1. Decisions of the Federal Social Court of 22 March 2012 on basic income support for job seekers (SGB II)
1.1 – BSG, Judgment of 22.03.2012, – B 4 AS 102/11 R –
Hartz IV benefits for students during a leave of absence semester
Students can only receive Hartz IV benefits during a leave of absence from their studies if they completely withdraw from their studies. If, on the other hand, they are still attending lectures or preparing for exams at home, they are not entitled to Hartz IV, the Federal Social Court (BSG) in Kassel ruled on Thursday, March 22, 2012 (Case No.: B 4 AS 102/11 R).
According to the law, job centers are not required to pay Hartz IV benefits to applicants pursuing vocational training that is eligible for BAföG (Federal Training Assistance Act) or Meister-BAföG (Master Craftsman's Training Assistance Act). According to established case law of the Federal Social Court (BSG), the sole determining factor is the eligibility of the training program for funding, not whether training assistance is actually granted in a specific case. Hartz IV must not become a "hidden form of vocational training assistance," the judges in Kassel emphasized in their latest ruling.
Therefore, when taking a leave of absence, it depends on whether the student is still attending university classes or simply continuing their studies at home, for example by writing papers or preparing for exams. Only if a student is no longer pursuing their studies at all can an application for Hartz IV (unemployment benefits) be successful.
1.2 – BSG, Judgment of 22.03.2012, – B 4 AS 26/10 R –
No deduction of loan repayments for rental deposit
The withholding was unlawful because there was no legal basis for it, at least during the period in dispute.
The defendant cannot rely on the provisions regarding set-off in Section 51 of the German Social Code, Book I (SGB I), because, considering the amount of the current benefits under the German Social Code, Book II (SGB II), they are not subject to attachment. The withholding cannot be based on Section 23 Paragraph 1 Sentence 3 of the SGB II, which, as an exception, grants the basic income support provider a right of set-off that extends beyond that of Section 51 of the SGB I, because this provision expressly refers only to loans for unavoidable needs to secure subsistence.
An analogous application of Section 23 Paragraph 1 Sentence 3 of the German Social Code, Book II (SGB II) is not possible because there is no unintended regulatory gap. The plaintiff's declaration of February 25, 2008, which was drafted and obtained by the defendant, also does not entitle the plaintiff to repay the rental deposit loan from the regular benefits, because waiving these subsistence-level benefits would, in any case, constitute a circumvention of legal provisions within the meaning of Section 46 Paragraph 2 of the German Social Code, Book I (SGB I).
Whether legal regulations have been circumvented must be assessed in the social law relationship between the benefit recipient and the social security provider based on the meaning and purpose of the respective legal regulations and their systematic structure. In the case of a waiver obtained here by the SGB II provider, this constitutes an impermissible attempt to circumvent the impermissible offsetting of ongoing benefits securing the subsistence minimum, by disregarding the specific requirements and limits of Section 51 of the SGB I.
2. Decision of the Federal Social Court of 20 December 2011 on basic income support for job seekers (SGB II)
2.1 – BSG, Judgment of 20 December 2011, -B 4 AS 46/11-
Monetary contributions from parents are not considered income, because the contributions from the parents have substituted the benefit unlawfully denied by the basic income support provider until the lawful situation is restored.
The wording of Section 11 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II) does not provide a further definition of what constitutes income.
Only the benefits mentioned in the second part of the sentence are excluded from consideration from the outset. According to the established case law of the Federal Social Court (BSG) on unemployment assistance (BSGE 58, 160 = SozR 4100 § 138 No. 11; SozR 4100 § 138 No. 25) and the Federal Administrative Court (BVerwG) on the concept of income in housing benefit law (established case law since BVerwGE 54, 358; BVerwGE 69, 247), a benefit provided only temporarily by a third party cannot be classified as income within the scope of application of Section 11 Paragraph 1 of the German Social Code, Book II (SGB II), according to the purpose and intent of the provision.
Only the "increase in value" constitutes income within the meaning of Section 11 Paragraph 1 of the German Social Code, Book II (SGB II); only those receipts in cash or in kind that result in a change in the financial position of the person receiving such income are considered income. This increase must remain with the benefit recipient for their final use, because only then will their need for assistance be permanently eliminated to the extent of the payments.
In this respect, according to the previous case law of the two basic income support senates of the Federal Social Court (BSG), a distinction must be made between a) monetary payments or benefits in kind that are given to a person entitled to benefits under Book II of the German Social Code (SGB II) for their permanent residence, b) a loan that is subject to a repayment obligation to the lender within the meaning of the German Civil Code (BGB), and c) third-party contributions that are intended to substitute for a benefit that has been unlawfully rejected by the basic income support provider precisely because of the rejection, until the lawful situation is restored.
The latter do not constitute income within the meaning of the definition of income set out at the beginning and do not release the basic income support provider from its obligation to provide benefits.
It was already established under the Federal Social Assistance Act (BSHG) that assistance from a third party does not preclude entitlement to social assistance if the third party steps in provisionally – as it were, in place of the social assistance provider and subject to a claim for reimbursement – only because the social assistance provider failed to provide timely assistance or refused assistance (see Federal Administrative Court [BVerwG] judgment of June 23, 1994 – 5 C 26/92 – BVerwGE 96, 152; BVerwGE 94, 127; 90, 154; 26, 217). The 14th and 4th Senates of the Federal Social Court (BSG) have followed this precedent (BSG judgments of October 6, 2011 – B 14 AS 66/11 R – and September 27, 2011 – B 4 AS 202/10 R – as well as November 22, 2011 – B 4 AS 204/10 R-).
The parents' contributions were not subject to a repayment obligation only in the month following their receipt. Otherwise, according to the Federal Social Court's (BSG) jurisprudence, the recipient would be obligated to use the benefit as "available funds" in the month of receipt. The repayment obligation arising only thereafter would then become debt repayment that cannot be made from basic income support – apart from legally defined exceptions (cf. the case of the recovery of wrongly granted unemployment benefits in the month following receipt, BSG judgment of August 23, 2011 – B 14 AS 165/10 R –).
sozialgerichtsbarkeit.de
Comment by Willi 2: BSG, Judgment of 20.12.2011, – B 4 AS 200/10 R –
When relatives give money to Hartz IV recipients to pay off their checking account debts, this leads to a reduction in unemployment benefit II
(Tacheles KW 52/2011).
3. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
3.1 – Hamburg State Social Court, Judgment of 15 March 2012, – L 4 AS 40/09 –
Due to the application requirement according to § 37 SGB II, a claim for initial furnishing of an apartment can only exist with regard to those items that were acquired after the application was submitted
The need for initial equipment had already ceased to exist – namely with regard to the initial equipment purchased before February 19, 2008 – because the plaintiff's parents had already made the purchases before the defendant even had the opportunity to cover the costs.
The need was met by the in-kind contribution, and given the chronological sequence of acquisition and application, the plaintiff's parents did not intend to substitute a benefit unlawfully rejected by the basic income support provider simply because of the rejection, until the lawful situation was restored (cf. BSG, Judgment of 20.12.2011 – B 4 AS 46/11 R).
That would not have released the basic income support provider from its obligation to provide benefits; however, that is precisely not the case here.
The plaintiff's parents did not merely provide assistance in the form of a loan; no obligation on the part of the plaintiff to repay the loan was ever alleged, nor is any such obligation otherwise apparent. Rather, the plaintiff stated in his complaint that his parents had advanced the purchase costs and intended to receive reimbursement from the defendant. This does not constitute a loan agreement.
sozialgerichtsbarkeit.de
Commentary by Willi 2. BSG, Judgment of 20.12.2011, -B 4 AS 46/11 R –
Monetary contributions from parents are not considered income, because these contributions have substituted for the benefit unlawfully denied by the social security agency until the legally correct situation is restored.
sozialrechtsexperte.blogspot.de
3.2 – North Rhine-Westphalia State Social Court, decision of 16 February 2012, – L 19 AS 91/12 B ER
There is no subjective public right of a benefit recipient to (co-)determine the case worker in their benefit matter.
The assignment of tasks to a case worker is an internal administrative decision that cannot be reviewed by a benefit recipient in court (see North Rhine-Westphalia State Social Court decision of 23.04.2010 – L 6 B 93/09 AS – with further case law references).
The provision in Section 14 Sentence 2 of the German Social Code, Book II (SGB II), which stipulates that a personal contact person should be appointed for each employable person entitled to benefits, does not give rise to a subjective public right of the benefit recipient to reject a specific caseworker and be assigned another. Section 14 Sentence 2 of the SGB II merely establishes an objective legal assignment of tasks to the benefit provider, but does not grant the benefit recipient a legal entitlement to specific personnel structures in case processing (Federal Social Court judgment of September 22, 2009 – B 4 AS 13/09 R = BSGE 104, 185, juris Rn 26 with further references; Higher Social Court of North Rhine-Westphalia decision of April 23, 2010 – L 6 B 93/09 AS -)
Even if the applicant considers the respondent's responsible case worker to be biased, Section 17 of the Tenth Book of the Social Code (SGB X) does not grant the party a formal right of recusal (BSG judgment of 22.09.2009 – B 4 AS 13/09 R = juris Rn 27 with further references).
The internal administrative decision regarding concerns about the bias of an employee has no external legal effect and is not independently appealable (Federal Social Court judgment of 22 September 2009 – B 4 AS 13/09 R = BSGE 104, 185, juris para. 26 with further references; Higher Social Court of North Rhine-Westphalia decision of 23 April 2010 – L 6 B 93/09 AS – with further references; Higher Administrative Court of North Rhine-Westphalia decision of 10 January 2000 – 18 A 4228/95 = DVBl. 2000, 572; Federal Fiscal Court decision of 7 May 1981 – IV B 60/80 = BFHE 133, 340).
3.3 – North Rhine-Westphalia State Social Court, decision of 08.03.2012, – L 19 AS 2025/11 B –
The assurance pursuant to Section 22 Paragraph 4 of the German Social Code, Book II (SGB II) is only relevant for cases in which the move has not yet been completed.
The provision in Section 22 Paragraph 4 Sentence 1 of the German Social Code, Book II (SGB II) is a discretionary provision and is not mandatory, but merely serves an informational and warning function (cf. Berlit in LPK-SGB II, 4th edition 2011, Section 22, marginal note 119).
With the plaintiff's move into the new apartment, an assurance under Section 22 Paragraph 4 Sentence 1 of the German Social Code, Book II (SGB II) is no longer possible, as the purpose of the provision can no longer apply from this point onwards (see Higher Social Court Berlin-Brandenburg L 26 AS 421/07 = juris Rn. 15; see also Federal Social Court judgment of 22 November 2011 – B 4 AS 219/10 R = juris Rn. 14 ff. regarding the provision of Section 22 Paragraph 4 SGB II).
Therefore, there is no need for legal protection in this respect either.
sozialgerichtsbarkeit.de
Comment by Willi 2: BSG, Judgment of 22.11.2011, – B 4 AS 219/10 R –
Those in need of assistance are not entitled to an assurance of the adequacy of the basic rent for their current accommodation under Section 22 Paragraph 2 of the German Social Code, Book II (SGB II).
(sozialrechtsexperte.blogspot.de
3.4 – North Rhine-Westphalia State Social Court, Judgment of 12 January 2012, – L 19 AS 17/11 –
A claim arising from a capital life insurance policy in the event of premature termination of the contract constitutes an asset.
Assets within the meaning of Section 12 of the German Social Code, Book II (SGB II) are all realizable assets. These include not only movable property and real estate, but also securitized or unsecuritized claims and monetary benefits in the form of surrender values from insurance policies.
The fact that further realization measures must be "interposed" to achieve an actual inflow of the claim as income in money or money's worth and thus as income in accordance with Section 11 of the German Social Code, Book II (SGB II), does not preclude the consideration of claims as assets within the meaning of Section 12 of the SGB II.
Therefore, claims and rights that are established as full legal rights (cf. Federal Social Court judgment of 30 August 2010 – B 4 AS 70/09 R = juris Rn 14f with further references) can also be assets within the meaning of Section 12 of the German Social Code, Book II (SGB II), which, as unavailable funds, must be used to secure subsistence if they can be realized (cf. Federal Social Court judgment of 30 August 2010 – B 4 AS 70/09 R = juris Rn 14, 15).
sozialgerichtsbarkeit.de
Note by Willi 2: Baden-Württemberg State Social Court, Judgment of January 24, 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 assessing whether the liquidation of a life insurance policy is manifestly uneconomical (Section 12 Paragraph 3 No. 6 Alternative 1 of the German Social Code, Book II), partial payouts must be taken into account and deducted from the total premiums paid when comparing the premiums paid with the surrender value.
sozialrechtsexperte.blogspot.de
3.5 – North Rhine-Westphalia State Social Court, decision of 22 February 2012, – L 7 AS 1716/11 B –
A recipient of basic income support for job seekers should not be invariably referred primarily to the use of civil legal protection in the event of a threatened electricity disconnection.
Taking into account the duration and the unpredictable prospects of success of a civil lawsuit, it is necessary to examine whether the applicant has exhausted reasonable self-help options and to what extent the respondent was obligated to provide advice and assistance (LSG NRW, decision of 02.04.2008 – L 7 B 251/07 AS ER; Hammel, info also 6/2011, 251 ff.; Berlit in LPK-SGB II, Commentary on the SGB II, 4th edition 2011, § 22 para. 194).
According to Section 2 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), an employable person entitled to benefits must exhaust all possibilities to end or reduce their need for assistance.
However, this does not mean that the plaintiff may always be referred to civil court for preliminary legal protection regarding outstanding energy costs.
According to the legal opinion of several civil courts, the energy supplier is only obliged to resume the interrupted energy supply once all outstanding energy costs have been paid (cf. Gotzen, ZfF 2007, p. 248, 249 f. regarding the civil law situation).
Furthermore, the obligation of the employable benefit recipient to cooperate does not release the basic income support provider from its obligation to provide support as laid down in Section 17 of the German Social Code, Book One (SGB I).
The reference to civil court preliminary legal protection in cases of disproportionate threatened electricity disconnections (§ 19 para. 2 sentence 2 StromGVV) regularly requires consistent advice and support from the benefit provider (Berlit in LPK-SGB II, Commentary on the SGB II, 4th edition 2011, § 22 para. 194).
The basic income support provider must ensure that the employable benefit recipient is only required to provide such a level of cooperation that is objectively and subjectively reasonable.
It is not appropriate to refer a beneficiary, who regularly lacks experience in the field of civil court preliminary legal protection, to this particular form of judicial protection in a blanket manner and without offering (possibly also legal) advice and assistance.
Note by Willi 2: Berlin-Brandenburg State Social Court, decision of 08.08.2011, – L 5 AS 1097/11 B ER –
Hartz IV recipient has been without power since May 12, 2011 – electricity cut-off – no assumption of electricity debts.
sozialrechtsexperte.blogspot.de
3.6 – Bavarian State Social Court Judgment of February 2, 2012 – L 11 AS 675/10 –
Need for assistance under the German Social Code, Book II (SGB II), despite real estate assets
Only those in need are eligible for assistance and therefore entitled to benefits under the German Social Code, Book II (SGB II) – Hartz IV. Anyone with assets must use them to cover their living expenses.
Exceptions exist, such as for protected assets covered by allowances. Assets that cannot be liquidated, including those that are not marketable, are not considered assets. For real estate, marketability includes, among other things, the ability to transfer it without the consent of others.
The Bavarian State Social Court has ruled on a memorable case in this regard.
Background:
The plaintiff had received a house and leased agricultural land from his parents. The parents had reserved a right of reversion in the land register should the property be sold without their consent. Furthermore, the property was legally secured for a grandchild until 2017. From their perspective, the parents wanted to prevent the plaintiff from squandering the real estate for the benefit of their grandson, given his past handling of money. When the plaintiff applied for Hartz IV benefits, the job center rejected his application, arguing that he was not in need. The multi-family house and the agricultural land, exceeding 12,000 square meters, were considered assets. The social court upheld this decision and also denied basic income support.
The decision:
The Bavarian State Social Court overturned the ruling of the Social Court and ordered the job center to provide benefits under the German Social Code, Book II (SGB II). The court ruled that the plaintiff's house and agricultural land were not assets that could be liquidated and marketed.
This is prevented by the legally secured right of reversion. This right serves not only the purpose of circumventing the subordination of Hartz IV benefits, but also the legitimate aim of preserving the assets for the grandchild. Therefore, there is no unethical collusion between the plaintiff and his parents at the expense of basic income support.
Impact of the Decision:
The Bavarian State Social Court has ruled on another case concerning the realizability of real estate assets, thereby establishing eligibility for benefits under the German Social Code, Book II (SGB II), despite the existence of an apartment building and agricultural land exceeding 12,000 square meters. The State Social Court rejected the exceptional case of unethical collusion between the individuals involved.
sozialgerichtsbarkeit.de
Note by Willi 2: According to Section 9 Paragraph 4 of the German Social Code, Book II (SGB II), a person is also considered in need of assistance if the immediate consumption or liquidation of assets to be taken into account is not possible for them, or if this would constitute a particular hardship.
sozialrechtsexperte.blogspot.de
3.7 – LSG Schleswig-Holstein, decision of March 7, 2012, – L 11 AS 29/12 B ER – and L 11 AS 29/12 B ER PKH –
It is unreasonable to expect indigent students in the examination phase to continue taking up employment in order to finance their studies if they are required to devote all their energy to a successful examination in order not to jeopardize the success of their thesis.
In this situation, the exclusion from benefits under the German Social Code, Book II (SGB II) constitutes a particular hardship within the meaning of Section 27 Paragraph 4 Sentence 1 of the SGB II, if, upon successful completion of studies, a completed vocational training can be demonstrated for the first time.
Article: Sozialberatung-kiel.de
Decision of the LSG as a scan: sozialberatungkiel.files.wordpress.com (pdf)
4. Decisions of the social courts on basic income support for job seekers (SGB II)
4.1 – Schleswig Social Court, decision of October 6, 2011, – S 1 AS 137/11 ER –
The absence of a subletting permit (§ 540 para. 1 sentence 1 BGB) does not affect the validity of a sublease agreement concluded with an employable person entitled to benefits.
The subletting permit is only effective in the relationship between the landlord and the main tenant.
The full text of the decision can be found here:
Article: Sozialberatung-kiel.de
Decision: sozialberatungkiel.files.wordpress.com (pdf)
4.2 – Social Court Berlin, Judgment of 18 January 2012, – S 55 AS 30011/10 –, Appeal allowed
In the case of an inflow of two monthly salaries from the same employment relationship within one calendar month, the allowances pursuant to Sections 11 Paragraph 2 Sentence 2, 30 Sentence 1 SGB 2 aF (now: Section 11b Paragraphs 2 and 3 SGB 2) shall be granted for each monthly salary, unless remuneration is received from several employment relationships or activities and the allowances are exhausted.
5. Decisions of the State Social Courts on Social Assistance (SGB XII)
5.1 – Baden-Württemberg State Social Court, Judgment of 23 February 2012, – L 7 SO 1246/10 –
1. The assumption of costs for systemic movement therapy for a severely disabled child can be considered assistance towards appropriate schooling within the meaning of Section 54 Paragraph 1 Sentence 1 No. 1 SGB XII in conjunction with Section 12 No. 1 EinglHV and thus fall under the benefits of integration assistance.
2. The granting of integration assistance through the assumption of costs for systemic movement therapy is not precluded by the principle of the subsidiary nature of social assistance with regard to the school's responsibility simply because this form of therapy also contains (special) educational elements. Rather, the decisive factor is whether the measure can be attributed to the core area of the teachers' pedagogical work in the sense of the school's educational mandate; even considering the changes in school regulations in connection with the increasing inclusive education of children and young people with disabilities, a supplementary need for integration may still exist.
5.2 – North Rhine-Westphalia State Social Court, decision of 06.02.2012, – L 20 SO 527/11 B –
Granting of legal aid, because the amendment to the standard rates according to the annex to Section 28 SGB XII, which came into force on 01.1.2011, is unconstitutional where possible.
According to Section 27a Paragraph 2 of the German Social Code, Book XII (SGB XII) (as amended by Article 3 No. 8 of the RBEG), the total necessary cost of living as defined in Paragraph 1 of the provision – with the exception of the needs under Sections Two to Four – constitutes the standard allowance (Sentence 1). This allowance is divided into standard allowance levels, which take into account age-related differences for children and adolescents and, for adults, their number in the household and their ability to manage a household (Sentence 2). To cover the standard allowances, which are determined according to the standard allowance levels in the appendix to Section 28 of the SGB XII, monthly standard rates are to be granted pursuant to Section 27a Paragraph 3 of the SGB XII. These rates are also covered by basic income support for the elderly and those with reduced earning capacity, as stipulated in Section 42 No. 1 of the SGB XII. According to Section 8 Paragraph 1 No. 3 of the RBEG (Regulation on the Adjustment of Standard Benefit Rates), the annex to Section 28 of the German Social Code, Book XII (SGB XII) provides for a standard benefit level 3 of EUR 291.00 for adult beneficiaries who – like the plaintiff – neither have their own household nor share a household as a spouse, life partner or in a marriage-like or life-partnership relationship.
Although the defendant based the benefit award on the standard benefit level in accordance with the legal requirements from 1 April 2011 onwards, it is – following the plaintiff's submissions – quite possible and certainly not far-fetched in the sense of the principles outlined at the beginning, that Section 8 Paragraph 1 No. 3 RBEG is unconstitutional.
In this respect, it may ultimately remain open whether this provision violates the fundamental right to a dignified minimum standard of living, constitutionally guaranteed in Article 1 Paragraph 1 of the Basic Law in conjunction with the social state principle of Article 20 Paragraph 1 of the Basic Law, because the legislator has not sufficiently taken into account the constitutional requirements established by the Federal Constitutional Court in its judgment of February 9, 2010 – 1 BvL 1/09, 3/09 and 4/09 (BVerfGE 125, 175 et seq.) for determining the dignified minimum standard of living for the group of persons covered by standard benefit level 3 (cf., among others, Münder, loc. cit., p. 82); For regardless of this, it is at least conceivable that Section 8 Paragraph 1 No. 3 RBEG is unconstitutional insofar as the different treatment of adults (after reaching the age of 25) in the SGB II and SGB XII violates the principle of equal treatment under Article 3 Paragraph 1 of the Basic Law.
The general principle of equality enshrined in Article 3 Paragraph 1 of the Basic Law prohibits treating one group of addressees of a legal norm differently from another group of addressees of a legal norm, even if there are no differences between the two groups of such a nature and weight as to justify the unequal treatment (BVerfGE 100, 195, 205; 107, 205, 214; 109, 96, 123). Article 3 Paragraph 1 of the Basic Law requires that any unequal treatment be based on an objectively justified distinguishing characteristic. Depending on the subject matter of the regulation and the differentiating characteristic, the general principle of equality imposes different limits on the legislature, ranging from a mere prohibition of arbitrariness to a strict adherence to principles of proportionality (see BVerfGE 97, 271, 290; 99, 367, 388; 107, 27, 45). However, the legislature must be granted particularly broad discretion in the field of social law (see BVerfGE 17, 210, 216; 77, 84, 106, 81, 156, 205).
Based on this, there is unequal treatment within the meaning of Article 3 Paragraph 1 of the Basic Law (GG), insofar as permanently and fully incapacitated persons who fall under the benefit system of the German Social Code, Book XII (SGB XII) and live in a household with another adult (e.g., parents) without maintaining their own household, receive only benefits at standard benefit level 3 (amounting to EUR 291.00) even after reaching the age of 25, according to Section 8 Paragraph 1 No. 3 of the Ordinance on the Calculation of Benefits (RBEG) in conjunction with Section 28 of the SGB XII, whereas employable persons in the standard benefit system of the German Social Code, Book II (SGB II) who are in a comparable situation are entitled to benefits at standard benefit level 1 (amounting to EUR 364.00) after reaching the age of 25 (cf. Section 20 Paragraph 2 No. 2 or Paragraph 3 of the SGB II, according to which benefits at the level of standard benefit level 3 are only granted to adult members of a benefit unit and to those under 25). (This applies to those who have moved out without the consent of the municipal authority). However, it is at least not out of the question that this unequal treatment is not objectively justified.
While there are systemic differences between basic income support for job seekers and social assistance insofar as employable individuals, including those over 25 living in their parents' household, are obligated to take up employment, which requires a greater degree of personal responsibility and economic flexibility (as explained in the report of the Committee on Labor and Social Affairs, BT-Dr. 17/4095, p. 27), different or higher expectations are placed on employable individuals regarding their efforts to integrate into the labor market. These expectations can manifest themselves, for example, in application costs, travel expenses, and clothing costs (cf. Münder, ibid., p. 83). With regard to the question of whether, and to what extent, these expenses, insofar as they are not already covered by the integration into employment benefits and are therefore not relevant to the standard benefit rate, justify the lower benefits of standard benefit level 3 stipulated in Section 8 Paragraph 1 No. 3 RBEG, there is an apparent lack of corresponding investigations by the legislator concerning the group of persons covered by the German Social Code, Book XII (SGB XII) and the lower benefits of standard benefit level 3 stipulated therein (see, in conclusion, Münder, loc. cit., p. 83; cf. also Gutzler in juris-PK-SGB XII, Section 27a Rn. 79).
Such investigations may have been necessary, however, because the Federal Constitutional Court, in its decision of February 9, 2010 – 1 BvL 1/09 et al. – deemed a typifying approach permissible, at least as far as can be ascertained, only in connection with the reduction of the standard benefit level 2 for partner households (to 180% of the corresponding benefit of a single person), while the plaintiff is a member of a household of (at least) two other persons. Furthermore, the Federal Social Court, in its decision of May 19, 2009 – B 8 SO 8/08 R, referring to the constitutional jurisprudence on Article 3 Paragraph 1 of the Basic Law, considered a reduction of the standard benefit rate in Book XII of the German Social Code (SGB XII) compared to the standard benefit rate in Book II of the German Social Code (SGB II) in the case of classification as household members to be objectively unjustified due to the identical social welfare function of both benefits, namely securing the minimum subsistence level.
Whether the different treatment of individuals over 25 years of age under the German Social Code, Book II (SGB II) and Book XII (SGB XII) – apart from potentially different expectations regarding efforts to integrate into the labor market – can be successfully justified under Article 3 Paragraph 1 of the German Basic Law (GG) on further systemic differences, namely the different consideration of maintenance claims or expectations of the household member receiving benefits against their parents and/or the differing treatment of the use of assets or the crediting of earned income under SGB II and SGB XII (cf. the report of the Committee on Labor and Social Affairs – BT-Drs 17/4095, p. 27), is doubtful; because, at least upon summary review, it is not apparent from the legislative history what circumstances these differences should lead to an increase in the overall need under SGB II (similarly Gutzler, loc. cit., § 27a Rn. 79).
Note by Willi 2: Aachen Social Court, judgment of January 20, 2012, - S 19 SO 108/11 -, appeal allowed
New standard rates are constitutional
(social law expert.blogspot.de)
6. Federal Labour Court, Judgment of 21 March 2012 – 5 AZR 61/11 –
Scope of the transfer of claims in the case of "Hartz IV benefits"
If a social security agency provides benefits to an employee because the employer fails to pay wages, the claim for these wages is transferred to the agency in accordance with Section 115 Paragraph 1 of the German Social Code, Book X (SGB X), up to the amount of the benefits paid to the employee. However, the principle of personal identity is not applicable to basic income support for jobseekers provided to members of a household receiving benefits under the German Social Code, Book II (SGB II). If a joint employment agency (ARGE, now: Jobcenter) provides benefits to the spouse or registered partner of the person receiving assistance, as well as to their unmarried children under 25, because the employer fails to pay the employee's wages, the employee's claim for these wages is also transferred to the basic income support agency in accordance with the special provision in Section 34b of the German Social Code, Book II (SGB II), up to the amount of the benefits paid to these individuals.
The defendant, the insolvency administrator, failed to pay the plaintiff his wages for several months. The plaintiff and his wife therefore received social assistance benefits under the German Social Code, Book II (SGB II). The defendant complied with the social assistance provider's request to reimburse the benefits paid to both spouses and paid only the remaining amount to the plaintiff. The plaintiff is now demanding back payment of his wages in the amount of the social assistance his wife received.
The labor court dismissed the claim for payment, but the regional labor court upheld it. Upon the defendant's appeal, the case was remanded to the regional labor court. It remains to be determined how much basic income support was provided because the defendant failed to pay the wages.
7. Note on: BSG 14th Senate, Judgment of 13.04.2011 – B 14 AS 98/10 R –
Author: Dr. Thomas Harks, Judge at the Social Court, Source: jurisPR-SozR 6/2012 Note 1
Public law claim for reimbursement in the case of one-euro jobs
Guiding principles
1. If a work opportunity against additional expense allowance (so-called one-euro job) lacks the characteristic of additionality, the participant can demand compensation from the basic income support provider for the work performed without legal basis on the basis of a public-law claim for reimbursement.
2. The compensation shall be determined on a daily basis according to what would otherwise have had to be expended to maintain the work performance, and what expenses the provider incurred in return.
www.juris.de
Comment by Willi 2: Comment on: BSG 14th Senate, Judgment of 13.04.2011 – B 14 AS 101/10 R – Assignment of a one-euro job as an administrative act
sozialrechtsexperte.blogspot.de
Author of the legal case ticker: Willi 2 from Tacheles
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
