1. Decision of the Federal Social Court of 20 December 2011 on basic income support for job seekers (SGB II)
Federal Social Court (BSG), Judgment of 20 December 2011, – B 4 AS 9/11 R –
A claim for additional heating and operating costs for an apartment no longer occupied by the job seeker at the time the claim is due must be covered by the job center as accommodation costs in the month in which the claim is due, in accordance with Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II).
Contrary to the defendant's opinion, the additional operating costs claim in this case, even for the apartment no longer occupied at the time of the due date, constitutes a one-time need for accommodation and heating within the meaning of Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II).
The demand for additional operating costs constitutes a significant change in circumstances within the meaning of Section 48 of the German Social Code, Book X (SGB X).
A significant change in circumstances cannot be denied simply because the costs for the apartment might have been unreasonable.
The operating costs claimed here were incurred during a period in which the plaintiff was still within the "grace period" set by the district under Section 22 Paragraph 1 Sentence 3 of the German Social Code, Book II (SGB II a.F.) for implementing cost-cutting measures.
During this period, any potentially unreasonable costs were still to be borne by the county.
Likewise, the fact that the need arising from the additional operating costs cannot be materially attributed to the time of their due date does not preclude the assumption of a significant change in circumstances.
The legal situation is indeed assessed according to the actual and legal circumstances of the period in which the claim in question arose.
However, if the claim is only asserted later and there is a right to reimbursement of the expenses at the time they were incurred, the need must be covered at the time the claim becomes due. This is the case here.
The additional operating costs claim represents a need for accommodation and heating that has not yet been covered by the basic income support provider – despite the receipt of benefits during the period in which the claim actually arose.
The plaintiff continued to receive benefits without interruption until the due date of the additional claim. At least in a case like the present one, where the benefit recipient no longer occupies the apartment for which the additional operating costs are being claimed because she has vacated the apartment in fulfillment of an obligation imposed upon her to reduce costs, the benefit provider is obligated to provide benefits for the additional claim even for the currently unoccupied apartment.
The need does not change solely through a change of residence from one for debt repayment according to § 22 para. 1 sentence 1 SGB II.
The landlord's assertion of the claim for additional operating costs constitutes a legally significant change in the factual circumstances. Section 22 Paragraph 1 of the German Social Code, Book II (SGB II) covers not only ongoing but also one-off costs for accommodation and heating (Federal Social Court [BSG] decision of May 16, 2007 – B 7b AS 40/06 R – SozR 4-4200 § 22 No. 4, marginal note 9; BSG judgment of September 19, 2008 – B 14 AS 54/07 R – marginal note 19, FEVS 60, 490, 494; BSG judgment of December 16, 2008 – B 4 AS 49/07 R – BSGE 102, 194 ff = SozR 4-4200 § 22 No. 16, marginal note 26; BSG judgment of March 22, 2010 – B 4 AS 62/09 R – SozR 4-4200 § 22 No. 38, marginal note). 13) If a subsequent claim becomes due in a single lump sum, it must be considered as an actual, current need at the time it becomes due, and not spread over longer periods (Federal Social Court judgment of April 15, 2008 – B 14/7b AS 58/07 R – SozR 4-4200 § 9 No. 5 para. 36). Subsequent payments therefore belong to the current need in the month they are due (see, for example, Federal Social Court judgment of March 22, 2010 – B 4 AS 62/09 R – SozR 4-4200 § 22 No. 38 para. 13).
The fact that the need arising from the operating cost arrears demand of September 10, 2007, cannot be materially attributed to that month or to the month in which it became due on December 31, 2007, does not preclude the assumption of a substantial change. As the Senate has already ruled, the legal situation is instead determined by the factual and legal circumstances of the period to which the claim in question, based on its actual origin, can be attributed (see Federal Social Court judgment of April 6, 2011 – B 4 AS 12/10 R – scheduled for publication). This interpretation is particularly supported by the protective purpose inherent in Section 22 of the German Social Code, Book II (SGB II). Cost-cutting measures can only be implemented at the time the costs are incurred. Therefore, the claim is assessed, both in principle and in amount, exclusively according to the circumstances of 2006.
If the benefit recipient has vacated the apartment for which the additional operating costs are being claimed due to a cost reduction request from the benefit provider pursuant to Section 22 Paragraph 1 Sentence 3 of the German Social Code, Book II (SGB II), then by changing residence they have merely complied with a legally imposed obligation. However, as long as the housing benefits were to be provided in the actual amount until the cost reduction request was enforced (see above), they constitute a basic social security need for subsistence in the area of housing and are not to be treated as debts within the meaning of Section 22 Paragraph 5 of the SGB II. In this respect, the Senate has also already recognized that the question of whether debts within the meaning of Section 22 Paragraph 5 Sentence 1 of the German Social Code, Book II (SGB II) or actual expenses for accommodation and heating within the meaning of Section 22 Paragraph 1 of the SGB II exist, irrespective of their classification under civil law, must be assessed based on the purpose of the benefits under the SGB II, namely to cover a need that has actually arisen and has not yet been covered by the SGB II provider (Federal Social Court judgment of March 22, 2010 – B 4 AS 62/09 R – SozR 4-4200 § 22 No. 38; judgment of June 17, 2010 – B 14 AS 58/09 R – BSGE 106, 190 = SozR 4-4200 § 22 No. 41).
If the additional claim for operating costs relates to a need that arose during the period of the recipient's eligibility for benefits under Book II of the German Social Code (SGB II) and has not yet been covered, then these are actual expenses to be borne by the SGB II provider pursuant to Section 22 Paragraph 1 of the SGB II. However, if the basic income support provider has already provided the recipient with the monthly advance payments to the landlord or energy supplier, thus already covering the current need in the past, and the additional claim is based on the non-payment of the advance payments for heating and operating costs demanded by the landlord, then these are considered debts (Federal Social Court judgment of June 17, 2010 – B 14 AS 58/09 R – BSGE 106, 190 = SozR 4-4200 § 22 No. 41; judgment of November 23, 2011 – B 14 AS 121/10 R – scheduled for publication).
However, as explained above, this is not the case here.
Note by Willi 2: BSG, Judgment of 06.04.2011, – B 4 AS 12/10 R-
Additional payments for operating costs relating to a period in which the benefit provider was also obligated to cover unreasonable costs within the meaning of Section 22 Paragraph 1 of the German Social Code, Book II (SGB II), are considered housing costs under Section 22 Paragraph 1 Sentence 1 of the SGB II, even if the ongoing costs can no longer be fully covered.
(sozialrechtsexperte.blogspot.com
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – Bavarian State Social Court, decision of 08.02.2012, – L 11 AS 49/12 B PKH –
Even taking into account the expert opinion of Münder (Social Security Extra 2011, 63ff), there is no evidence to suggest that the new standard needs law is unconstitutional.
The standard benefit rates applicable from January 1, 2011, were established by the Act on the Determination of Standard Benefit Rates and the Amendment of the Second and Twelfth Books of the Social Code (SGB XII) of March 24, 2011 (Federal Law Gazette I, pp. 453 ff.). Courts are bound by the law (Article 20, Paragraph 3, Article 97, Paragraph 1 of the Basic Law -GG-). In the event of a conflict between an ordinary law and the constitution, a court cannot place itself above the law; it can only refer the law to the Federal Constitutional Court pursuant to Article 100, Paragraph 1 of the Basic Law. However, this is only possible if the referring court is convinced of the unconstitutionality of the ordinary law (Jarass/Pieroth, Basic Law, Article 100, marginal note 10). Even taking into account the expert opinion of Münder (loc. cit.), the Senate is of the opinion that there are no corresponding indications that the new standard needs law is unconstitutional (cf. the Senate's decision of 12 October 2011 – L 11 AS 686/11 B PKH – with further references).
The legislature correctly selected the comparison group. While the plaintiffs might consider a different comparison group sensible, the legislature has discretion in this matter. In selecting the reference group, the legislature is only required to avoid circular reasoning. It has complied with this requirement imposed by the Federal Constitutional Court. It did not include households whose net income is below the level of benefits under the German Social Code, Book II (SGB II) or Book XII (SGB XII), in the reference group. Furthermore, it is solely the legislature's decision whether to exclude from the reference group those households with even a small additional income.
How cases of “hidden poverty” should be taken into account is currently incomprehensible to the Senate, although the legislature intends to further develop the definition of the reference households (see, among others, LSG Baden Württemberg, judgment of 21.10.2011 – L 12 AS 3445/11 -; Mogwitz in ZFSH SGB 2011, 323ff; Groth in NZS 2011, 571ff).
The plaintiffs' argument that the financial need for durable goods was not accurately determined because the households used for the calculation only kept records for three months is also unfounded. On the contrary, four groups recorded their consumer expenditures in a household ledger for one quarter each, thus continuously for a total of one year (see Mogwitz, loc. cit.). The Senate fails to see why this should have resulted in the exclusion of expenditures for durable goods.
The omission of various expenditure items does not render the standard allowance calculated by the legislature unconstitutional. It is the legislature's responsibility to make a value judgment regarding which expenditures it considers relevant to the standard allowance. In doing so, it has only deemed items irrelevant to the standard allowance that relate solely to participation in social life, but not to securing physical existence (see Mogwitz, op. cit.). This approach has not been challenged by the Federal Constitutional Court. Regarding the mobility needs raised by the plaintiffs, it should be noted that while the costs for a car or motorcycle were excluded as irrelevant to the standard allowance, the calculation was based on expenditures derived from a special analysis of individuals without a car.
The legislature has included participation benefits for children within the framework of the so-called education package. It is within its discretion how it chooses to structure these benefits. The legislature is not obligated to consider these benefits as part of the standard allowance and to provide them as a purely monetary benefit, particularly if it wishes to ensure that the benefit actually reaches the beneficiaries. The legislature is not required to pay the corresponding amount as a cash benefit to minors who – for whatever reason – cannot claim this benefit.
The regulation concerning the updating of standard allowance-relevant consumer expenditures (§ 7 of the Law on Determining Standard Allowances pursuant to § 28 SGB XII – Standard Allowance Determination Act) also appears constitutional to the Senate. Here, the legislature has exercised its discretionary power with the regulation in § 7 para. 2 of the Standard Allowance Determination Act.
Because there is no compulsory insurance in the statutory pension insurance scheme, the plaintiffs must contact the pension insurance institution, taking into account once again the legislator's freedom to shape the scheme.
Willi's comment 2: Aachen Social Court – New standard rates are constitutional
The standard benefit rates for recipients of benefits under Book Two of the German Social Code (basic income support for job seekers) and Book Twelve of the German Social Code (social assistance), which were newly established on January 1, 2011, by a change in the law, are compatible with the German Basic Law. This has now been confirmed in several recent decisions by the 2nd Chamber of the Aachen Social Court (Presiding Judge: Dr. Haupt), the 5th Chamber (Presiding Judge: Dr. Wille), the 19th Chamber (Presiding Judge: Dr. Merten), and the 20th Chamber (Presiding Judge: Irmen) in several recent rulings.
(sociallawexpert.blogspot.com
2.2 – Bavarian State Social Court, Judgment of 02.02.2012, – L 11 AS 853/09 –
Entitlement to standard benefits does not lapse upon moving out of a shared apartment if the benefit recipient stays in the local area during the day, his wife immediately informs him of incoming mail and forwards it.
Availability within the meaning of Section 119 Paragraph 5 of the German Social Code, Book III (SGB III) is not a prerequisite for receiving benefits under the German Social Code, Book II (SGB II).
The plaintiff's entitlement to benefits was not forfeited by his being outside the shared apartment, which he had provided as his address in his benefit applications to the defendant. According to Section 7 Paragraph 4a Sentence 1 of the German Social Code, Book II (SGB II), as amended by the Act on the Further Development of Basic Income Support for Job Seekers (FortentwG) of July 20, 2006 (Federal Law Gazette I 1706), anyone who, without the consent of their personal contact person, is outside the area defined in the Accessibility Order (EAO) of October 23, 1997 (ANBA 1997, 1685), as amended by the order of November 16, 2001 (ANBA 2001, 1476), is not entitled to benefits under the SGB II. The remaining provisions of this order apply accordingly (Section 7 Paragraph 4a Sentence 2 of the SGB II).
A definition of the area of proximity in time and place is thus derived from Section 2 Sentence 1 No. 3 Sentence 2 EAO (see decision of the Senate of 20.12.2010 – L 11 AS 798/10 B ER – cited according to juris; LSG North Rhine-Westphalia, decision of 27.03.2008 – L 7 B 315/07 AS – cited according to sozialgerichtsbarkeit.de; SG Hildesheim, judgment of 18.02.2009 – S 43 AS 1230/07 – cited according to juris; Hänlein in: Gagel, SGB II/SGB III, as of 01/2009, § 7 Rn 84b). The application of further provisions of the EAO, in particular the requirements in § 1 EAO (as apparently stated by Thie/Schoch in: LPK-SGB II, 4th ed., § 7 para. 111) or the other provisions of § 2 EAO (as apparently stated without reason by SG Frankfurt, judgment of 22.07.2010 – S 24 AS 1080/08 – cited according to juris) to define the area in the vicinity of the time and place is not possible (cf. Spellbrink in: Eicher/Spellbrink, SGB II, 2nd ed., § 7 para. 78 aE with further references).
Accordingly, the immediate vicinity includes all places in the vicinity of the defendant from which the beneficiary would be able to reach the defendant daily without unreasonable effort, if necessary.
The plaintiff, in the opinion of the Senate, was in A-City during the period in question, thus in the immediate vicinity. He stated that he stayed overnight at his sister-in-law's house within the city and also spent his days with his friends or parents within the city limits.
Availability within the meaning of Section 119 Paragraph 5 of the German Social Code, Book III (SGB III) is not a prerequisite for receiving benefits under the German Social Code, Book II (SGB II). Prior to the introduction of Section 7 Paragraph 4a of the SGB II, there was no corresponding regulation regarding the consequences of being away from one's immediate vicinity, although this could be addressed in an integration agreement. A violation could then trigger a sanction under Section 31 Paragraph 1 Sentence 1 Number 1b of the SGB II (in the version applicable until March 31, 2011; now Section 31 Paragraph 1 Sentence 1 Number 1 of the SGB II).
The legislator intended to tighten this sanction (see BT-Drs 16/1696 p. 26) in order to encourage benefit recipients who are absent from their place of residence to return and to actively participate in integration into the labor market, particularly in cases of a stay abroad while maintaining habitual residence in Germany (see also Hänlein aaO Rn 84a). With the introduction of Section 7 Paragraph 4a of the German Social Code, Book II (SGB II) by the Act on the Further Development of Social Services (FortentwG), the legislator therefore only intended to regulate an exclusion of benefits in the case of a stay outside the immediate vicinity without the consent of the personal contact person, but not to introduce the further availability requirements of Section 119 Paragraph 5 of the German Social Code, Book III (SGB III) into the SGB II (cf. Federal Social Court (BSG), judgment of November 23, 2006 – B 11b AS 3/05 R – para. 16 – cited according to juris = SozR 4-4200 § 16 No. 1; Valgolio in: Hauck/Noftz, SGB II, as of January 2012, Section 7 para. 263; similarly, Social Court (SG) Hildesheim, loc. cit.; Spellbrink, loc. cit.).
The plaintiff's entitlement to benefits therefore does not fail due to a lack of availability (within the meaning of Section 119 Paragraph 5 of the German Social Code, Book III), because the EAO (Regulation on the Approval of Benefits) presupposes the concept of "availability" as a legal requirement for entitlement and merely defines it (decision of the Senate of September 23, 2010 – L 11 AS 586/10 B ER – cited according to juris). The provision for the corresponding application of the EAO regulations in Section 7 Paragraph 4a Sentence 2 of the German Social Code, Book II, essentially only concerns the regulations on the approval procedure for a stay outside the immediate vicinity in terms of time and location in Section 3 of the EAO, so that daily accessibility of the benefit recipient at their postal address is not required for an entitlement to benefits under the German Social Code, Book II (Valgolio, loc. cit., paragraphs 262 et seq.; contrary, without explanation: Bavarian State Social Court, judgment of October 28, 2010 – L 8 AS 215/10).
The amendment to Section 7 Paragraph 4a of the German Social Code, Book II (SGB II) (new version), introduced by the Act on the Determination of Standard Needs and the Amendment of the Second and Twelfth Books of the German Social Code of March 24, 2011 (Federal Law Gazette I, p. 453), does not lead to a different conclusion. According to this amendment, employable benefit recipients will not receive benefits if they are staying outside the local area without the consent of the responsible agency under this book and are therefore not available for integration into the workforce (Sentence 1). Consent must be granted if there is an important reason for staying outside the local area and integration into the workforce is not impaired (Sentence 2).
Sentences 3 to 5 specify in particular what constitutes a valid reason and how long an absence from one's place of residence can last. According to the explanatory memorandum to the law (BT-Drs 17/3404 p. 92), the amendment clarifies that only those eligible for benefits who are capable of working lose their entitlement to benefits in the event of unauthorized absence from their place of residence, and that the lack of availability for integration services is a further requirement.
It cannot be concluded from this that the accessibility of the person entitled to benefits is the sole prerequisite for entitlement, because a lack of "availability" in this regard only leads to an exclusion from benefits if this is causally based on an unauthorized absence from the place of residence, § 7 para. 4a sentence 1 SGB II nF.
The fact that the Federal Ministry of Labor and Social Affairs is now authorized under Section 13 Paragraph 3 of the German Social Code, Book II (SGB II), to issue regulations without the consent of the Federal Council specifying more detailed provisions regarding the local area (Section 7 Paragraph 4a SGB II) and how long and under what conditions eligible recipients of benefits may stay outside this local area without losing their entitlement to benefits under this book, does not change anything. This is intended to eliminate a "systemic break," since the previous regulations were issued by the Federal Employment Agency through its Administrative Board as a self-governing body (Section 373 Paragraph 5 SGB III), which has no authority whatsoever for the implementation of the SGB II (see Thie/Schoch, loc. cit., para. 110).
Furthermore, the Federal Ministry is not authorized to create any further grounds for exclusion from benefits beyond mere absence from the place of residence. However, the present case does not involve such an absence. Moreover, if the legislature had actually intended to exclude benefits for lack of availability, irrespective of unauthorized absence from the place of residence, it could have explicitly regulated this accordingly, as the issue was and remains obvious in light of the aforementioned case law and commentary.
Note by Willi 2: Hamburg Social Court judgment of 14 November 2011, – S 6 AS 3726/10 –
The fulfillment effect of a benefit to the person entitled to receive it under Section 38 Paragraph 1 of the German Social Code, Book II (SGB II) does not retroactively cease if the household is dissolved in the current month.
Claims by members of a household receiving benefits against the recipient of benefits are of a civil law nature and generally do not affect the relationship with the social security agency responsible for benefits under Book II of the German Social Code (SGB II) (following the ruling of the Social Court of Nordhausen, judgment of May 18, 2011, S 12 AS 8691/10).
sozialrechtsexperte.blogspot.com
2.3 – LSG Mecklenburg-Vorpommern, decision of 5 January 2012, – L 10 B 331/10 ER –
The presumption rule pursuant to Section 7 Paragraph 3a No. 1 SGB II applies only if joint economic activity as such is undisputed and the residents merely assert that there is nevertheless no community of need.
In cases where cohabitation in the sense of a community of need is already disputed, this presumption rule is simply inapplicable.
The burden of proof and presentation remains with the SGB II provider.
Should the execution of a home visit fail entirely due to the applicant's refusal, this refusal would be legally legitimate, but would have to be taken into account against him in the assessment of evidence.
The applicant's use of the sublessor's account is an extremely strong indication of a cohabiting partnership:
This is an expression of significant mutual support.
The existence of employment relationships says nothing about personal relationships. – A different conclusion is only justifiable if two people provide each other with services of a magnitude that is unusual in a simple friendship or shared living arrangement.
The establishment of a sublease confirms the existence of a community of support if one party thereby becomes the sole debtor fully liable to the landlord.
Note by Willi 2: Social Court Stade, decision of 03.11.2011, – S 28 AS 777/11 ER –
If the presumption rule in Section 7 Paragraph 3a Number 1 of the German Social Code, Book II (SGB II) were to apply only if a shared household and economic community has existed for more than one year, then nothing would be gained by the legally introduced presumption rule, because the mere existence of a shared household and economic community is already an objectively compelling indication of the existence of a community of need within the meaning of Section 7 Paragraph 3 Number 3c of the SGB II.
(sozialrechtsexperte.blogspot.com
2.4 – Berlin-Brandenburg State Social Court, decision of 16 January 2012, – L 26 AS 2360/11 B ER –
Additional needs for disabled people – Participation in a vocational training program – No exclusion from benefits under the German Social Code, Book II (SGB II)
The new version of Sections 7 Paragraph 5 and 27 of the German Social Code, Book II (SGB II) as of April 1, 2011, does not clearly indicate that the legislator intended to include disabled trainees capable of working, i.e., trainees with an entitlement to training allowance, from the exclusion of benefits.
According to Section 7 Paragraph 5 of the German Social Code, Book II (SGB II nF), trainees whose training is eligible for funding under the Federal Training Assistance Act (BAföG) or Sections 60 to 62 of the German Social Code, Book III (SGB III), are not entitled to benefits to secure their livelihood beyond the benefits provided under Section 27.
The amendment to Section 7 Paragraph 5 of the German Social Code, Book II (SGB II) was intended to definitively regulate which benefits are available to the group of persons covered by Section 7 Paragraph 5 of the SGB II (see Thie in LPK-SGB II, 4th edition, Section 27, marginal note 1). According to the conclusive regulation in Section 27 Paragraph 2 of the SGB II (new version), benefits are provided in the amount of the additional needs as defined in Section 21 Paragraphs 2, 3, 5, and 6, and in the amount of the benefits as defined in Section 24 Paragraph 3 Number 2, insofar as the additional needs are not covered by income or assets that must be taken into account.
The additional needs allowance for employable disabled benefit recipients under Section 21 Paragraph 4 of the German Social Code, Book II (SGB II) was specifically not included in the list of benefits in Paragraph 2 (see Thie in LPK-SGB II, loc. cit., Section 27, marginal note 4). According to the wording of Section 7 Paragraph 5 of the SGB II (new version), the applicant is not excluded from receiving benefits under the SGB II. The vocational preparation course she completed is not eligible for funding under Section 2 of the Federal Training Assistance Act (BAföG).
Furthermore, the measure in question is not eligible for funding under Sections 60 to 62 of the German Social Code, Book III (SGB III). This is because the provision of benefits for participation in working life under Sections 97 et seq. of the SGB III supersedes the general regulations (see Higher Social Court of Berlin-Brandenburg, decision of February 11, 2008, L 5 B 10/08 AS ER, juris, para. 22). According to the case law on the exclusion of benefits under Section 7 para. 5 sentence 1 of the German Social Code, Book II (SGB II) (old version), benefits to secure the livelihood of trainees under the SGB II were only excluded for training-related needs (see Federal Social Court, judgment of September 6, 2007, B 14/7b AS 36/06 R = SozR 4-4200 § 7 No. 6).
The exclusion applicable to training courses eligible for funding under Sections 60 to 62 of the German Social Code, Book III (SGB III), pursuant to Section 7 Paragraph 5 Sentence 1 of the German Social Code, Book II (SGB II), did not apply to training courses eligible for funding under Sections 102 et seq. of the SGB II. Had the legislator intended to create an exclusion criterion in this respect as well, it could and should have referred to the relevant provisions (Berlin-Brandenburg Higher Social Court, decision of February 11, 2008, L 5 B 10/08 AS ER, loc. cit., with further references).
The revised wording of Sections 7(5) and 27 of the German Social Code, Book II (SGB II), effective April 1, 2011, does not clearly indicate that the legislator intended to include disabled trainees capable of working, i.e., trainees entitled to training allowance, from the exclusion of benefits. This scenario is still not covered by the wording of Section 7(5) of the SGB II (new version).
Therefore, in preliminary injunction proceedings, it is unnecessary to decide whether the applicant was even a trainee within the meaning of the law during the period in dispute. This appears at least doubtful in light of the content of the contract between the applicant and a GmbH dated September 20, 2011. According to the certificate issued by the provider on September 2, 2011, the measure is merely equivalent to vocational training.
The mere granting of training allowance does not imply that training is actually taking place.
According to Section 104 Paragraph 1 Number 1 of the German Social Code, Book III (SGB III), disabled persons are entitled to training allowance during vocational training or preparatory vocational training measures if transitional allowance is not provided. The legislative materials for Sections 7 Paragraph 5 and 27 of the German Social Code, Book II (SGB II nF) contain no indication that trainees entitled to training allowance were intentionally included in the exclusion clause.
Without such clear indications of a corresponding regulatory intention on the part of the legislator, there is more evidence for than against considering these cases as not being covered by the exclusion (cf. LSG Saxony-Anhalt, decision of December 6, 2011, L 2 AS 438/11 B ER, juris, para. 16, referring to LSG Hamburg, decision of July 6, 2011, L 5 AS 191/11 B ER, juris).
The legislative materials reveal (only) that the legislator intended to regulate the entitlement of trainees to additional needs for living expenses for the first time by law in § 27 para. 2 SGB II nF.
The additional needs allowance according to § 21 para. 4 SGB II is considered to be related to training.
Insofar as disabled trainees capable of working have additional needs related to their training, these are covered by other, special participation benefits (see BT-Dr. 17/3404, p. 103). The amendment to Section 7 Paragraph 5 of the German Social Code, Book II (SGB II nF) is a consequential amendment and clarification of Section 27 of the German Social Code, Book II (SGB II nF) (see BT-Dr. 17/3404, p. 92).
Note by Willi 2: Social Court Dresden, judgment of 04.10.2011, – S 38 AS 4463/10 –
Receiving benefits for participation in working life under Sections 97 et seq. of the German Social Code, Book III (SGB III) does not preclude eligibility for benefits under Section 7 of the German Social Code, Book II (SGB II).
sozialrechtsexperte.blogspot.com
2.5 – LSG Rhineland-Palatinate, decision of 31 January 2012, – L 3 AS 8/12 B ER –
An integration administrative act issued pursuant to Section 15 Paragraph 1 Sentence 6 of the German Social Code, Book II (SGB II) is not sufficiently specific in content (Section 33 Paragraph 1 of the German Social Code, Book X (SGB X)) and is therefore unlawful if this order neither specifies an exact number of applications whose costs will be reimbursed nor clarifies whether these are applications made based on the job center's placement proposals or on the applicant's own initiative.
The same applies if an SGB II provider stipulates in this administrative act that it will only cover the costs of an "agreed application", but does not specify this in more detail.
The wording of the integration agreement stipulates that cost reimbursement is only guaranteed for applications agreed upon between the respondent and the applicant. The text does not specify what constitutes an "agreed-upon application." It neither mentions a number of applications for which costs will be reimbursed nor clarifies whether these are applications made based on the respondent's job placement suggestions or on the applicant's own initiative.
Which applications are considered agreed upon and whose costs will be reimbursed cannot be determined through interpretation. When interpreting declarations of intent, the provisions of Sections 133 and 157 of the German Civil Code (BGB) must also be applied in public law. According to these provisions, the perspective of a reasonable recipient must be assumed. In the case of official decisions, the context that the authority demonstrably considered in its decision must be taken into account (Federal Social Court, Judgment of August 27, 2011 – B 4 AS 1/10 R).
The relevant point of reference for the question of a possible cost reimbursement commitment is the respondent's obligation under point 1 of the integration agreement to submit job placement proposals to the applicant, provided suitable job offers are available. In this respect, the submission of job placement proposals is part of the integration agreement and not merely, as the respondent argues, his statutory duty. In connection with the submission of job placement proposals, the agreement addresses the reimbursement of application costs. Whether unsolicited applications are also covered by cost reimbursement cannot be determined from the overall context of the statements in point 1 of the integration agreement. No substantive connection to point 2 of the integration agreement is established.
Furthermore, it is unclear to what specific extent application costs are to be reimbursed. The applicant has been instructed to submit at least five applications per month. It is unclear whether more than five applications will be funded, as even if more than five were submitted, the applicant would still be within the agreed-upon limits. The respondent's obligations in the integration agreement do not contain any numerical limitation. In the appeal proceedings, the respondent now argues that only the costs of the five agreed-upon applications will be covered. This also demonstrates the vagueness of this cost commitment provision.
Not yet published
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – Stuttgart Social Court, decision of February 8, 2012, – S 14 AS 595/12 ER –
An objection raised against the set-off ordered pursuant to Section 42a Paragraph 2 of the German Social Code, Book II (SGB II) has suspensive effect.
Section 39 No. 1 of the German Social Code, Book II (SGB II) does not apply in the case of an offset ordered by a Job Center, because this does not constitute a cancellation, withdrawal or revocation of the grant of benefits under the SGB II.
The applicant's objection has suspensive effect according to the general rule of Section 86a Paragraph 1 Sentence 1 of the Social Court Act (SGG), as none of the cases in which the suspensive effect is waived pursuant to Section 86a Paragraph 2 of the SGG apply; in particular, Section 39 of the German Social Code, Book II (SGB II) does not apply, according to which objections and actions for annulment against an administrative act that 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 integration into work are not applicable
(No. 1), which effects the transfer of a claim (No. 2), with which an application for a priority benefit is requested (No. 3), or with which, pursuant to Section 59 in conjunction with Section 309 of Book Three of the Social Code, a personal report to the Employment Agency is requested (No. 4), does not have suspensive effect, because the set-off is, in particular, not a cancellation, withdrawal, or revocation of the benefit award (State Social Court of Saxony-Anhalt, decision of December 27, 2011 – L 5 AS 473/11 B-ER; Bittner in jurisPK-SGB II, 3rd ed. 2012, Section 42a para. 33.1).
Pursuant to Section 86b Paragraph 1 Sentence 1 Number 2 of the Social Courts Act (SGG), the court may, upon application, order the suspensive effect in whole or in part in cases where an objection or appeal does not have suspensive effect. While such a case does not exist here, since the respondent disregarded the suspensive effect of the objection and enforced the decision by reducing the payment amount, the suspensive effect of the objection must be established by analogy to Section 86b Paragraph 1 Sentence 1 Number 2 SGG (Keller in: Meyer-Ladewig/Keller/Leitherer, SGG, 9th ed. 2008, Section 86b, marginal note 15).
Not yet published.
Note by Willi 2: State Social Court of Saxony-Anhalt, decision of December 27, 2011, – L 5 AS 473/11 B ER –
An appeal against the repayment obligation of a rental deposit loan has suspensive effect pursuant to Section 39 of the German Social Code, Book II (SGB II).
(socialrechtsexperte.blogspot.com
4. Decisions of the Social Courts on Social Assistance (SGB XII)
4.1 – Schleswig Social Court, Judgment of 14 February 2012, – S 11 SO 98/08 –
Regarding the increased needs due to costly nutrition in the case of atopic dermatitis
An article by attorney Helge Hildebrandt.
Note by Willi 2: BSG, Judgment of 22.11.2011, -B 4 AS 138/10 R –
The recommendations of the German Association dated October 1, 2008, regarding the granting of dietary allowances for sickness benefit recipients under social assistance (DV) are not an anticipated expert opinion.
sozialrechtsexperte.blogspot.com
5. The influence of maternity protection law on the German Social Code, Book II (SGB II)
By Judge Anders Leopold of Hamburg
Recently, there have been increasing reports of cases in which pregnant benefit recipients were supposed to be placed in jobs or employment opportunities, and whose benefits under the German Social Code, Book II (SGB II) were reduced due to failure to take up these jobs or failure to report.
At this intersection of social and labor law, the question arises whether and to what extent the provisions of maternity protection law must be observed within the framework of the German Social Code, Book II (SGB II). This is the subject of the following discussion.
Author of the legal case ticker: Willi 2 from Tacheles
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
