSGE 99, 137 ff.).
The plaintiff, who lives in her parents' house, does not form a household with her parents within the meaning of Section 7 Paragraph 3 of the German Social Code, Book II (SGB II), nor a community of need within the meaning of Section 19 of the German Social Code, Book XII (SGB XII), so that she is entitled to standard benefits amounting to 100% of the (old) standard rate (cf. generally Federal Social Court (BSG), judgments of May 19, 2009 – B 8 SO 8/08 R- and of March 23, 2010 – B 8 SO 17/09 R-).
Retroactive provision of benefits is not excluded simply because the benefits in question are under the German Social Code, Book XII (SGB XII).
Although, in the highest court's jurisprudence, due to the present-day relevance of benefits under the German Social Code, Book XII (SGB XII), a retroactive claim for benefits is only affirmed if the need continues uninterrupted (e.g., Federal Social Court, judgment of 29.09.2009 – B 8 SO 16/08 R = BSGE 104, 213 ff.).
Therefore, for social assistance benefits, an unwritten criterion of continuing need must be read into Section 44 Paragraph 4 of the German Social Code, Book X (see Merten, in: Hauck/Noftz, SGB X, as of 2011, Section 44, marginal note 116 et seq.).
However, the present-day principle is less pronounced in the law on basic income support for the elderly and those with reduced earning capacity, because these benefits are only provided upon application and also for a period of twelve months (§ 44 para. 1 sentence 1 SGB XII).
In contrast to social assistance, the main reason for limiting retroactive benefit payments thus ceases to exist (Merten, loc. cit., § 44 para. 119). Therefore, such benefits must be provided retroactively pursuant to § 44 para. 4 SGB X, regardless of whether a continuing need exists.
Note by Willi 2: Berlin-Brandenburg State Social Court, decision of 22.12.2011, – L 34 AS 2050/11 B PKH –
The granting of legal aid is not without controversy, as the question of whether an authority, when deciding on a review application, may invoke the binding effect of the decision under review and refuse to examine the legality of the decision when the applicant – as in this case – has not even begun to explain in the administrative or appeal proceedings why the decision under review is allegedly unlawful, and has neither presented new facts or findings nor identified new evidence, is not uncontroversial.
sozialrechtsexperte.blogspot.com
4.2 – Social Court Kiel, decision of 23.02.2012, – S 24 SO 4/12 ER –
Recipients of basic income support benefits under the German Social Code Book XII (SGB XII) are entitled to have their accommodation costs covered up to the respective rent ceiling, even if they have moved without the consent of the benefit provider.
Recipients of basic income support under the German Social Code, Book XII (SGB XII), are entitled to have their accommodation costs covered up to the applicable rent ceiling, even if they have moved without the approval of the benefits provider. This entitlement is based on Section 35 of the SGB XII. Even in the case of an unnecessary move, accommodation costs must be recognized to a reasonable extent – i.e., in Kiel, up to the rent ceilings established by the courts. This is a significant difference from the regulations in the German Social Code, Book II (SGB II) (unemployment benefit II). According to Section 22, Paragraph 1, Sentence 2 of the SGB II: “If the reasonable expenses for accommodation and heating increase after an unnecessary move, only the previous amount will be recognized.”
The social welfare agency cannot refuse to cover necessary moving expenses on the grounds that it has refused to approve the move itself. This is because the approval requirement in Section 35 Paragraph 2 Sentence 5 of the German Social Code, Book XII (SGB XII) refers to the moving expenses, not the move itself. Approval for the moving expenses can still be granted until the expenses are incurred (i.e., until the claim becomes due). Approval must be granted (discretion reduced to zero) if the move is necessary, meaning if there is a plausible and comprehensible reason for the move that would also motivate someone not receiving social assistance. This is particularly likely to be the case with extensive mold infestation.
An article by attorney Helge Hildebrandt
5. Activity Report of the Federal Social Court 2011, listing many judgments on the German Social Code, Book II (SGB II)
Author of the legal case ticker: Willi 2 from Tacheles
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
