1. Decision of the Federal Social Court of 25 January 2012 on basic income support for job seekers (SGB II)
1.1 – BSG, Judgment of 25 January 2012, – B 14 AS 131/11 R –
The Federal Social Court has issued a very recent statement on the question of whether the RBEG (Regulation on the Calculation of Standard Benefits) eliminates, in particular, the calculation of standard benefits (until December 31, 2010 "standard benefit") for children and young people, which the Federal Constitutional Court considered unconstitutional.
The facts presented by the Social Court of Oldenburg do not permit a decision regarding the amount of the claims to which the plaintiffs are entitled under the German Social Code, Book II (SGB II). The judgment contains neither findings in its statement of facts nor in its reasoning that would make the plaintiffs' claims under the SGB II comprehensible in terms of both their basis and amount. This alone necessitates the remand of the case.
In addition to methodological concerns in this respect (critically Rothkegel, ZFSH/SGB 2011, 69, 78 f; Lenze, NVwZ 2011, 1104, 1108; regarding concerns about the statistical derivation, in particular Becker, Bewertung der Neuregelungen des SGB II – Gutachten für die Hans-Böckler-Stiftung, SozSich Extra, September 2011, p. 46), concerns are raised in the literature in particular that the participation in extracurricular activities mediated by the new legal regulation always presupposes eligible offers in the vicinity of the place of residence of the child in need of assistance. If such offers could not be taken up, this would result in a hidden reduction of the child's standard allowance (cf. Münder, Constitutional Assessment of the RBEG – Expert Opinion for the Hans-Böckler-Foundation, SozSich Extra, September 2011, pp. 63, 87 et seq.; similarly Lenze in Münder, LPK-SGB II, 4th ed. 2011, § 28 para. 39; Kothe in KSW, 2nd ed. 2011, §§ 28, 29 SGB II para. 52). Likewise, it is currently unclear what the legal relationship is between the granting of social assistance taking into account a standard allowance that includes transportation expenses and the granting of benefits under Section 28 Paragraph 4 of the German Social Code, Book II (see, for example, Leopold in jurisPK-SGB II, 3rd edition 2011, Section 28, marginal note 96; Voelzke in: Hauck/Noftz, SGB II, as of 42nd edition, Section 28, marginal note 71).
A comprehensive examination of these issues requires, as a starting point, knowledge of whether the second plaintiff was able to claim benefits under Section 24a of the German Social Code, Book II (SGB II aF) for the 2010/2011 school year, what further needs were claimed under Section 28 of the German Social Code, Book II (SGB II) upon the entry into force of the Act on the Remuneration of Students (RBEG), and how the granting of additional benefits may have affected the second plaintiff's living circumstances.
2. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
2.1 – Bavarian State Social Court, Judgment of 27 March 2012, – L 11 AS 774/10 –
In the case of a reporting appointment pursuant to Section 59 SGB II in conjunction with Section 309 Paragraph 1 SGB III, the job center must reimburse the applicant for the actual travel expenses.
Unlike a consultation or similar service, for which travel expenses can be reimbursed according to Section 16 Paragraph 1 of the German Social Code, Book II (SGB II) in conjunction with Sections 45 et seq. of the German Social Code, Book III (SGB III), a person in need of assistance is obligated to appear when summoned to an appointment according to Section 59 of the German Social Code, Book II (SGB II) in conjunction with Section 309 Paragraph 1 of the German Social Code, Book III (SGB III). Failure to appear without excuse will result in a sanction according to Section 31 Paragraph 2 of the German Social Code, Book II (SGB II). The legislator considers this reporting obligation to be a special duty of great importance.
In view of her economic circumstances as a recipient of benefits under the German Social Code, Book II (SGB II), and in the absence of any other indications that could justify a refusal to cover the costs, no other lawful course of action is apparent for the defendant than to cover the travel expenses in principle (see also Federal Social Court [BSG], judgment of 6 December 2007, – B 14/7b AS 50/06 R –, para. 22; Winkler in: Gagel, SGB II/SGB III, as of 2012, § 59 SGB II para. 21).
2.2 – Berlin-Brandenburg State Social Court, decision of 20 February 2012, – L 5 AS 2225/11 B PKH –
There are no constitutional objections to the new regulations governing standard needs, which came into effect on January 1, 2011
(Similarly, Baden-Württemberg State Social Court, decision of October 26, 2011, L 2 AS 4330/11 B; judgment of October 21, 2011, L 12 AS 3445/11; Saxony-Anhalt State Social Court, decision of October 11, 2011, L 2 AS 99/11 B; Bavarian State Social Court, decision of May 27, 2011, L 7 AS 342/11 B; decision of July 5, 2011, L 7 AS 334/11 B). It is already clear from the explanatory memorandum to the law that the legislature was primarily guided by the jurisprudence of the Federal Constitutional Court (Bundestag printed matter 17/3404, pp. 49 ff.).
Furthermore, the Senate refers to the detailed and convincing reasoning of the judgment of the State Social Court of Baden-Württemberg of October 21, 2011 (L 12 AS 3445/11).
2.3 – Berlin-Brandenburg State Social Court, Judgment of 16 February 2012, – L 5 AS 1227/09 –
Based on the Berlin rent index 2007 and the available basic data, the appropriate gross rent excluding utilities for a one-person household is estimated at EUR 305.50
sozialgerichtsbarkeit.de
Note from Willi 2: A state law and ordinance have now been enacted in Berlin. These will come into effect on May 1, 2012. The relevant information can be found here:
www.harald-thome.de (pdf)
2.4 – North Rhine-Westphalia State Social Court, decision of 16 April 2012, – L 19 AS 556/12 B ER –
No assumption of electricity debts if the applicant is at least partly responsible for his situation and has not exhausted all self-help options.
Because she had rejected the installment payment of €200 per month offered by the utility company. Accepting this offer would have been reasonable. The applicant could have used his tax-free allowances from his earned income for the installment payments.
Note by Willi 2: State Social Court of Saxony-Anhalt, decision of 19 May 2011, – L 2 AS 175/11 B ER –
No assumption of rent arrears pursuant to Section 22 Paragraph 8 of the German Social Code, Book II (SGB II), if the landlord has repeatedly and explicitly stated that payment of the rent arrears would not allow the tenant to retain their apartment.
(sozialgerichtsbarkeit.de
2.5 – North Rhine-Westphalia State Social Court, decision of 11 April 2012, – L 19 AS 544/12 B ER –
According to established case law of the Federal Social Court (judgments of 21.06.2011 – B 4 AS 21/10 R,Rn 29 with further references and of 10.05.2011 – B 4 KG 1/10 R,Rn 21ff), the assessment of assistance depends on the actual inflow of available funds.
Claims of a benefit recipient against third parties only count as income to be taken into account within the meaning of Section 9 Paragraph 1 of the German Social Code, Book II (SGB II), if these can be enforced within a reasonable time (Federal Social Court judgment of 10 May 2011 – B 4 KG 1/10 R, paragraph 23 with further references).
This is not the case with a claim for early retirement benefits, as the enforcement of such a claim depends not only on an application by the beneficiary, but also on the processing time of the pension application by the pension insurance institution, particularly due to the necessary examination of other eligibility requirements. Therefore, the timely enforcement of the applicant's claim for early retirement benefits to cover her living expenses during the period in question was not guaranteed.
Section 12a of the German Social Code, Book II (SGB II) also does not constitute grounds for exclusion from benefits. Section 12a SGB II does not provide a basis for rejecting an initial or subsequent application for benefits to secure subsistence under the SGB II by referring to an application for priority benefits (Geiger in LPK-SGB II, 4th ed., § 12a para. 1).
This does not disadvantage the provider of SGB II benefits. Firstly, as the Social Court correctly stated, even in the case of an initial application, it can assert claims for reimbursement under Sections 102 et seq. of the Tenth Book of the Social Code (SGB X) against the primary social security providers – in this case, the pension insurance provider and the social assistance provider.
On the other hand, after the benefit recipient's unsuccessful request to submit an application (cf. regarding the administrative act nature of a request to submit an application pursuant to Section 12a of the German Social Code, Book II: Federal Social Court decision of December 16, 2011 – B 14 AS 138/11 B, para. 5), Section 5 para. 3 sentence 1 of the German Social Code, Book II, grants him the possibility to submit the application himself and, as a statutory representative, to pursue the enforcement of the claims by lodging legal remedies
2.6 – North Rhine-Westphalia State Social Court, decision of 11 April 2012, – L 19 AS 391/12 B –
The landlord is not entitled to reimbursement of additional utility costs from the job center.
The German Social Code, Book II (SGB II), does not provide a legal basis for such a claim.
The provision of Section 22 Paragraph 4 of the German Social Code, Book II (SGB II) as amended up to December 31, 2010, merely grants a landlord a right to payment as the recipient of a benefit under Section 22 Paragraph 1 Sentence 1 of the SGB II; the landlord does not become the holder of the benefit claim under Section 22 Paragraph 1 Sentence 1 of the SGB II for the assumption of costs for accommodation and heating.
2.7 – Saxon State Social Court, decision of 07.12.2009, – L 3 AS 339/09 B PKH –
Unlike safety glasses, normal eyeglasses are not an aid to participation in working life, but a medical aid which falls under the responsibility of the statutory health insurance provider (cf. LSG Rheinland-Pfalz, decision of December 16, 2008 – L 5 B 422/08 AS –, para. 9).
2.8 – Baden-Württemberg State Social Court, Judgment of 23 March 2012, – L 12 AS 3569/11 –
Implementing orders relating to a decision in preliminary legal protection proceedings do not become part of the proceedings pursuant to Section 96 Paragraph 1 of the Social Court Act (SGG), nor do they (partially) supersede the original order. They are merely provisional and cease to have effect upon a final and binding decision in the main proceedings.
If integration agreements by administrative act and by public-law contract are to be regarded as equivalent forms of action, different legal consequences with regard to sanctions under Section 31 SGB II are excluded.
2.9 – State Social Court of Saxony-Anhalt, Judgment of 24 November 2011, – L 2 AS 81/08 –
A lump sum payment for initial apartment furnishings does not have to be so high as to allow for a complete furnishing with new goods.
Referring a recipient to the purchase of used furniture is not objectionable, as it is quite common for people – especially those with lower incomes – to furnish their first apartment with used furniture in order to save money (see Rhineland-Palatinate Higher Social Court, decision of July 12, 2005, file no. L 3 ER 45/05 AS; Dresden Social Court, decision of May 29, 2006, file no. S 23 AS 802/06 ER). Referring the recipient to the possibility of purchasing used furniture is not an (impermissible) exclusion of them, but rather a reference to common, economical behavior.
The aforementioned lump sum of EUR 1,100 (excluding complete flooring) does not contradict other rulings. In its decision of April 13, 2011 (– B 14 AS 53/10 R –), the Federal Social Court (BSG) deemed a lump sum of EUR 1,120 sufficient. This amount already included an additional discretionary lump sum of EUR 50.
2.10 – State Social Court of Saxony-Anhalt, Judgment of 26 January 2012, – L 2 AS 192/09 –
Bridging allowance received after applying for ALG II (unemployment benefit II) for those released from prison is considered income.
For the purposes of classifying something as income or assets, the decisive factor is generally not the point in time when it is earned, but rather when it is realized. The acquisition of a claim does not yet constitute an inflow of funds (cf. Federal Administrative Court, judgment of February 18, 1999 – 5 C 14/98 – NJW 1999, 3137; Federal Social Court, judgment of May 19, 2009 – B 8 SO 35/07 R – FEVS 61, 97; Federal Social Court, judgment of October 28, 2009 – B 14 AS 62/08 R –).
The bridging allowance is calculated from the prisoners' wages in accordance with Section 51 Paragraph 1 of the Prison Act (StrVollzG) to secure the necessary living expenses of the prisoner and their dependents for the first four weeks after their release. This specific purpose does not imply that the bridging allowance is to be considered income regardless of when it is received (see the report on the Federal Social Court (BSG) hearing of October 6, 2011 – B 14 AS 94/10 R).
3. Decisions of the Social Courts on Basic Income Support for Job Seekers (SGB II)
3.1 – Social Court Berlin, Decision of 26 March 2012, – S 96 AS 6145/12 ER –
The exclusion of benefits under Section 7 Paragraph 1 Sentence 2 Number 2 of the German Social Code, Book II (SGB II) is not applicable to Union citizens due to a violation of Article 4 in conjunction with Article 3 Paragraph 3 in conjunction with Article 70 in conjunction with Annex 10 of EC Regulation 883/2004.
3.2 – Social Court Berlin, Judgment of 27 March 2012, – S 110 AS 28262/11 –
For periods from the entry into force of EC Regulation 883/2004 (from 1 May 2010), EU citizens residing in Germany are entitled to unemployment benefit II according to the same standards as Germans, even if their right of residence is based solely on job seeking.
Author of the legal case ticker: Willi 2 from Tacheles
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
