1. Decisions of the state social courts on basic income support for job seekers (SGB II)
1.1 – North Rhine-Westphalia State Social Court, decision of 15 March 2012, – L 19 AS 1618/11 B –
The job center must determine the cold operating costs in abstract terms.
For the period in dispute here, an abstractly appropriate size of 45 square meters must be assumed (cf. BSG judgment of 02.07.2009 – B 14 AS 33/08 R = juris Rn 32; cf. the judgment of the Senate of 12.01.2012 – L 19 AS 1322/11).
To determine the relevant operating costs, one can – also in an abstract way – refer to operating cost overviews, but preferably to local overviews due to regional differences, especially in supply and disposal services (BSG judgment of 13.04.2011, B 14 AS 106/10 R = juris Rn 27).
Since no local operating cost index is available for the period in dispute, the values of the operating cost index of the German Tenants' Association of North Rhine-Westphalia eV for North Rhine-Westphalia can be used.
The values determined therein are then to be multiplied by the abstractly appropriate apartment size, from which the abstractly appropriate "cold operating costs" result (see also the Senate's judgment of 12.01.2012 – L 19 AS 1322/11).
Note by Willi 2: North Rhine-Westphalia State Social Court, judgment of 16 May 2011, – L 19 AS 2202/10 –, appeal pending before the Federal Social Court under file number: – B 4 AS 109/11 R –
50 square meters of living space for single recipients of Hartz IV benefits
https://sozialgerichtsbarkeit.de
1.2 – North Rhine-Westphalia State Social Court, Judgment of 26 January 2012, – L 7 AS 1951/10
The term "initial equipment" should not be understood to mean that a beneficiary is to be granted, at the beginning of receiving benefits, those components of initial equipment that he or she does not possess.
It is not to be interpreted in terms of time, but – like all benefits under the German Social Code, Book II (SGB II) – in terms of need (Behrend in jurisPK – SGB II, 3rd edition 2011, § 24).
Thus, the initial furnishing of an apartment is to be treated as equivalent to cases of replacement procurement in which existing furnishings become unusable solely due to a move to suitable accommodation initiated by the basic income support provider (BSG, Judgment of 017.0.2009, Case No.: B 4 AS 77/08 R).
sozialgerichtsbarkeit.de
Comment by Willi 2: Hamburg State Social Court, Judgment of March 15, 2012, - L 4 AS 40/09
Due to the application requirement under Section 37 of the German Social Code, Book II (SGB II), a claim for initial furnishings for an apartment can only exist with regard to those items that were acquired after the application was submitted.
https://sozialgerichtsbarkeit.de
1.3 – North Rhine-Westphalia State Social Court, decision of 15.03.2012, – L 19 AS 1954/11 NZB –
When determining eligibility for assistance, the focus is on the inflow of income.
The applicability of the so-called accrual principle to the consideration of sickness benefits has been definitively established by the highest court (see Federal Social Court judgment of December 16, 2008 – B 4 AS 70/07 R = juris para. 15 et seq.; Federal Social Court judgment of May 13, 2009 – B 4 AS 29/08 R = juris para. 13). Accordingly, it is irrelevant for what period benefits were paid, but rather when they were received. This remains true even if the plaintiff paid bills or settled debts before submitting an application under the German Social Code, Book II (SGB II) (see also Federal Social Court judgment of September 30, 2008 – B 4 AS 29/07 R = juris para. 19; Federal Social Court judgment of June 21, 2011 – B 4 AS 21/10 R = juris para. 29).
sozialgerichtsbarkeit.de
Comment by Willi 2: BSG, Judgment of 27.09.2011, – B 4 AS 180/10 R –
The earned income allowance as defined in Section 30 of the German Social Code, Book II (SGB II) (old version, now Section 11b SGB II) is generally not deductible from sickness benefits as income replacement benefits. Its deductibility is limited to earned income.
https://sozialgerichtsbarkeit.de
1.4 – North Rhine-Westphalia State Social Court, Judgment of 13 February 2012, – L 19 AS 1996/11 –
The claim of the benefit recipient that the SGB II in general and the regulations on the conclusion of an integration agreement by administrative act in particular are unconstitutional is unfounded.
In numerous decisions not to accept appeals, the Federal Constitutional Court has assumed that the provisions of the German Social Code, Book II (SGB II), are fundamentally compatible with the Basic Law. In this respect, there are no general concerns (cf., e.g., Federal Constitutional Court decision not to accept the case of November 7, 2007 – 1 BvR 1840/07 = SGb 2008, 409 = juris; decision not to accept the case of July 7, 2010 – 1 BvR 2556/09 = NJW 2010, 2866 = juris; decision not to accept the case of March 16, 2011 – 1 BvR 591/08, 1 BvR 593/08 = SGb 2011, 702 = juris) nor concerns regarding the constitutionality of Section 15 Paragraph 1 Sentence 6 of the German Social Code, Book II (SGB II), either generally (cf. Federal Constitutional Court decision not to accept the case of October 30, 2009 – 1 BvR 2395/09). = NJW 2010, 1871 = juris).
1.5 – North Rhine-Westphalia State Social Court, decision of March 15, 2012, – L 19 AS 2003/11 B –
The Federal Social Court continues to base its decisions on the question of the appropriateness of residential properties on the living space limits of the Second Housing Construction Act (WoBauG) and considers a differentiation according to the number of persons to be necessary (Federal Social Court judgment of November 7, 2006 – B 7b AS 2/05 R = BSGE 97, 203 = juris para. 22; Federal Social Court judgment of May 16, 2007 – B 11b. 37/06 R = juris para. 26).
For single-family homes, the standard living area is 130 square meters for a household of four people. For homes occupied by up to two people, the standard living area is 90 square meters (Federal Social Court judgment of November 7, 2006 – B 7b AS 2/05 R = BSGE 97, 203 = juris para. 17 f.; Federal Social Court judgment of May 16, 2007 – B 11b AS 37/06 R = juris para. 25).
The living space of the plaintiffs' own home amounted to 102 square meters and thus exceeded the appropriate living space by more than 10% (cf. regarding the question of proportionality in the case of a deviation of up to 10%, Federal Social Court judgment of 07.11.2006 – B 7b AS 2/05 R = BSGE 97, 203 = juris para. 23; Federal Social Court judgment of 19.05.2009 – B 8 SO 7/08 R = NVwZ-RR 2010, 152 = juris para. 19).
sozialgerichtsbarkeit.de
Note by Willi 2: Hildesheim Social Court, decision of October 6, 2011, – S 26 AS 1548/11 ER –
No benefits under the German Social Code, Book II (SGB II) will be granted as a subsidy, because the house, occupied solely by the applicant and measuring 115 square meters, is no longer considered adequate living space.
https://sozialgerichtsbarkeit.de
1.6 – North Rhine-Westphalia State Social Court, decision of 14 March 2012, L 12 AS 134/12 B –
The job center does not reimburse over-the-counter medications
If it is assumed that the plaintiff's intake of the non-prescription medication in question is essential for his health and that failure to take it would lead to irreparable health problems, then the statutory health insurance fund must cover the costs. The Federal Social Court (BSG) stated the following in its judgment of May 26, 2011 (B 14 AS 146/10 R, paragraphs 23 and 24):
"The minimum standard of living to be guaranteed under social law, in accordance with Article 1 Paragraph 1 of the Basic Law in conjunction with Article 20 Paragraph 1 of the Basic Law, also includes ensuring adequate medical care.".
The plaintiff's entitlement to subsistence is primarily covered – as it is for the vast majority of those in need of assistance – by her membership in the statutory health insurance scheme (see Section 5 Paragraph 2a of the German Social Code, Book V), the contributions for which are paid by the provider of basic income support (Section 252 Paragraph 1 Sentence 2 of the German Social Code, Book V) and borne by the federal government (Section 46 Paragraph 1 of the German Social Code, Book II). As an insured person, the plaintiff is entitled to medical treatment under Section 27 of the German Social Code, Book V, if this is necessary to diagnose, cure, prevent the worsening of, or alleviate the symptoms of an illness.
However, this does not apply to non-prescription drugs in general and without exception, because Section 34 Paragraph 1 Sentence 2 of the German Social Code, Book V (SGB V) authorizes the Federal Joint Committee (G-BA) to determine in guidelines pursuant to Section 92 Paragraph 1 Sentence 2 Number 6 of the SGB V which non-prescription drugs considered standard therapy for the treatment of serious illnesses may be prescribed for these illnesses in exceptional cases, with justification from the contracted physician. The G-BA has made use of this authority and supplemented its Drug Guidelines with a Section F by resolution of March 16, 2004 (see Federal Gazette 2004, p. 8905, now Section 12 of the Drug Guidelines). Accordingly, the prescription of these drugs is permissible in exceptional cases if the drugs are considered standard therapy for the treatment of serious illnesses. An illness is considered serious if it is life-threatening or if, due to the severity of the health impairment it causes, it permanently and significantly reduces the patient's quality of life.
Therefore, without further investigation by the providers of basic income support, it can be assumed that infringements relevant to fundamental rights due to insufficient medical treatment, which could be averted by supplementary basic income support benefits, are ruled out.
The question of whether the costs of medication are covered as part of medical treatment must be clarified by the person in need of assistance with their health insurance provider. Regarding the therapeutic necessity of a specific medical treatment and the requirements for its proof, the same conditions apply to recipients of benefits under the German Social Code, Book II (SGB II), as to other insured persons under the German Social Code, Book V (SGB V), who obtain insurance coverage primarily through dependent employment
sozialgerichtsbarkeit.de
Comment by Willi 2: Federal Social Court (BSG), Judgment of May 26, 2011, Case No.: 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.
https://sozialgerichtsbarkeit.de
1.7 – Saxon State Social Court, Judgment of 16 February 2012, – L 3 AS 189/11 –
Section 22 Paragraph 1 Sentence 4 of the German Social Code, Book II (SGB II) is applicable, even though the plaintiff did not actually receive the landlord's reimbursement of operating costs himself, but rather the landlord transferred it to MH at the plaintiff's instigation.
The decisive factor is not the actual payment of a specific sum of money directly to the person in need or the actual credit entry in their favor, but rather whether the expenses for accommodation or heating are actually reduced by the repayment or credit (see Hamburg Higher Social Court, judgment of July 16, 2009 – L 5 AS 81/08 – JURIS document, para. 25 et seq.; North Rhine-Westphalia Higher Social Court, judgment of September 22, 2009 – L 6 AS 11/09 – JURIS document, para. 24 et seq.; Baden-Württemberg Higher Social Court, judgment of October 20, 2010 – L 3 AS 3759/09 – JURIS document, para. 29 et seq.). This is the case if the funds from the credit or repayment are available to the person in need.
The plaintiff had this option.
The jurisprudence of the Federal Social Court (see Federal Social Court, judgment of September 19, 2008 – B 14/7b AS 10/07 R – SozR 4-4200 § 11 No. 11 para. 25 = JURIS document para. 25; Federal Social Court, judgment of September 30, 2008 – B 4 AS 29/07 R – BSGE 101, 291 ff. para. 19 = SozR 4-4200 § 11 No. 15 para. 19 = JURIS document para. 19) clarifies that the fact that income was used to pay off debts does not preclude its consideration as reducing the need for assistance. Paying off debts is merely a specific form of using income. The receipt does not lose its character as income through the specific form of its use (see also Federal Administrative Court, judgment of February 19, 2001 – 5 C 4/2000 – DÖV 2001, 782 = ZFSH/SGB 2001, 542 = JURIS document, para. 9). However, within the scope of their self-help capabilities, a person seeking assistance is obligated to utilize all reasonable and readily available options to secure their necessary living expenses without state aid (see Section 2, para. 2 of the German Social Code, Book II).
The principle of subsidiarity in state welfare precludes the granting of benefits under the German Social Code, Book II (SGB II), insofar as the applicant does not use available funds to cover their living expenses but instead uses them to pay off private debts. Therefore, a recipient of SGB II benefits cannot dispose of funds that would otherwise be used to cover their necessary living expenses in such a way as to use these funds – by voluntary disposition – to pay off private debts (see Lower Saxony-Bremen Higher Social Court, judgment of April 15, 2011 – L 13 AS 333/10, JURIS document, para. 34).
If available funds are nevertheless not used for living expenses, the person in need must be treated as if the debts had not been repaid (Saxon State Social Court, decision of April 14, 2005 – L 3 B 30/05 AS ER – NZS 2006, 107 ff. = JURIS document para. 37).
Note by Willi 2: Social Court Neubrandenburg Judgment of 27.09.2010, – S 11 AS 960/07 –
No credit balance from the utility bill can be offset against the landlord's own claim.
www.landesrecht-mv.de
1.8 – State Social Court of Saxony-Anhalt, decision of 21 March 2012, – L 5 AS 509/11 B ER –
The wording of Section 15 Paragraph 1 Sentence 6 of the German Social Code, Book II (SGB II) already precludes the respondent from unilaterally replacing an already concluded and still valid integration agreement by means of an administrative act pursuant to Section 15 Paragraph 1 Sentence 6 of the SGB II (see Higher Social Court of Berlin-Brandenburg, decision of January 12, 2012 – L 5 AS 2097/11 B ER; Higher Social Court of Baden-Württemberg, decision of August 2, 2011 – L 7 AS 2367/11 and Bavarian Higher Social Court, decision of May 25, 2010 – L 11 AS 294/10 B ER – each available on juris).
The replacing administrative act is therefore unlawful according to the aforementioned standard of review. Whether and under what conditions a valid integration agreement can be amended was not a matter to be decided here, since the respondent replaced the existing integration agreement pursuant to Section 15 Paragraph 1 Sentence 6 of the German Social Code, Book II (SGB II), without the prerequisites for this replacement being met.
Whether the reinterpretation of the decision of June 15, 2011, which replaced the integration agreement, as an invitation to participate in the measure, which the respondent considers permissible, is actually permissible, can remain undecided. This is because the first sanction notice of August 18, 2011, amounting to 10% of the standard benefit, cannot be reinterpreted pursuant to Section 43 of the German Social Code, Book X (SGB X).
Sanctioning such a disregarded invitation under Section 32 Paragraph 1 of the German Social Code, Book II (SGB II) would be unlawful because the legal consequences were not properly explained. The notice dated June 15, 2011, announced a 30% reduction in the standard benefit in its information on legal consequences, instead of the 10% reduction legally stipulated for a disregarded invitation (see Federal Social Court (BSG), judgment of December 16, 2008 – B 4 AS 60/07 R (35) – juris).
If the information regarding the legal consequences is not specific, correct and complete, a sanction cannot be effectively based on it.
2. Decisions of the social courts on basic income support for job seekers (SGB II)
2.1 – Job centers don't always provide money for utility bill arrears
Anyone who has received benefits under the Social Code II (SGB II – “Hartz 4”) in the past cannot rely on the job center to also cover a utility bill arrears payment.
This is illustrated by the case of a woman from Mainz who received her utility bill for 2010 from her former landlord in December 2011, demanding a payment of €400. While the woman was no longer receiving benefits from the job center, she had been receiving unemployment benefit II in 2010 due to a lack of income and assets. At that time, her rent had also been covered by the job center. The woman had since deregistered from the job center and moved. Because the bill was for 2010, she attempted to recover the amount from the job center.
At the same time, she contacted the Social Court of Mainz and requested preliminary legal protection (Case No.: S 10 AS 200/12 ER).
She believed she was in the right, as she had no control over when the invoice was issued. Had the invoice been issued in 2010, the job center would have been obligated to cover the costs. She could not afford to wait for a lengthy appeal and legal process. However, the court pointed out to the plaintiff that benefits to secure subsistence under the German Social Code, Book II (SGB II), can generally only be granted if there is a current need for assistance.
This is apparently no longer the case for the woman, as she is no longer dependent on benefits from the job center. In this case, a former benefit recipient must settle any subsequently claimed debt themselves, even if the debt relates to the period during which benefits were received.
The court further pointed out that preliminary legal protection can only be granted if significant disadvantages are imminent without a court order. This was not the case for the woman from Mainz. For an urgent need to exist, for example, the loss of her apartment must be imminent, which was not to be expected in her case due to her recent move.
www.mjv.rlp.de
Note by Willi 2: BSG, Judgment of 22.03.2010 – B 4 AS 62/09 R –
A landlord's demand for additional utility costs can only constitute a change in circumstances within the meaning of Section 48 Paragraph 1 Sentence 1 of the German Social Code, Book X (SGB X), in favor of a person in need of assistance if, at the time the demand becomes due, there is a basic entitlement to benefits, i.e., all the requirements of Section 7 of the German Social Code, Book II (SGB II) are met.
lexetius.com
3. Social security entitlements of foreigners (Part 2)
An article by Mrs. Tießler-Marenda, published in Sozialrecht aktuell issue 2/2012.
www.socialrecht-aktuell.nomos.de (pdf)
Author of the legal case ticker: Willi 2 from Tacheles
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
