1. Decision of the Federal Social Court of 20 November 2011 on basic income support for job seekers (SGB II)
1.1 – BSG, Judgment of 20.11.2011, – B 4 AS 19/11 R-
It is the task of the basic income support provider to develop a coherent concept for determining the appropriate accommodation costs already in the administrative procedure.
Regarding the appropriateness of accommodation costs in the city of Duisburg – a coherent concept – a qualified rent index for the city of Duisburg – requirements for data collection and evaluation.
This serves to implement the criteria developed for the indeterminate legal concept of the appropriateness of accommodation costs. Based on the data it has provided, or the additional data and documents it requests and is required to provide as part of its duty to investigate ex officio, the court must verify whether the assumed rent ceiling is appropriate.
In their approach of reviewing and setting a different value for the net rent determined by the defendant – before resorting to the table values in Section 8 of the Housing Benefit Act (WoGG) or now Section 12 of the Housing Benefit Act (WoGG) – using a qualified rent index, the lower courts correctly assumed that the data from the qualified rent index for the city of Duisburg could be used to determine the appropriate reference rent according to a coherent concept.
However, this requires that data collection takes place across the entire comparison area, that the data included are representative, and that mathematical-statistical principles are adhered to during data evaluation.
Because of the differing objectives and methodology of creating rent indices, it must be ensured that the actual housing stock underlying the considered rent index values in the comparison area enables the rental of a suitable apartment throughout the entire comparison area, without restricting those entitled to benefits to specific districts.
Therefore, the inclusion of a specific rental value in a rent index table initially only allows for the assumption that a particular rental value existed on the overall housing market at the time the data was collected. It provides no information about the actual housing stock in the comparison area.
Taking this into account, the Senate cannot definitively assess whether the value of €4.12 per square meter determined by the lower courts based on the rent index reflects a reasonable net rent. It cannot be assumed without further data that, considering only the lower end of the range for apartments in normal residential areas of building age classes I to IV, reasonable housing can actually be rented throughout the entire comparison area.
This also applies to the LSG's calculations, because they include apartments in basic residential areas, which, according to the LSG's findings, are only available to a limited extent in Duisburg and, due to their lack of frequency, were already disregarded as unrepresentative when the rent index was compiled. Further findings are also necessary because of the exclusion of certain building age categories. Despite the high proportion of apartments in these age categories, this carries the risk that the determination of reasonable housing costs will not be carried out – as required – across the entire comparison area, but – in effect – only limited to specific districts.
From a qualitative point of view, certain building age categories can only be excluded if it is established that buildings of these age categories do not significantly shape the rental market of the lower market segment (BSG judgment of 19.2.2009 – B 4 AS 30/08 R, para. 25).
The scope of the investigations – primarily to be carried out by the basic income support provider – into the housing stock underlying the table fields depends fundamentally on the data material – which varies depending on the rent index – the potentially "excluded" proportion of apartments, and the total housing stock in the comparison area. The explanatory sheet on the actual number of apartments per rent index field, which was sent by the defendant with the rent index documentation, can be included here, among other things.
An overall assessment may reveal that considering weighted averages of the table fields used ensures that – with regard to the apartments considered – a sufficient stock exists and thus adequate housing is actually accessible to the person entitled to benefits (cf. regarding the Berlin rent index, BSG judgment of 19.10.2010 – B 14 AS 50/10 R, para. 32).
The Senate has already ruled that the upper limit of the range must be taken into account as the limit of appropriateness if – given the available data – only apartments of basic standards are considered (BSG judgment of 22.9.2009 – B 4 AS 18/09 R, para. 21).
To determine the abstractly reasonable accommodation costs, in addition to the net rent, the "cold operating costs" must be included, although local overviews must be consulted.
Quote: 14
Benefits for accommodation and heating are provided in the amount of the actual expenses, insofar as these are reasonable (cf. Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II). The concept of "reasonableness" is an indeterminate legal term subject to unrestricted judicial review (Federal Social Court judgment of November 7, 2006 – B 7b AS 10/06 R – BSGE 97, 231 = SozR 4-4200 § 22 No. 3; Federal Social Court judgment of December 17, 2009 – B 4 AS 27/09 R – SozR 4-4200 § 22 No. 27).
To determine the abstractly appropriate benefits for accommodation, the appropriate size of the apartment and the relevant local comparison area must first be determined.
A dwelling is considered adequate only if, in terms of its furnishings, location, and building structure, it meets simple and basic needs and does not offer a high standard of living. It is sufficient that the product of living space and standard, reflected in the rent, is reasonable (Federal Social Court judgment of November 7, 2006 – B 7b AS 10/06 R, BSGE 97, 231 = SozR 4-4200 § 22 No. 2, each at paragraph 20; Federal Social Court judgment of December 17, 2009 – B 4 AS 27/09 R – SozR 4-4200 § 22 No. 27).<Essen> , paragraphs 15, 17).
15
Insofar as the actual expenses of the benefit recipient for their accommodation exceed the reasonable reference rent, these expenses shall be taken into account – provided the benefit recipient presents corresponding objective reasons – for as long as it is not specifically possible or reasonable for them to reduce the expenses by renting an apartment classified as reasonable, by subletting, or by other means, but generally for no longer than six months (Section 22 Paragraph 1 Sentence 2 of the German Social Code, Book II, old version, which became Sentence 3 without substantive change through the introduction of the new Sentence 2 by the Act to Further Develop Basic Income Support for Job Seekers of July 20, 2006 – Federal Law Gazette I 1706; cf. Federal Social Court judgment of February 19, 2009 – B 4 AS 30/08 R, BSGE 102, 263 = SozR 4-4200 § 22 No. 19).<München> , RdNr 29; BSG Judgment of 17.12.2009 – B 4 AS 27/09 R – SozR 4-4200 § 22 No. 27, RdNr 30).
Since the appropriate reference rent must be set when determining the abstractly reasonable costs in such a way that the benefit recipient is generally able to rent suitable accommodation throughout the entire comparable area, and since a shortage of adequate housing exists only in certain regions of Germany, it can generally be assumed that there are sufficient apartments available at the abstractly reasonable accommodation allowance (cf. already the Senate's judgment of February 19, 2009 – B 4 AS 30/08 R – BSGE 102, 263 = SozR 4-4200 § 22 No. 19).<München> , paragraphs 36 and 29 regarding possible personal circumstances for the exceptional case requiring justification; see also BSG judgment of 13 April 2011 – B 14 AS 106/10 R – intended for publication – for the determination of the abstractly appropriate housing costs including qualified rent indices, paragraph 30).
juris.bundessozialgericht.de
Comment by Willi 2: Federal Social Court (BSG), Judgment of October 6, 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.
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2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – Bavarian State Social Court, decision of 01.03.2012, – L 7 AS 1032/11 NZB –
The costs for clothing and hairdressing appointments in connection with an upcoming job interview are included in the standard allowance under Section 20 of the German Social Code, Book II (SGB II).
Accordingly, the exclusion of benefits pursuant to Section 45 Paragraph 3 Sentence 2 of the German Social Code, Book III (SGB III) also applies with regard to a claim under Section 16 of the German Social Code, Book II (SGB II).
2.2 – Schleswig-Holstein State Social Court, judgment of 6 December 2011, - L 11 AS 97/10 -, pending before the Federal Social Court under file number - B 14 AS 13/12 R –
No additional housing requirement for single parents.
An article by attorney Helge Hildebrandt.
Quote:
In legal practice, it is disputed whether single parents receiving social benefits are entitled to additional housing allowance (see, for example, LSG Lower Saxony-Bremen, decision of 27.07.2010, L 9 AS 1049/09 B ER).
In Schleswig-Holstein, according to the state law implementing provisions for Section 10 WoFG, the following square meter figures apply: 1 person up to 50 sqm, 2 persons 50 to 60 sqm, 3 persons 60 to 75 sqm and from then on 10 sqm more per person.
This is based on the idea that every person should have their own room. If parents are raising their child alone, it is sometimes assumed that, in addition to the parent's bedroom and the child's room, there is a need for another room for shared family life and for entertaining guests, such as a living room.
The rule "one room per person" cannot apply to single parents because, unlike families with two parents, the single parent needs their own bedroom, whereas in a family with two parents and one child, the parents share the bedroom and therefore, even with three rooms ("one room per person") – i.e., parents' bedroom, children's room, living room – a space for shared family life is guaranteed.
sozialberatung-kiel.de
Note by Willi 2: Social Court Lüneburg, decision of 29.06.2011, – S 45 AS 257/11 ER –
Increasing the appropriate living space for single parents must be taken into account when determining reasonable housing costs.
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2.3 – North Rhine-Westphalia State Social Court, decision of 26 January 2012, – L 7 AS 2203/11 B –
According to the legislator's intent, it is generally reasonable for those in need of assistance, like all other insured persons, to change their health insurance provider if that provider introduces an additional contribution for the first time or increases it, and they do not wish to bear it themselves.
The legislator assumes that every insured person – regardless of their income – can reasonably be expected to pay an additional contribution of €8.00 per month, or that, in cases of subjective unreasonableness, the person concerned can exercise their right to terminate the contract pursuant to Section 175 Paragraph 4 Sentence 5 of the German Social Code, Book V (SGB V). The imposition of an additional contribution, as well as changing health insurance providers in the event of such an imposition, constitutes only a general hardship (Social Court Neuruppin, judgment of November 30, 2010, S 26 AS 1166/10, paragraphs 21 et seq., juris).
The plaintiff's claim for reimbursement of the additional contribution from June 2011 onwards also remains without sufficient prospect of success.
According to Section 26 Paragraph 3 of the German Social Code, Book II (SGB II nF), the Federal Employment Agency pays the supplementary contribution to statutory health insurance pursuant to Section 242 of the German Social Code, Book V (SGB V) (only) for persons who would become dependent on social assistance solely due to these expenses. This is not the case for the plaintiff. The plaintiff also cannot claim the supplementary contribution as an unavoidable ongoing need (Federal Constitutional Court, Judgment of February 9, 2010 – BvL 1/09, para. 208 et seq., juris), since a statutory provision, Section 26 Paragraph 4 of the SGB II, takes precedence in this respect (Federal Social Court, Judgment of August 19, 2010 – B 14 AS 13/10 R, para. 23, juris; Social Court Neuruppin, ibid., para. 33, juris).
2.4 – North Rhine-Westphalia State Social Court, decision of 23 January 2012, – L 19 AS 1747/11 B –
The diet required according to the additional needs recommendations, consisting of a so-called "whole diet" for diabetes mellitus I/II, does not fall under the provision of Section 21 Paragraph 5 SGB II a. F., since it is not a medical diet to which the provision refers, but rather a way of eating that is based on the ideal of a healthy person.
Note by Willi 2: North Rhine-Westphalia State Social Court, decision of 22.09.2011, – L 7 B 440/09 AS –
Hartz IV rule – the rate is insufficient for full board –
In the context of the claim under Section 21 Paragraph 5 of the German Social Code, Book II (SGB II), it must be ensured that an eligible person who, for medical reasons (contrary to typical consumer behavior), requires a full-board diet, can live with their illness or disability on this basis (energy requirements).
sozialrechtsexperte.blogspot.com
2.5 – Berlin-Brandenburg State Social Court, decision of 29 February 2012, – L 20 AS 2347/11 B ER
Romanian citizens are excluded from benefits under the German Social Code, Book II (SGB II).
The Senate is not convinced that Section 7 Paragraph 1 Sentence 2 No. 2 of the German Social Code, Book II (SGB II) is incompatible with European law.
Only such a conviction could exceptionally justify him not applying this formal law. Unlike in proceedings under Section 86b Paragraph 1 of the Social Court Act (SGG), where a decision may have to be made based on a balancing of interests (see Higher Administrative Court of Berlin, decision of March 13, 1996 – 7 NC 147.95, NVwZ 1996, 1239; Higher Administrative Court of Lüneburg, decisions of March 10, 2010 – 12 ME 176/08, NuR 2010, 290, and of January 5, 2011 – 1 MN 178/10, BauR 2010, 990), the courts are generally not authorized under Section 86b Paragraph 2 to treat formal laws as invalid. This applies in particular if the court merely has doubts about the compatibility of the norm with higher-ranking law (contra: Lower Saxony-Bremen Higher Social Court, decision of August 11, 2011 – L 15 AS 188/11 B ER; Berlin-Brandenburg Higher Social Court, decisions of November 30, 2010 – L 34 AS 1501/10 B ER –, of May 17, 2011 – L 28 AS 566/11 B ER –, of June 20, 2011 – L 25 AS 535/11 B ER – and of September 30, 2011 – L 14 AS 1148/11 B ER, L 14 AS 1152/11 B PKH; Bavarian Higher Social Court, decision of December 22, 2010 – L 16 AS 767/10 B ER; Hessian Higher Social Court, decision of July 14, 2011 – L 7 AS 107/11 B ER).
Only in exceptional cases, if the court is convinced that a domestic provision is incompatible with European law and, moreover, the enforcement of the applicant's claims would be definitively denied, does Article 19 Paragraph 4 of the Basic Law take precedence over Article 20 Paragraph 3 of the Basic Law, with the consequence that, exceptionally, an interim injunction may be issued. This, however, requires an otherwise conclusive examination of the facts and the law, even in expedited proceedings; there is no room for a "balancing of consequences" (see also, in effect, the Social Court of Dresden, decision of August 5, 2011 – S 36 AS 3461/11 ER). The aforementioned decisions of the Higher Social Courts do not indicate a conviction that Section 7 Paragraph 1 Sentence 2 No. 2 of the German Social Code, Book II (SGB II) is incompatible with European law. No request for a preliminary ruling from a Higher Social Court is known. The Senate also cannot reach such a conclusion.
Section 7 paragraph 1 sentence 2 no. 2 of the German Social Code, Book II (SGB II) is not inapplicable simply because of the principle of equal treatment under Article 1 of the European Convention on Social and Cultural Rights (ECCR) (cf. Federal Social Court, judgment of January 18, 2011 – B 4 AS 14/10 R). The applicants are not covered by the scope of protection of the ECCR because Romania has not yet ratified the treaty. Even if they were covered by the scope of protection of the ECCR, Section 7 paragraph 1 sentence 2 no. 2 of the SGB II would remain unaffected by the principle of equal treatment under Article 1 of the ECCR since the German Federal Government's notification to the Council of Europe on December 19, 2011, of its reservation pursuant to Article 16 letter b of the ECCR.
The Senate is also not convinced that the exclusion of benefits under Section 7 Paragraph 1 Sentence 2 No. 2 of the German Social Code, Book II (SGB II) is not covered by Article 24 Paragraph 2 of Directive 2004/38/EC – the so-called Citizens' Rights Directive – insofar as benefits for subsistence are sought (see also Peters in Estelmann, SGB II, Section 7, marginal note 14, and with correct considerations the Higher Social Court of Berlin-Brandenburg in its decision of June 8, 2009 – L 34 AS 790/09 B ER –; however, this Senate has since abandoned its case law, decision of November 30, 2011 – L 34 AS 1501/10B ER, L 34 AS 1518/10 B PKH).
According to Article 24(2) of Directive 2004/38/EC, the host Member State is not obliged to grant social assistance or, prior to the acquisition of the right of permanent residence, educational grants, including grants for vocational training, in the form of a scholarship or student loan, to persons other than employed persons or self-employed persons, persons who retain this status, and their family members during the first three months of their stay or, where applicable, during the longer period provided for in Article 14(4)(b). Article 14(4)(b) of the Directive stipulates that under no circumstances may an expulsion order be issued if Union citizens have entered the territory of the host Member State to seek employment. In this case, Union citizens and their family members may not be expelled as long as the Union citizens can demonstrate that they are continuing to seek employment and that they have a reasonable prospect of being hired. Section 7 paragraph 1 sentence 2 no. 2 of the German Social Code, Book II (SGB II) is based on these European legal provisions (see BT-Drs. 16/688, p. 13).
The Senate also has no reservations about considering the benefits sought in this case to secure the livelihood as social assistance benefits within the meaning of Article 24(2) of the Citizens' Rights Directive. The question of which benefits fall under this definition of social assistance must be answered in accordance with Article 39(2) of the EC Treaty (ECJ, Judgment of 4 June 2009, Vatsouras, Koupatantze, C-22/08 and C-23/08). According to Article 39(2) EC Treaty, the freedom of movement for workers, guaranteed by Article 39(1) EC Treaty, includes the abolition of any discrimination based on nationality between workers of the Member States with regard to employment, remuneration and other working conditions.
Against the background of this principle of equal treatment, it is no longer possible to exclude nationals of one Member State who are seeking employment in another Member State from financial benefits if these benefits are intended to facilitate access to the labor market of that Member State (ECJ, judgments of 23 March 2004, Collins, C-138/02, and of 15 September 2005, Ioannidis, C-258/04). It is irrelevant that Romanians are still subject to restrictions on their freedom of movement until 31 December 2013 pursuant to Article 1(3) of the EU Accession Treaty in conjunction with the decision of the German Federal Cabinet of 7 December 2011, since the benefits applied for by the applicants are not financial benefits intended to facilitate access to the labor market, but rather state welfare benefits intended to ensure their basic needs are met.
It is for national authorities and domestic courts not only to establish the existence of an actual link with the labor market, but also to examine the fundamental characteristics of these benefits (ECJ, Judgment of 4 June 2009, Vatsouras, Koupatantze, C 22/08 and C 23/08). A fundamental characteristic of the benefits sought by the applicants to secure their livelihood is their "passivity," that is, their function of ensuring their existence (cf. regarding the character of the German Social Code, Book II (SGB II) as a welfare law, Federal Social Court (BSG), Judgment of 19 October 2010 – B 14 AS 23/10 R). However, they do not request "active" integration services into employment (cf. regarding the separability of benefits in the German Social Code, Book II, also in detail SG Berlin, judgment of December 16, 2011 – S 26 AS 10021/08; decision of the SG Dresden of August 5, 2011 – S 36 AS 3461/11 ER; LSG Berlin-Brandenburg, 34th Senate, loc. cit.).
The provisions of the German Social Code, Book II (SGB II), merge the former unemployment assistance and the former social assistance (Bundestag printed matter 15/1516, p. 44). The previous coexistence of two state welfare benefits was to be ended, and the principle of "work instead of passive benefits" was to be better implemented (ibid.). However, benefits for integration into the labor market continue to be provided as active integration services and as passive benefits to secure subsistence (ibid., p. 50). While the active benefits are intended to support employable individuals in taking up employment, the passive benefits are intended to secure the subsistence of the employable person in need and the members of their household, insofar as they cannot secure it in any other way (ibid.). The applicants are seeking only benefits that serve to secure their basic needs, and thus social assistance benefits within the meaning of Article 24(2) of the Citizens' Rights Directive.
The Senate is also not convinced that Section 7 Paragraph 1 Sentence 2 Number 2 of the German Social Code, Book II (SGB II) is incompatible with European law simply because it might violate Regulation (EC) No. 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems – Regulation 883/2004. While there are doubts as to whether the exclusion of benefits in the SGB II is compatible with Regulation 883/2004 (see Higher Social Court of Berlin-Brandenburg, decision of 30 September 2011 – L 14 AS 1148/11 B ER, L 14 AS 1152/11 B PKH; Social Court of Dresden, decision of 5 August 2011 – S 36 AS 3461/11 ER). The Senate does not consider the assumption of the incompatibility of Section 7 Paragraph 1 Sentence 2 Number 2 of the German Social Code, Book II (SGB II) to be compelling and therefore remains unconvinced of the incompatibility of Section 7 Paragraph 1 Sentence 2 Number 2 of the SGB II with European law. According to Article 4 of Regulation (EC) No 883/2004, persons to whom this Regulation applies have the same rights and obligations under the laws of a Member State as nationals of that State.
The personal scope of the Regulation extends, according to Article 2(1), inter alia, to nationals of a Member State, while its material scope, according to Article 3(1)(h), extends to unemployment benefits. According to Article 3(3) of Regulation (EC) No 883/2004, the Regulation expressly also applies to the special non-contributory cash benefits under Article 70, which, according to Article 70(2)(c) in conjunction with Annex X, also include, for Germany, benefits to secure subsistence under basic income support for jobseekers, insofar as these benefits do not, in principle, meet the requirements for the temporary supplement after receipt of unemployment benefits (Section 24(1) of Book II of the German Social Code). While the isolated wording of Regulation (EC) No 883/2004 suggests a fundamental right of all Union citizens to equal treatment with regard to seemingly all benefits under basic income support for jobseekers, this conclusion is not necessarily compelling from a historical-systematic and teleological interpretation.
The Citizens' Rights Directive, which in Article 24(2) opens up the possibility of excluding someone from benefits, and Regulation (EC) No 883/2004, according to which the aforementioned exclusion from benefits would not be possible, both date from the same day, namely April 29, 2004. It cannot be assumed that the European Parliament and the Council intended to enact contradictory regulations (cf. regarding the "contradictions" SG Dresden, loc. cit., which, however, concludes that Section 7(1), sentence 2, no. 2 of the German Social Code, Book II (SGB II) is incompatible with Regulation (EC) No 883/2004). This is all the more true since Regulation (EC) No 883/2004 aimed to coordinate social security systems, but not to harmonize substantive standards (see Schreiber in Regulation (EC) No 883/2004, Commentary, 2012, Introduction, para. 5). Therefore, the provisions of Regulation (EC) No 883/2004 were unlikely to have been intended to undermine the possibility of Member State exclusion from benefits based on Article 24(2) of the Citizens' Rights Directive. Under the previous substantive standard, as reflected in Regulation (EC) No 1408/71, which was largely repealed by Article 90 of Regulation (EC) No 883/2004, jobseekers were not included in the personal scope of application (Article 2 of Regulation (EC) No 1408/71; see Schreiber, ibid., Article 70, para. 5).
Therefore, it is difficult to understand why, in departure from the previous material standard, Annex X of Regulation 883/2004, which was previously empty for Germany, was supplemented by Regulation (EC) No 988/2009 of the European Parliament and of the Council of 16 September 2009 to include benefits to secure the livelihood of jobseekers receiving basic income support, insofar as the conditions for the temporary supplement after receipt of unemployment benefit (Section 24 paragraph 1 of the Second Book of the Social Code) are not met for these benefits.
These benefits were classified as special non-contributory benefits within the meaning of Article 70 of Regulation (EC) No 883/2004 upon their inclusion in Annex X, even though – as explained above – some of them are social welfare benefits, which are expressly excluded from the scope of Regulation (EC) No 883/2004 pursuant to Article 3(5). The inclusion of benefits under Book XII of the German Social Code (SGB XII) in Annex X is no longer comprehensible, as these would undoubtedly be welfare benefits under German federal law (see also Fuchs in European Social Law, 5th edition 2010, Article 70, para. 14).
Whether the benefits in question here are indeed special, contribution-independent benefits or rather social welfare benefits would have to be reviewed by the ECJ (see Schreiber, loc. cit., Art. 70, para. 22). The Senate is also not convinced, by way of a European law-friendly interpretation of the effet utile principle, that Section 7 Paragraph 1 Sentence 2 No. 2 of the German Social Code, Book II (SGB II) is contrary to European law. Given that Romanians and Bulgarians remain excluded from unrestricted freedom of movement until the end of 2013 – and this exclusion is legitimized under European law by virtue of Section 1 Paragraph 3 of the EU Accession Treaty – there is an objective reason to exclude them from the benefits applied for here.
The exclusion of benefits under the basic income support scheme for job seekers in Section 7 Paragraph 1 Sentence 2 No. 2 of the German Social Code, Book II (SGB II) corresponds for Romanians and Bulgarians to their exclusion from unrestricted freedom of movement (see the detailed reasoning of the Higher Social Court of North Rhine-Westphalia in its decision of June 28, 2011 – L 19 AS 317/11 B ER – with further references).
According to the aforementioned reservation covered by Article 16(b) EFA, the Federal Government itself continues to assume that Section 7(1) sentence 2 no. 2 SGB II legally excludes any entitlement to benefits under the SGB II for nationals of all other Member States.
Willi 2's comment: Reservation regarding the European welfare agreement
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Willi 2's comment: Comment on: Federal Social Court (BSG), 14th Senate, Judgment of October 19, 2010 – B 14 AS 23/10 R –, Author: Dr. Björn Harich, Judge at the Social Court, Publication date: July 28, 2011, Source: jurisPR-SozR 15/2011 Note 1
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3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – SG Aurich, Judgment of 08.03.2012 – S 35 AS 201/11 R –
Costs for bulky waste disposal are considered part of the accommodation costs if they are reasonable and must be covered by the job center.
The job center had refused to cover the costs of bulky waste disposal, which were charged separately by the waste disposal company, because these were not costs of accommodation but of general living expenses.
Accommodation costs include operating costs that can be passed on to tenants according to the German Operating Costs Ordinance (BKV) (in conjunction with Section 556 Paragraph 1 of the German Civil Code (BGB)) (Federal Social Court, 19 February 2009 – B 4 AS 48/08 R). According to Section 2 No. 8 of the BKV, waste disposal costs also include the costs of waste disposal, which also includes bulky waste.
Not yet published.
3.2 – Social Court Aachen, Judgment of 30 January 2012, – S 14 AS 1061/11 –
A conclusive concept can, in principle, also be a qualified rent index within the meaning of Section 558d of the German Civil Code (BGB), as well as a simple rent index (Federal Social Court, judgment of October 19, 2010, case no. B 14 AS 50/10 R).
According to the jurisprudence of the Federal Social Court (BSG), the appropriateness of housing costs in individual cases is generally determined according to the so-called product theory. This theory calculates the appropriateness of housing costs based on the abstractly appropriate size of accommodation for the benefit recipient (1st factor) and the rent per square meter that is appropriate according to local conditions (2nd factor).
It is not necessary for both factors to be appropriate on their own; rather, the product of living space (number of square meters) and standard (rent per square meter) alone must result in an overall appropriate rent (for the product theory, see BSG, judgment of 19.02.2009, file no. B 4 AS 30/08; judgment of 07.11.2006, file no. B 7b AS 18/06 R).
To determine the factor “rental price per square meter”, a simple standard in the lower market segment should be used as a basis; the apartment must meet simple and basic needs with regard to its furnishings, location and building structure.
The determined appropriate reference rent or the rent ceiling must therefore be chosen in such a way that it is possible for the person in need of assistance to rent an "appropriate" apartment in the specific comparison area (see: BSG, judgment of 07.11.2006, file no. B 7b AS 10/06 R; judgment of 07.11.2006, file no. B 7b AS 18/06 R; judgment of 19.10.2010, file no. B 14 AS 50/10 R).
According to the Federal Social Court's (BSG) jurisprudence, the rent ceiling must be determined based on a coherent concept that adheres to these guidelines (see BSG judgment of June 18, 2008, case no. B 14/7b AS 44/06 R; judgment of October 19, 2010, case no. B 14 AS 50/10 R). A coherent concept must, according to the strict and differentiated requirements of the BSG, meet at least the following prerequisites:
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 object of observation is required, e.g., what type of apartments; a differentiation must be made according to apartment standard, gross and net rent (comparability), and apartment size; the observation period must be specified; the method of data collection (sources of information, e.g., rent index) must be defined; the scope of the collected data must be representative; the data collection must be valid and evaluated in accordance with recognized mathematical and statistical principles; finally, information on the conclusions drawn (e.g., upper limit of the range or cap) must be provided (Federal Social Court, Judgment of December 17, 2009, Case No. B 4 AS 50/09 R).
A conclusive concept can, in principle, also be a qualified rent index within the meaning of Section 558d of the German Civil Code (BGB), as well as a simple rent index (Federal Social Court, judgment of October 19, 2010, case no. B 14 AS 50/10 R).
However, this must then provide sufficient assurance that the current conditions of the local rental housing market are reflected. This can be the case, among other things, if the data is based on at least 10 percent of the rental housing stock relevant to the region. Furthermore, the factors that determine the "rent price" (standard, possibly also expressed in the year of first occupancy or last renovation, plus apartment size and amenities) must be included in the analysis (Federal Social Court, judgment of June 18, 2008, case no. B 14/7b AS 44/06 R). In particular, the data collection must cover the entire comparison area, and the data included must be representative.
Because of the differing objectives and methodology of creating rent indices, it must also be ensured that the actual housing stock underlying the rent index values in the comparison area enables the rental of a suitable apartment throughout the entire comparison area, without restricting those entitled to benefits to specific districts (BSG, Report No. 68/11 on the judgment of 20.12.2011, file no. B 4 AS 19/11 R).
If conclusions relevant to basic income support are to be drawn from rent index data, restricting the analysis to data from specific building classes is generally inadmissible unless statistically valid material is available that allows for a statement about which building classes, and to what extent, actually characterize the entire city as a comparison area – and not merely very specific parts of the city considered socially problematic. The rent index alone does not reveal the extent to which apartments of a particular building age are available in sufficient numbers to allow the conclusion that an "adequate" apartment is actually available for rent in the specific comparison area.
The allocation of data to individual cells in a rent index only allows for the assumption that a specific rental value exists on the overall housing market at the time of data collection; it provides no information about the underlying housing stock in the comparison area. Furthermore, calculating an arithmetic mean from the mean values of the building classes as a final step in determining a net rent (excluding utilities) relevant for basic income support does not meet the requirements of a mathematically and statistically sound concept.
The calculation of arithmetic values, especially in the case of detailed rent index tables, does not guarantee that the value shown actually reflects the main point of a rent in the basic segment (as expressly stated by: Federal Social Court, judgment of 19 October 2010, B 14 AS 50/10 R and the hearing report no. 68/11 on the judgment of 20 December 2011, file no. B 4 AS 19/11 R).
The Chamber cannot identify a coherent concept as the basis for the disputed benefit award that meets the high requirements of the jurisprudence of the Federal Social Court (BSG).
The values deemed appropriate by the defendant (one-person household: €260.00 including utilities, two-person household: €330.00 including utilities, three-person household: €390.00 including utilities) are based solely on observation and analysis of apartment advertisements and, moreover, have remained unchanged for years. Furthermore, the defendant understands his rent ceilings to include utilities, but it is unclear on what (data) basis the findings regarding the level of reasonable utilities in the comparison area were obtained.
However, the determination of the value of 390.00 euros considered appropriate for a three-person household is not based on a concept that arrives at a comparative value on the basis of a valid and representative data basis for a specific, definable comparison area and differentiated characteristics, taking into account the actual stock of rentable housing, using a recognized mathematical-statistical calculation method.
The defendant's figures are not based on an evaluation of the rent index; the defendant even expressly considers this method of calculation to be incorrect – as is known from other proceedings where judgments were based on the rent index (SG Aachen, judgment of 17.11.2010, file no. S 5 AS 910/10; judgment of 23.05.2011, file no. S 14 AS 1135/10; judgment of 11.07.2011, file no. S 14 AS 46/11).
Note by Willi 2: Social Court Landshut, judgment of 07.02.2012, – S 10 AS 294/11 –
The concept for determining accommodation costs in the Landshut district, newly developed and updated every six months from mid-2009 onwards, ultimately fails to meet the high standards set by the Federal Social Court (BSG), despite containing some sound approaches.
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3.3 – Social Court Aachen, judgment of 20 December 2011, – S 2 AS 277/11 –, appeal pending before the Higher Social Court of North Rhine-Westphalia – L 12 AS 213/12 –
New standard rates are constitutional
According to Section 20 Paragraph 1 of the German Social Code, Book II (SGB II), the standard allowance for securing subsistence includes, in particular, food, clothing, personal hygiene, household goods, household energy (excluding the portions attributable to heating and hot water), and personal needs of daily life. These personal needs of daily life include, to a reasonable extent, participation in social and cultural life within the community. The standard allowance is provided as a monthly lump sum. Recipients are responsible for deciding how to use the benefits provided to cover their standard allowance; in doing so, they must take into account the occurrence of irregular expenses.
The amount of the standard needs is determined according to the Act on the Determination of Standard Needs pursuant to Section 28 of the Twelfth Book of the Social Code of 24 March 2011 (Standard Needs Determination Act – RBEG) (see Federal Law Gazette I, p. 453 ff.).
The Chamber is of the opinion that the regulation of basic income support benefits for job seekers does not raise any constitutional concerns from a constitutional perspective – even according to the requirements of the Federal Constitutional Court in its judgment of February 9, 2010 (1 BvL 1/09, 1 BvL 3/09, 1 BvL 4/09). A referral pursuant to Article 100 Paragraph 1 of the Basic Law (GG) is therefore not warranted.
According to Article 1 Paragraph 1 of the Basic Law in conjunction with Article 20 Paragraph 1, every individual has a right to a dignified minimum standard of living. This fundamental right gives rise to a direct entitlement to benefits, which, however, only extends to those resources that are absolutely necessary to maintain a life of human dignity.
It guarantees the entire minimum standard of living through a uniform fundamental right guarantee that encompasses both the physical existence of the individual, i.e., food, clothing, household goods, accommodation, heating, hygiene and health, as well as ensuring the possibility of maintaining interpersonal relationships and a minimum level of participation in social, cultural and political life, because the human being as a person necessarily exists in social contexts (Federal Constitutional Court, loc. cit., para. 135).
It is the responsibility of the legislature to safeguard the entitlement to benefits arising from Article 1, Paragraph 1 of the Basic Law by means of parliamentary law. The Basic Law does not specify the amount of these benefits. This must be determined and specified by the legislature based on societal views on what is necessary for a life of human dignity, the specific life situation of the person in need, and the prevailing economic and technological conditions.
The social welfare state principle enshrined in Article 20, Paragraph 1 of the Basic Law obligates the legislature to address social realities in a timely and realistic manner with regard to guaranteeing a dignified minimum standard of living, which, for example, presents itself differently in a technologically advanced information society than in the past. The necessary assessments in this regard fall to the parliamentary legislature. It is its responsibility to define the legal requirements and consequences of the entitlement to benefits.
Whether he secures the subsistence minimum through monetary, material, or service benefits is fundamentally up to him. He also has discretion in determining the scope of benefits to secure the subsistence minimum.
This includes the assessment of the actual circumstances as well as the evaluative assessment of the necessary needs and also varies in scope: It is narrower insofar as the legislator specifies what is necessary to secure a person's physical existence, and broader where it concerns the nature and extent of the opportunity to participate in social life (BVerfG, ibid., para. 138).
To specify the claim, the legislator must logically measure all essential subsistence expenses in a transparent and appropriate procedure according to actual need, i.e. realistically (BVerfG, aaO, Rn. 139).
The Basic Law does not prescribe a specific method for the legislature; however, in order to ensure that the scope of statutory assistance is comprehensible in accordance with the importance of the fundamental right, and that it is subject to judicial review, the determination of the benefits must be justifiable on the basis of reliable figures and conclusive calculation methods (Federal Constitutional Court, loc. cit., para. 142).
The legislature's discretion in determining the subsistence minimum corresponds to a restrained constitutional review of ordinary statutory provisions. Substantive review is limited to whether the benefits are manifestly inadequate (Federal Constitutional Court, loc. cit., para. 140).
Based on these principles established by the Federal Constitutional Court, the Chamber has no concerns that the determination of standard needs according to the RBEG or the relevant provision of Section 20 Paragraph 2 Sentence 1 SGB II complies with the requirements of Article 1 Paragraph 1 GG in conjunction with Article 20 Paragraph 1 GG.
The court is convinced – contrary to the statement submitted by the plaintiff from Professor Dr. Münder – that the determination of standard benefit rates can be based on a procedure that complies with constitutional principles. The statistical model chosen by the legislature (see BT-Drs. 17/3404, pp. 50 ff.) – calculation of standard benefit rates using special analyses of the 2008 income and expenditure survey pursuant to Section 28 of the German Social Code, Book XII (see Section 1 of the Standard Benefit Rate Calculation Act) – is based on a suitable empirical data foundation.
The Income and Expenditure Survey (EVS) accurately reflects the consumption patterns of the population. Insofar as the plaintiff opposes the EVS regarding food costs by citing the scientific report on "Food Costs within the Framework of a Balanced Diet" published by the German Nutrition Society (DGE) in April 2008, it can be pointed out that this statement is not based on current data.
For the calculations presented in the statement, the German Nutrition Society (DGE) provided data on the food quantities underlying the food pyramid and linked them with the data from the 2003 Income and Expenditure Survey (EVS 2003) to determine the corresponding expenditures. In contrast, the basis for the calculation of standard benefit rates challenged here was the five-year-older EVS 2008.
Furthermore, the Chamber has no other constitutional concerns. This applies in particular to the definition of reference households according to Section 3 of the RBEG (Reference Household Remuneration Act) and the definition of lower income brackets according to Section 4 of the RBEG.
The legislator has provided a convincing justification for excluding households that live solely on subsistence benefits under the German Social Code, Book II (SGB II) and Book XII (SGB XII), while simultaneously including those entitled to benefits under the SGB II and SGB XII from the first euro of earned income as a reference household (see BT-Drs. 17/3404, p. 87 ff.).
He explained that he wanted to prevent the consumption patterns of recipients of subsistence benefits under the German Social Code, Book II (SGB II) and Book XII (SGB XII) from being used as the basis for determining their needs.
This meant that only those individuals and households living on income above the subsistence level remained in the reference group. Furthermore, a complete exclusion of benefit recipients under the German Social Code, Book II (SGB II) and Book XII (SGB XII), from the first euro of earned income is problematic because omitting these households would lead to a significant increase in the calculated subsistence level, and applying this method would considerably expand the circle of benefit recipients step by step in each future income and expenditure survey (Social Court Aachen, Judgment of July 20, 2011, Case No. S 5 AS 177/11).
Even insofar as the legislator in § 4 RBEG bases its calculations on the bottom 15% of single-person households stratified according to their net income within the meaning of § 2 No. 1 RBEG, although it previously considered the bottom 20%, while continuing to consider the bottom 20% of households in the reference group of family households within the meaning of § 2 No. 2 RBEG, this is not objectionable.
This approach is based on sound considerations. Specifically, in the case of single-person households, the proportion of households excluded beforehand is significantly higher than the proportion excluded in the special evaluation of the 2003 EVS (Income and Expenditure Survey) compared to the previous situation.
The average consumption of the respective reference group has continued to rise by approximately €70 per month. Furthermore, if the reference households comprised 20% of all single-person households stratified by net income, the upper limit of the income threshold would shift towards higher incomes (LSG Baden-Württemberg, judgment of June 10, 2011, case no. L 12 AS 1077/11).
Furthermore, significantly more single-person households were excluded than family households. Overall, the differentiation made is therefore justifiable (LSG Baden-Württemberg, loc. cit.; SG Aachen, loc. cit.).
The Chamber finds no evidence of an incorrect or incomplete determination of the necessary facts or the lack of a sufficiently transparent or comprehensible calculation method. The fact that the expenditures recorded in the individual sections of the EVS (Income and Expenditure Survey) were only included in the calculation of the standard benefit to a certain percentage does not contradict this. The Federal Constitutional Court has also, in principle, deemed this constitutionally unobjectionable (Federal Constitutional Court, loc. cit., para. 170 et seq.).
It is required that there be an objective reason for the deduction made and that the corresponding reductions in expenditure items are based on empirical evidence. The legislator has based the determination of the standard benefit rate on statistically valid data in the form of special analyses of the 2008 Income and Expenditure Survey (EVS) conducted by the Federal Statistical Office and additional investigations regarding specific consumer expenditures (food and beverages in restaurants, household electricity, transport and communication, alcoholic beverages and tobacco products, and mobile phone use).
As far as expenditures are concerned that serve participation in social life but are not intended to ensure physical survival, the legislator has considerable discretion.
Even if the decision regarding the deduction of individual consumer expenditures may be assessed differently from a political point of view, it is in any case not constitutionally contestable – provided it is based on objective considerations and empirical evidence (SG Aachen, aaO; LSG Baden-Württemberg, aaO).
By linking the adjustment of standard benefit rates to the development of prices and net wages (see Section 7 RBEG, Section 28a SGB XII) and by establishing a legal entitlement to benefits to ensure an unavoidable, ongoing, not merely one-off, special need due to atypical needs that do not correspond to the average needs reflected in the EVS in usual situations (see Section 21 Paragraph 6 SGB II), the legislator also remains within the framework of the requirements of the Federal Constitutional Court (BVerfG aaO, Rn. 183 ff.; 204 ff.).
Note by Willi 2: Different opinion: State Social Court of North Rhine-Westphalia, decision of 14.10.2011, -L 12 AS 1360/11 B -.
Approval of legal aid in standard rate lawsuits.
Due to the related concerns regarding the legality of the calculation of the standard benefit rate – see the constitutional assessment in the expert opinions prepared for the Hans Böckler Foundation by Irene Becker and Johannes Münder (Social Security Extra, September 2011, pp. 7 ff. and pp. 63 ff. respectively) – the proceedings should not be denied sufficient prospects of success from the outset.
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3.4 – Social Court Berlin, Judgment of 15 February 2012, – S 174 AS 28285/11 WA –
A student receiving benefits under the German Social Code Book II (SGB II) can request a desk from the job center to do her homework if no other workplace is available in her apartment.
Part 2 of the Tacheles legal news ticker for week 11/2012 can be found here.
