1. Decisions of the Federal Social Court of 14 March 2012 on basic income support for job seekers (SGB II)
1.1 – BSG, Judgment of 14 March 2012, – B 14 AS 18/11 R –
Short-time work compensation is only partially offset against Hartz IV benefits.
A prerequisite for an allowance under Section 30 of the German Social Code, Book II (SGB II), is income from employment. The allowance is intended to incentivize taking up or maintaining existing employment. Short-time work compensation serves the same purpose: despite a loss of work and the associated loss of earnings, the employment relationship should be maintained (see Sections 169 et seq. of the German Social Code, Book III (SGB III)).
The previous systematic classification of short-time work compensation as wage replacement benefits in the German Social Code, Book III (SGB III), does not lead to a different conclusion, as the decision of the Federal Social Court (BSG) of 13 May 2009 (B 4 AS 29/08 R – SozR 4-4200 § 11 No. 22) regarding insolvency compensation shows.
1.2 – BSG, Judgment of 14 March 2012, – B 14 AS 98/11 R –
The desire of those in need to benefit from the insurance allowance even if they do not actually receive any income in the form of maintenance payments finds no support in the overall legislative regulations.
The plaintiff did not receive any income within the meaning of Section 11 Paragraph 1 of the German Social Code, Book II (SGB II), because her ex-husband did not transfer the maintenance payments to her directly, but rather in full to the defendant job center. Therefore, no inflow of funds relevant for the consideration of income can be established for the plaintiff, meaning that the consideration of deductions pursuant to Section 11 Paragraph 2 of the SGB II in conjunction with the Regulation on Unemployment Benefit II (Alg II-V) is also precluded, and consequently, so is the consideration of the insurance allowance of €30 per month.
However, with regard to the transfer of the plaintiff's maintenance claim against her former husband to the job center pursuant to Section 33 Paragraph 1 of the German Social Code, Book II (SGB II), the following should be noted:
According to Section 33 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), a claim is only transferred to the Jobcenter to the extent that it would have been considered income in the needs assessment had it been paid on time. Deductions pursuant to Section 11 Paragraph 2 of the SGB II in conjunction with the Regulation on Unemployment Benefit II (Alg II-V) are therefore not included in the transfer of the claim, as they would not have been considered income had they been paid on time. Thus, the transfer of claims to the Jobcenter cannot result in any financial disadvantage for those entitled to benefits under the SGB II. The claim in the amount of the deductions (here, a €30 insurance allowance) remains with the benefit recipient, who can continue to assert it against their debtor. However, the Senate did not have to rule on the plaintiff's claims against her ex-husband, which is why the appeal was ultimately unsuccessful.
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – Bavarian State Social Court, Judgment of 02.02.2012, – L 11 AS 614/11 –
According to the German Social Code, Book II (SGB II), there is no entitlement for a benefit unit as such, which is not a legal entity; rather, the entitlement holder is each individual member of the benefit unit, even if this is not clearly expressed in the defendant's decisions (Federal Social Court [BSG], judgment of November 7, 2006 – B 7b AS 8/06 R – SozR 4-4200 § 22 No. 1 with further references; judgment of November 23, 2006 – B 11b AS 9/06 R – SozR 4-4300 § 428 No. 3; judgment of September 5, 2007 – B 11b AS 15/06 R – SozR 4-4200 § 11 No. 5; Valgolio in: Hauck/Noftz, SGB II, as of January 2012, § 7 para. 48).
This follows directly from the wording of Section 7 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II) ("Persons receive benefits") and Paragraph 2 Sentence 1 ("Persons also receive benefits"), as well as from the fact that otherwise the regulation in Section 9 Paragraph 2 Sentence 3 of the SGB II concerning the fiction of the need for assistance of all persons in a household receiving benefits (Section 7 Paragraph 2 Sentence 1 of the SGB II) would not have been systematically necessary (Federal Social Court, Judgment of November 7, 2006, loc. cit.).
Therefore, an individual member of the household cannot pursue the claims of all members of the household with their own lawsuit.
There is also no entitlement to higher benefits for a member of the household due to the special circumstances of another member's entitlement.
2.2 – Baden-Württemberg State Social Court, Judgment of 24 January 2012, – L 13 AS 3113/09 –
1. When assessing eligibility for assistance, it must also be examined, within the framework of a predictive decision, whether existing factual or legal obstacles to realization will cease to exist within a period which generally corresponds to the six-month approval period, in order to take into account co-ownership shares in real estate assets.
2. An actual impediment to realization cannot be assumed if the person in need of assistance is not interested in dissolving the co-ownership and therefore does not seriously assert a corresponding claim. Such a situation, which might be based on a hoped-for increase in the property's value or on familial consideration, does not render the claim unenforceable (following the Federal Social Court's ruling of January 27, 2009 – B 14 AS 42/07 R – SozR 4-4200 § 12 No. 12).
Note by Willi 2: North Rhine-Westphalia State Social Court, judgment of 30 June 2011, – L 7 AS 79/08 –
There is currently no supreme court ruling on the question of whether the exclusive use of individual rooms constitutes a usage agreement that restricts the use of the corresponding real part of the property and building by the co-owners.
sozialrechtsexperte.blogspot.de
2.3 – Baden-Württemberg State Social Court, Judgment of 24 January 2012, – L 13 AS 2954/11 –
1. Partial payouts from life insurance policies not only reduce the market value of the insurance in the form of the surrender value, but also the actual value of the asset being valued (intrinsic value).
2. When examining whether the realization of a life insurance policy is obviously uneconomical (Section 12 Paragraph 3 No. 6 Alternative 1 SGB II), partial payments must be taken into account and deducted from the paid-in contributions within the framework of the comparison to be made between paid-in contributions and surrender value.
sozialgerichtsbarkeit.de
Comment by Willi 2: BSG, Judgment of 25.08.2011, – B 8 SO 19/10 R –
A hardship case under Section 90 Paragraph 3 of the German Social Code, Book XII (SGB XII) is to be denied if the surrender value of the capital life insurance policy falls short of the sum of the premiums paid by only about 11%.
(sozialrechtsexperte.blogspot.de
2.4 – Baden-Württemberg State Social Court, Judgment of 24 January 2012, – L 13 AS 1671/11 –
1) Section 159 paragraph 1 no. 2 of the Social Court Act (SGG) in the version applicable from 1 January 2012 requires a causal connection between the significant procedural defect justifying the reversal and remand and the necessity of extensive and costly taking of evidence.
2) Contrary to the wording of the provision, the required taking of evidence does not have to be based on the procedural defect itself, but rather must have been omitted because of the procedural defect; it must be examined whether extensive and costly taking of evidence would have been possible in the first instance without the procedural error (see also Musielak, Commentary on the Code of Civil Procedure, 6th edition, § 538 Code of Civil Procedure, marginal note 15).
2.5 – Schleswig-Holstein State Social Court, Judgment of 16 December 2011, - L 3 AS 12/10 -, Appeal allowed
In order to meet the requirement of specificity, a cancellation and reimbursement notice must be issued to the person who is to be obligated to make the reimbursement.
Both the revocation based on Section 48 of the German Social Code, Book X (SGB X) and the withdrawal of the grant notice based on Section 45 of the German Social Code, Book X (SGB X), as well as the recovery of basic income support benefits provided pursuant to Section 50 Paragraph 1 of the German Social Code, Book X (SGB X), could only be declared against the respective benefit recipient and thus only against each individual person in need of assistance within a household in the sense of Section 7 Paragraph 3 of the German Social Code, Book II (SGB II).
The repayment of benefits wrongfully granted to members of a household receiving social assistance is a mirror image of the benefit relationship. Thus, the repayment relationship corresponds to the individual benefit relationship under the German Social Code, Book II (SGB II), according to which not the household as a whole, but the individual members of the household are entitled to the benefits. There is no joint and several liability among the members of the household, and the presumption rule of Section 38 of the SGB II applies only to benefit payments, not to the revocation of benefit award notices. In particular, the representative of the household receiving social assistance is not obligated to reimburse the other members of the household receiving benefits unlawfully. Therefore, the benefit provider must specifically examine, in the repayment process, which members of the household received benefits wrongfully, in what amounts, and who received such benefits unlawfully.
The grant notice can only be revoked with respect to this member, and a revocation and reimbursement notice can only be issued to that member. The Senate adheres to this jurisprudence. It corresponds to the prevailing jurisprudence of the state social courts (see Baden-Württemberg State Social Court, judgment of October 18, 2007, L 7 SO 2899/06; North Rhine-Westphalia State Social Court, decision of September 13, 2007, L 20 B 152/07 AS ER; North Rhine-Westphalia State Social Court, judgment of December 18, 2006, L 20 SO 20/06; Berlin-Brandenburg State Social Court, judgment of May 7, 2009, L 28 AS 1354/08; Hamburg State Social Court, judgment of September 15, 2011, L 8 AS 3/09)
In isolated cases, case law also permits a "validity-preserving reduction" of a non-individualized revocation and reimbursement order. If a representative of a household receiving benefits demands reimbursement of all benefits wrongfully paid to all members of the household, this may be materially unlawful with regard to the excess amount, but it is deemed to satisfy the requirement of legal certainty under Section 33 of the German Social Code, Book X (see, for example, Schleswig-Holstein Higher Social Court, 6th Senate, judgment of August 13, 2008, L 6 AS 16/07; Lower Saxony-Bremen Higher Social Court, judgment of May 5, 2011, L 15 AS 64/09).
sozialgerichtsbarkeit.de
Note by Willi 2: Hamburg State Social Court, Judgment of October 20, 2011, – L 5 AS 87/08 –
A cancellation and repayment order is unlawful if the recipient's wife could not have known that her husband had also applied for and received benefits on her behalf.
sozialrechtsexperte.blogspot.de
2.6 – Lower Saxony-Bremen State Social Court, decision of 29 November 2011, – L 7 AS 1442/10 –
The person in need of assistance must clarify with their health insurance company whether the costs of medication will be covered as part of medical treatment.
The remaining healthcare costs, including those for medically necessary but not covered by the statutory health insurance's obligation to provide benefits, which must be paid by those in need of assistance under the German Social Code, Book II (SGB II), under the principle of personal responsibility of the insured under the statutory health insurance system, are included in the standard benefit and therefore do not generally trigger a need under Section 73 of the German Social Code, Book XII (SGB XII).
Travel expenses not covered by the statutory benefits provided by the health insurance fund must be paid by the insured persons themselves, even those receiving assistance under the German Social Code, Book II (SGB II), in accordance with the principle of personal responsibility.
The standard benefit covers both healthcare and transportation needs. To the extent that the plaintiff argues this amount is insufficient, he is challenging the level of the standard benefit itself. With regard to the period prior to January 1, 2011, the Federal Constitutional Court (judgment of February 9, 2010 – 1 Bvl 1/09, 1 Bvl 3/09, 1 Bvl 4/09 – published in juris, paragraphs 210 et seq.) clarified that a retroactive increase of the standard benefit is not permissible.
Note by Willi 2: BSG, Judgment of 26.5.2011, - B 14 AS 146/10 R –
The job center does not reimburse over-the-counter medications. In case of doubt, the health insurance company must be sued.
sozialrechtsexperte.blogspot.de
2.7 – North Rhine-Westphalia State Social Court, Judgment of 19 January 2012, – L 6 AS 299/11 –
The savings bank certificate with a balance of 10,000.00 euros is considered assets within the meaning of Section 12 Paragraph 1 of the German Social Code, Book II (SGB II), which exceeded the allowances to which the respective applications were entitled (Section 12 Paragraph 2 Sentence 1 No. 1 and No. 4 SGB II) and accordingly had to be used primarily to secure her livelihood in accordance with Section 9 Paragraph 1 No. 2 SGB II.
A balance sheet of assets is not created by netting assets and liabilities. (Federal Social Court [BSG] judgment of April 15, 2008 – B 14/7b AS 52/06 R, juris para. 39; Löns, in: Löns/Herold-Tews, SGB II, 3rd ed. 2011, § 12 para. 6; Hengelhaupt, in: Hauck/Noftz, § 12 SGB II para. 33; Mecke, in: Eicher/Spellbrink, SGB II, 2nd ed. 2008, § 12 para. 14). This also follows from the principle of subsidiarity of state welfare, which must not be burdened with debt repayment for individuals at the expense of all taxpayers (see also Federal Social Court [BSG] judgment of April 15, 2008, loc. cit.). Therefore, assets only include active assets that can also be used to secure one's livelihood (BSG judgment of 15.04.2008 – B 14/7b AS 52/06 Rn 39; Löns in Löns/Herold/Tews SGB II 3rd ed. § 12 Rn 6).
Unused assets that reduce the claim must be taken into account until they are exhausted (see, for example, Federal Social Court decision of July 30, 2008 – B 14 AS 14/08 B –, juris para. 4, 5, with further references; Löns in Löns/Herold-Tews, aa0, with further references). The relevant assets are those that actually exist, not fictitious ones (Brühl, in: LPK-SGB II, 3rd edition 2009, § 12 para. 5). This means that any assets exceeding the allowance and actually existing are assessed at their full respective value throughout the entire claim period and are therefore expressly held against the plaintiff month after month and also for new claim periods if they have not been liquidated in the meantime, i.e., if they still exist as assets in the respective benefit period (see Federal Social Court decision of 30 July 2008 – B 14 AS 14/08 B –, juris para. 4, 5, with further references; Berlit, jurisPR-SozR 7/2009 of 2 April 2009, note 1; see also Federal Administrative Court judgment of 19 December 1997, loc. cit.; similarly, Higher Social Court of Baden-Württemberg judgment of 22 July 2011 – L 12 AS 4994/10, juris para. 33, with further references).
This applies regardless of whether it is sufficient to cover the needs for the entire period of need (Senate judgment of 01.06.2010 – L 6 AS 15/09 juris Rn. 43; similarly LSG Saxony judgment of 13.03.2008 – L 2 AS 143/07-, juris, cf. also regarding the BSHG: BVerwG judgment of 19.12.1997 – 5 C 7/69 – juris Rn. 33).
Note by Willi 2: Baden-Württemberg State Social Court judgment of 22 July 2011, – L 12 AS 4994/10 –
Hartz IV recipients must repay their entire unemployment benefit (ALG II) if they have a concealed building society savings contract.
sozialrechtsexperte.blogspot.de
2.8 – North Rhine-Westphalia State Social Court, decision of 06.02.2012, – L 19 AS 2308/11 B –
A hardship within the meaning of Section 26 Paragraph 4 of the German Social Code, Book II (SGB II) as amended, exists only if the hardship suffered by a recipient of unemployment benefit II due to the imposition of the additional contribution differs from what affects everyone who is confronted with the imposition of an additional contribution.
A hardship can only be a special one if it does not represent the general hardship of the additional contribution (cf. LSG NRW decision of 25.02.2011 – L 19 AS 2146/10 B – with further references).
According to the legislator's intent, recipients of unemployment benefit II, like other insured persons, are generally expected to change their health insurance provider if their current provider introduces a supplementary contribution for the first time or increases it, and they do not wish to bear this cost themselves (Bundestag printed matter 16/4247, p. 60). Pursuant to Section 242 Paragraph 1 of the Fifth Book of the German Social Code (SGB V) as amended until December 31, 2010 (introduced by Article 1 No. 161 of the Law of March 26, 2007, Federal Law Gazette I, p. 378, effective January 1, 2009), the health insurance provider must stipulate in its statutes that a supplementary contribution will be levied on its members if further conditions are met. According to sentence 3, this supplementary contribution may not exceed eight euros per month without an income assessment. The legislator thus assumed that every insured person – regardless of their income – can reasonably be expected to pay a supplementary contribution of eight euros per month.
If an insured person considers paying the supplementary contribution unreasonable, they have the option of terminating their membership in the relevant health insurance fund pursuant to Section 175 Paragraph 4 Sentence 5 of the German Social Code, Book V (SGB V), and switching to another health insurance fund that does not levy a supplementary contribution. The health insurance fund chosen by the insured person has no right to refuse the transfer (Section 175 Paragraph 1 Sentence 2 SGB V). The legislator has generally assumed that switching health insurance funds is reasonable for every insured person. This also corresponds to the purpose of Sections 175 and 242 SGB V, which are intended to encourage health insurance funds to operate economically in order to prevent their members from terminating their membership and switching to other funds. Conversely, insured persons should be encouraged to switch funds if a supplementary contribution is levied. According to the legislative intent, switching funds is desirable and therefore not considered a hardship.
In addition, the Senate points out that, as of January 1, 2011, the health insurance fund-specific supplementary contribution pursuant to Section 242 of the German Social Code, Book V (SGB V) for a recipient of benefits to secure subsistence under the German Social Code, Book II (SGB II) (Section 242, Paragraph 4, Sentence 1, SGB V) is not levied from a recipient of these benefits, but rather that such a supplementary contribution is raised from the funds of the liquidity reserve of the Health Fund pursuant to Section 271, Paragraph 2, SGB V (Section 251, Paragraph 6, Sentence 2, SGB V as amended from January 1, 2011, Article 1, No. 21 of the Law of December 22, 2010, Federal Law Gazette I, p. 2309).
2.9 – North Rhine-Westphalia State Social Court, decision of 03.02.2012, – L 19 AS 2233/11 B ER –
The assumption of rent arrears for an unsuitable apartment within the meaning of Section 22 Paragraph 1 of the German Social Code, Book II (SGB II) is generally not justified according to Section 22 Paragraph 8 of the German Social Code, Book II (SGB II).
In this respect, the Senate concurs with the jurisprudence of the Federal Social Court on Section 22 Paragraph 5 of the German Social Code, Book II (SGB II) as amended, the wording of which is identical to the currently applicable Section 22 Paragraph 8 of the German Social Code, Book II (SGB II), which came into force on January 1, 2011.
According to its wording, this regulation only protects a dwelling if its preservation is justified by the assumption of debts. In principle, for debts to be assumed, the ongoing costs for accommodation must be abstractly reasonable within the meaning of Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II).
The long-term preservation of an apartment, which is the aim of assuming the debts, only appears justified if the (future) ongoing costs correspond to what the basic income support provider is required to cover within the comparison area to be referenced pursuant to Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II). (Judgment of June 17, 2010 – B 14 AS 58/09 R = Rn 26).
Note by Willi2: North Rhine-Westphalia State Social Court decision of 19.08.2011, - L 7 AS 657/11 B –
Granting legal aid is necessary because it needs clarification whether the assumption of costs for rent arrears is excluded even in the case of a slightly more expensive apartment, if, as here, the rent was paid in full for a longer period following the arrears and it is therefore doubtful whether further rent arrears and another eviction are to be expected in the future.
(sociallawexpert.blogspot.de)
2.10 – North Rhine-Westphalia State Social Court, decisions of 03.02.2012, – L 19 AS 115/12 B ER – and – L 19 AS 116/12 B –
The assumption of rent arrears for an unsuitable apartment within the meaning of Section 22 Paragraph 1 of the German Social Code, Book II (SGB II) is generally not justified according to Section 22 Paragraph 8 of the German Social Code, Book II (SGB II).
In this respect, the Senate concurs with the jurisprudence of the Federal Social Court on Section 22 Paragraph 5 of the German Social Code, Book II (SGB II) as amended, the wording of which is identical to the currently applicable Section 22 Paragraph 8 of the German Social Code, Book II (SGB II), which came into force on January 1, 2011.
According to its wording, this provision protects a dwelling only if its preservation is justified by the assumption of debts. In principle, for debts to be assumed, the ongoing costs of accommodation must be abstractly reasonable within the meaning of Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II). The long-term preservation of a dwelling, which is the purpose of assuming the debts, only appears justified if the (future) ongoing costs correspond to what the basic income support provider is required to cover within the relevant comparison area pursuant to Section 22 Paragraph 1 Sentence 1 of the SGB II. (Judgment of June 17, 2010 – B 14 AS 58/09 R = Rn 26).
Note by Willi 2: Social Court Stade, decision of 30.08.2011, – S 28 AS 489/11 ER –
Whether debts within the meaning of Section 22 Paragraph 8 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 must be assessed based on the purpose of benefits under the SGB II, which is to cover an actual need that has arisen and has not yet been covered by the SGB II provider.
(sozialrechtsexperte.blogspot.de
2.11 – North Rhine-Westphalia State Social Court, Judgment of 01.02.2012, – L 12 AS 1353/10 -, Appeal is granted
The severance payment, which is received as a one-off payment after application, is considered income within the meaning of Section 11 Paragraph 1 of the German Social Code, Book II (SGB II), according to the accrual principle, and not assets within the meaning of Section 12 of the SGB II. If available funds are used up prematurely, this use is not to be taken into account, just as outstanding debts at the time of receipt of the income cannot be deducted from the one-off payment
The severance payment, which is received as a one-time payment after application, is considered income within the meaning of Section 11 Paragraph 1 of the German Social Code, Book II (SGB II), according to the "inflow principle," and not assets within the meaning of Section 12 of the SGB II (see Federal Social Court judgment of March 3, 2009 – B 4 AS 47/08 R, paragraphs 15 et seq. – BSGE 102, 295).
This legal allocation applies not only in the month or benefit period in which the income was received, but also after a new application in the subsequent benefit period. The legal effect of the "inflow principle" does not end with the month of receipt, but extends over the entire period over which the income is allocated, the so-called "distribution period" (Federal Social Court judgment of October 28, 2009 – B 14 AS 64/08 R para. 25; judgment of September 30, 2008 – B 4 AS 29/07 R para. 21 – BSGE 101, 291; judgment of September 30, 2008 – B 4 AS 57/07 R para. 28 – SozR 4-4200 § 11 No. 16). Accordingly, the income does not become an asset even if a new application is submitted (BSG judgment of 30.09.2008 – B 4 AS 29/07 R Rn 26, 29 – BSGE 101, 291), but remains income in the subsequent benefit period (cf. BSG ibid. Rn 25; LPK-SGB II/Geiger, 4th ed. 2011, § 11 Rn 40).
If a one-time payment that must be considered income is received after an application has been submitted, the mere fact of submitting a new application does not change the "state" of the payment. It does not, as it were, "mutate" into assets simply by virtue of the new application (Federal Social Court, loc. cit., para. 29). According to the Federal Social Court's jurisprudence, a changed assessment, i.e., a (subsequent) valuation as assets, can only occur if the need for assistance ended for at least one month before the (new) application (Federal Social Court, loc. cit., para. 31).
One-off income is to be distributed over a reasonable period and taken into account monthly with a corresponding partial amount, in accordance with Section 13 of the German Social Code, Book II (SGB II), in conjunction with Sections 4 and 2 Paragraph 4 of the German Regulation on Unemployment Benefit II (Alg II-V) in the version applicable from January 1, 2009, to March 31, 2011 (Federal Law Gazette I, p. 2780) – hereinafter referred to as "aF" (now the revised version in Section 11 Paragraph 3 SGB II), unless a different arrangement is appropriate in a specific case. There are no constitutional concerns regarding the enabling provision of Section 13 SGB II (Federal Social Court judgment of July 30, 2008 – B 14 AS 26/07 R, paragraphs 29 et seq. – SozR 4-4200 § 11 No. 17).
Neither the expiration of the benefit period nor the submission of a new application precludes the distribution period of just under a year chosen by the defendant. The "distribution period" within the meaning of Section 2 Paragraph 4 of the former Regulation on Unemployment Benefit II (Alg II-V aF) can extend beyond the end of the benefit period and/or a new application (cf. regarding the predecessor provision of Section 2 Paragraph 3 of the former Regulation on Unemployment Benefit II, Federal Social Court judgment of September 30, 2008 – B 4 AS 29/07 R, paragraph 27 – BSGE 101, 291). Nothing to the contrary arises from the wording, the legislative history, or the purpose of the regulation.
Section 2 Paragraph 4 of the former version of the German Social Code, Book II (SGB II-V), does not, according to its wording, impose a time limit on the distribution of income (cf. regarding the predecessor regulation of Section 2 Paragraph 3 of the SGB II-V, Federal Social Court, loc. cit., marginal note 30; cf. also Federal Social Court judgment of September 27, 2011 – B 4 AS 180/10 R, marginal note 32: distribution over 12 months is appropriate for an income intended for one year).
The legislative history of the provision also does not reveal any limitation. The original version of the ALG II-V (then § 2 para. 3 ALG II-V) of October 20, 2004 (Federal Law Gazette I, 2622) did not yet provide for the possibility of distributing one-off payments over several calendar months. This could lead to the one-off payments exceeding the needs in the month of receipt, thus eliminating the need for assistance and, consequently, the obligation to have health and long-term care insurance (cf. § 5 para. 1 no. 2a SGB V, § 20 para. 1 sentence 2 no. 2a SGB XI), with the consequence that the previously eligible recipient might have to take out voluntary health insurance.
This consequence and the associated increased administrative burden led the legislator to stipulate, as a rule (in cases where compulsory health insurance ceases), that the one-off income be distributed over "appropriate periods" (Federal Social Court judgment of September 30, 2008 – B 4 AS 57/07 R, para. 29 with further references – SozR 4-4200 § 11 No. 16). However, if the primary aim of the amendment was to minimize administrative costs, it was apparently intended to extend the period of consideration (cf. Federal Social Court judgment of October 28, 2009 – B 14 AS 64/08 R, para. 29).
This would be contradicted by an interpretation limiting the distribution period to the "first" approval period or due to a renewed application. The repeal of the provision in Section 2 Paragraph 4 of the former Regulation on Unemployment Benefit II (Alg II-V aF) and its transfer to the amended provision in Section 11 Paragraph 3 of the German Social Code, Book II (SGB II), with a distribution period now fixed at 6 months, does not allow for the conclusion that a limitation by the approval period or a limitation to a distribution period of 6 months based on the standard benefit period would previously have been considered the only appropriate measure within the meaning of Section 2 Paragraph 4 of the former Regulation on Unemployment Benefit II (Alg II-V aF) (see also Federal Social Court judgment of September 27, 2011 – B 4 AS 180/10 R, paragraph 32).
First of all, the now fixed distribution rule of Section 11 Paragraph 3 of the German Social Code, Book II (SGB II) (see Löns in Löns/Herold-Tews, SGB II, 3rd edition 2011, Section 11, marginal note 21) shows that a one-off income received during the current benefit period can be distributed beyond the end of the benefit period (LPK-SGB II/Geiger, 4th edition 2011, Section 11, marginal note 40), and if it exceeds the needs of one month, it must generally be distributed.
On the other hand, the new regulation would not have been necessary if a limitation of the distribution period to 6 months could already have been inferred from the Alg II-V aF, especially given that the legislator did not describe the new regulation as a "clarification".
The purpose of the crediting provision in Section 2 Paragraph 4 of the former Regulation on Unemployment Benefit II (Alg II-V aF) does not require a fundamental time limit on the distribution period. Rather, the interpretation of the term "distribution over a reasonable period" chosen in Section 2 Paragraph 4 of the former Regulation on Unemployment Benefit II (Alg II-V aF) must be guided by the need for assistance stipulated in Section 7 in conjunction with Section 9 of the German Social Code, Book II (SGB II), and by the obligation of benefit recipients to help themselves as contained in Section 2 of the SGB II.
This means that benefit recipients who, upon receiving a large one-off payment, would actually have to cease receiving benefits (at least for a certain period), as is the case with the plaintiffs here, must have the benefits received pro rata credited to their benefits in the following months until the (calculated) full consumption is reached.
If available funds are used up prematurely, this use is not to be taken into account, just as outstanding debts cannot be deducted from the one-off payment at the moment the income is received (cf. in this regard the judgment of the adjudicating Senate of 11.01.2012 – L 12 AS 1978/10 with further references to case law and literature).
A benefit recipient who disregards their duty to help themselves and the resulting obligation to use any income primarily to secure the livelihood of the members of the household, and who uses income for other purposes contrary to the requirement to use it first for living expenses, cannot obtain higher benefits by invoking such misconduct than a benefit recipient who fulfills their obligations arising from the German Social Code, Book II (SGB II).
The fact that the beneficiary has used the amount for their own purposes outside the necessary securing of their livelihood does not preclude the consideration of a one-off payment as reducing the need for benefits (cf. for the use to repay debts BSG judgment of 30.09.2008 – B 4 AS 29/07 R Rn 19 – BSGE 101, 291; BSG judgment of 30.07.2008 – B 14 AS 26/07 R Rn 25 with further references to the case law of the Federal Administrative Court – SozR 4-4200 § 11 No. 17).
If the person in need of assistance spends income received prematurely, the income must nevertheless be credited accordingly until the end of the period deemed appropriate under Section 2 Paragraph 4 of the former Regulation on Unemployment Benefit II (Alg II-V aF), with the respective partial amounts being taken into account (see judgment of the deciding Senate of 11 January 2012 – L 12 AS 1978/10; North Rhine-Westphalia Higher Social Court judgment of 25 October 2010 – L 6 AS 171/10; North Rhine-Westphalia Higher Social Court decision of 14 June 2010 – L 6 AS 432/10 B ER and L 6 AS 494/10 B ER; similarly North Rhine-Westphalia Higher Social Court judgment of 2 April 2009 – L 9 AS 58/07; Bavarian Higher Social Court judgment of 13 April 2007 – L 7 AS 309/06; Mecke in Eicher/Spellbrink, SGB II, 2nd edition). 2008, § 11 Rn 66; contra Brühl in LPK-SGB II, 3rd ed. 2009, § 11 Rn 16; VG Bremen judgment of 15.05.2008 – S 3 V 1349/08; presumably also LSG Berlin-Brandenburg decision of 27.11.2008 – L 14 B 1818/08 AS ER; Geiger, info also 2009, 20, 23).
The fact that income which is not available at any time during this (subsequent) benefit period is taken into account when assessing the need for assistance of the beneficiary at the time of application or at the beginning of the (subsequent) benefit period does not preclude the crediting of one-off income in the benefit period following its receipt, even if it has been previously spent, does not preclude this.
It cannot be argued against the crediting that “fictitious income” may not be credited according to Article 1 of the Basic Law and the basic principles of the SGB II (see LPK-SGB II/Geiger, 4th ed. 2011, § 11 Rn 42), nor can the crediting be opposed by the fact that – if it were a first-time application – benefits would have to be granted.
Whether the imputation of fictitious income under the German Social Code, Book II (SGB II) is fundamentally inadmissible (as argued, for example, by Löns in Löns/Herold-Tews, 3rd ed. 2011, § 11 para. 15; LPK-SGB II/Geiger, ibid.) can remain undecided, since the imputation of received one-off income does not involve fictitious income, but rather income actually earned. When the one-off income is imputed, the benefit recipient is not treated in subsequent months as if they had merely earned income or could earn it. Instead, the entire imputed amount was actually available to them as "readily available funds" (cf. Löns in Löns/Herold-Tews, SGB II, 4th ed. 2011, § 11 para. 13) at the moment of receipt.
This actual income is not considered as a single lump sum at the moment of receipt, but rather (to the benefit of the plaintiffs, who would otherwise lose their entitlement to benefits) is treated as if it had been received over several consecutive months. Unlike fictitious income, i.e., income that is not actually received and therefore never "available," the benefit recipient is not treated as if they "had" received something, but rather as if they were distributing the actual income over several months in order to fulfill their obligations under the German Social Code, Book II (SGB II), to secure their livelihood.
The fact that the applicant would be entitled to benefits in the (subsequent) approval period if this were an initial application with a (new) assessment of need does not preclude the crediting of benefits. This is because the situation of a benefit recipient applying for the first time differs significantly from that of a subsequent applicant who has already received benefits.
By applying for benefits pursuant to Section 37 of the German Social Code, Book II (SGB II), a person in need of assistance enters the SGB II system and is therefore subject to its rules, beginning with the commencement of benefits. Accordingly, as a benefit recipient, they are bound by the obligations to help themselves, which arise from the principle of demanding self-help laid down in Section 2 of the SGB II (Section 2, Paragraph 2 SGB II) and the aforementioned principle of subsidiarity of state welfare. If they violate these obligations, they cannot invoke this to their advantage and demand (further) benefits – as a supplement.
Those in need of assistance who, due to a lack of application, are outside the system of the German Social Code, Book II (SGB II), are not subject to the obligations of this benefit system (cf. Federal Social Court judgment of 17 December 2009 – B 4 AS 19/09 R Rn 17 – BSGE 105, 188).
However, even against the latter, claims for compensation can be made under limited conditions if he has intentionally or through gross negligence caused the need for assistance (§ 34 SGB II).
The fact that, after a one-off payment has been used up, the recipient(s) no longer have sufficient funds to cover their living expenses does not preclude its being taken into account. If an applicant cannot be considered in need of assistance within the meaning of Sections 7 and 9 of the German Social Code, Book II (SGB II), according to the legal provisions of Section 19 SGB II in conjunction with Sections 11 and 13 SGB II in conjunction with the former version of the German Regulation on Unemployment Benefit II (Alg II-V aF), but nevertheless lacks the necessary means of subsistence, the person who is effectively in need of assistance is not left without protection under the concept of the SGB II.
Rather, there is the possibility of obtaining a supplementary loan pursuant to Section 24 Paragraph 1 of the German Social Code, Book II (SGB II) (in the version of the Act on the Determination of Standard Needs and the Amendment of the SGB II and SGB XII of March 24, 2011, Federal Law Gazette I, 453 – hereinafter referred to as nF or, in the period in dispute here, Section 23 Paragraph 1 SGB II aF) (see judgment of the deciding Senate of January 11, 2012 – L 12 AS 1978/10 and decision of February 3, 2010 – L 12 AS 91/10 B; similarly, judgment of the Higher Social Court of North Rhine-Westphalia of October 25, 2010 – L 6 AS 171/10 with further references).
The legal treatment of the consumption of income subject to consideration, which is at issue here, corresponds to the legal situation regarding the premature consumption of standard benefits already paid. This is because even a recipient of assistance who cannot make ends meet with the basic income support benefits granted in a given month cannot demand further benefits as a supplement simply because they are in need again. Rather, their only recourse is to obtain (further) benefits in kind or cash as a loan in cases of unavoidable need.
The law explicitly provides for the possibility of granting (further) (loan) benefits in full or in part (only) as benefits in kind to those in need who prove to be unsuitable for covering their needs with the standard benefit, e.g. in cases of uneconomical behavior (§ 24 para. 2 SGB II nF or § 23 para. 2 SGB II aF).
The provision of Section 34 of the German Social Code, Book II (SGB II) does not lead to a different result.
In particular, this does not give rise to a claim to receive full basic income support benefits subject to a reimbursement claim under Section 34 of the German Social Code, Book II (SGB II), if a one-off income is prematurely spent. The legal basis for granting basic income support benefits as a subsidy is solely Section 19 of the SGB II, and for granting these benefits as a loan, Section 24 Paragraph 1 of the SGB II (new version) or Section 23 Paragraph 1 of the SGB II (old version). Section 34 of the SGB II only establishes a reimbursement claim by the benefit provider against the recipient of assistance, but not conversely, a claim by the recipient of assistance to the provision of benefits.
Willi2's comment: A different view was held by the Social Court of Berlin in its judgment of 21.09.2011, – S 55 AS 39346/09 –
The enabling provision of Section 13 Paragraph 1 Number 1 of the German Social Code, Book II (SGB II) does not cover the regulation of Section 2 Paragraph 4 Sentence 3 of the German Social Code, Book II (AlgIIV) (version valid until March 31, 2011), because the distributed crediting of the one-off payment during the distribution period following the month of receipt impermissibly creates the illusion of income. This is not merely a calculation rule.
One-off payments (received before April 1, 2011) that terminate entitlement to benefits in the month they are received are to be treated as assets upon commencement of a new entitlement to basic income support.
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2.12 – North Rhine-Westphalia State Social Court, decision of 24.01.2012, – L 12 AS 1773/11 B ER –
In proceedings aimed at granting ongoing benefits for accommodation and heating, grounds for an order are regularly only given when there is a concrete threat of homelessness.
In proceedings aimed at granting ongoing benefits for accommodation and heating, grounds for an injunction are regularly only present when there is a concrete threat of homelessness (established case law of the deciding Senate, cf. e.g. decision of 25.11.2011 – L 12 AS 1831/11 B ER; similarly e.g. LSG NRW, decision of 02.05.2011 – L 6 AS 2215/10 B; decision of 27.11.2008 – L 9 B 183/08 AS ER).
This is generally not the case simply because a landlord's termination of the lease due to rent arrears is seriously expected, has already occurred, or has threatened eviction proceedings. While these circumstances alone justify the assumption that homelessness might be imminent in the near or distant future, they do not usually mean that the benefit recipient must expect concrete, i.e., actual and serious (short-term) homelessness.
Such concrete homelessness regularly threatens when the landlord has filed an eviction lawsuit (established case law of the adjudicating Senate, cf. e.g. decision of 21.12.2011 – L 12 AS 1469/11 B ER with further references; furthermore, LSG Berlin-Brandenburg decision of 25.11.2010 – L 5 AS 2025/10 B ER: only upon threat of eviction), because, according to the statutory provisions of civil procedure law, the tenant of an apartment can only be (forcibly) evicted from the apartment once the landlord has obtained an enforceable eviction order against him (§ 704 Code of Civil Procedure).
In the case of (mere) notice of termination or threat of legal action, it is generally not sufficiently clear whether the landlord would actually resort to eviction as a last resort, or whether the notice of termination or threat of legal action is not rather (initially) intended to compel the tenant to fulfill their rental obligations with the utmost urgency. Filing an eviction lawsuit, on the other hand, indicates – particularly in view of the advance costs that the landlord typically has to pay upfront – their serious intention to actually remove the tenant from the apartment, or have them removed, by force, due to rent arrears.
If the landlord of a benefit recipient files a lawsuit against them – rightfully – for eviction from the living space pursuant to Sections 543 Paragraph 1, Paragraph 2 Sentence 1 No. 3, 569 Paragraph 3 of the German Civil Code (BGB), the benefit recipient can no longer prevent the eviction order if they fail to either settle the arrears themselves pursuant to Section 569 Paragraph 3 No. 2 BGB or to obtain an obligation from the benefit provider to settle them. Unlike before the lawsuit is filed, once the lawsuit is pending, no further action by the landlord is required to obtain an eviction order and thus the right to directly cause the tenant's homelessness (see also the decision of the Higher Social Court of North Rhine-Westphalia of September 16, 2010 – L 6 AS 949/10 B ER).
Accordingly, from this point onwards, the beneficiary faces a serious and concrete imminent threat of losing the rented property if the landlord is not satisfied within 2 months of the commencement of the eviction action (§ 569 para. 3 no. 2 BGB).
This impending consequence is also reflected in the provision of Section 22 Paragraph 9 of the German Social Code, Book II (SGB II), as amended by the Act on the Determination of Standard Needs and the Amendment of the SGB II and SGB XII of March 24, 2011, which for this reason stipulates an obligation for the local courts to notify the benefit providers of corresponding pending lawsuits. If the benefit provider refuses to pay the landlord, eviction would be possible without an expedited court ruling on the question of liability, resulting in disadvantages for the benefit recipient that could no longer be remedied in the main proceedings.
Until such an eviction lawsuit is filed, it is reasonable for the benefit recipient, for the reasons stated above, to first pursue a main action. The fact that the benefit recipient must bear the costs of the civil eviction proceedings brought against them according to the principle of causation, even if the benefit provider is ordered to provisionally satisfy the landlord in expedited social court proceedings, does not create any particular urgency before the commencement of an eviction lawsuit. These costs are not disadvantages that cannot be remedied in the main proceedings. If the benefit provider has unlawfully refused to pay the outstanding rent, it must be ordered, upon application by the benefit recipient, to pay this rent in the main proceedings and, furthermore, to cover the additional costs incurred by the benefit recipient as a result of the refusal to pay, i.e., specifically the costs of the civil eviction proceedings.
This corresponds to the obligation, which applies in social security law as an expression of a general legal principle, to reimburse the costs incurred in the event of an unlawful refusal of benefits (cf. Löns/Herold-Tews/Boerner, SGB II, 3rd ed. 2011, § 22 para. 128 with reference to BSG judgment of 17.06.2010 – B 14 AS 58/09 R para. 21 – BSGE 106, 190).
Willi2's comment: Housing costs – when do courts see grounds for an injunction?
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Author of the legal case ticker: Willi 2 from Tacheles
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
