1. Decisions of the Federal Social Court of 28 February 2013 on social assistance (SGB XII)
1.1 – BSG, Judgment of 28.02.2013 – B 8 SO 12/11 R
Incentive payments made by an integration company to a mentally ill person are not considered income that reduces social assistance benefits
According to § 84 SGB XII, donations from independent welfare organizations are disregarded as income, insofar as the donations do not improve the situation of the beneficiary to such an extent that social assistance would be unjustified in addition.
According to Section 5 Paragraph 4 of the German Social Code, Book XII (SGB XII), social welfare agencies should not refrain from providing cash benefits if, in individual cases, corresponding services are provided by independent welfare organizations. Considering motivational payments, which serve the purpose of participation in social and working life, even partially, would contradict these criteria.
1.2 – BSG, Judgment of 28.02.2013 – B 8 SO 1/12 R
Social welfare provider must pay for common room for caregivers – Federal Social Court strengthens employer model under SGB XII.
Disabled and sick people can have the costs for a rest room for their employed caregivers reimbursed by the local social services provider for the necessary home care.
If housing costs necessarily arise in connection with care services provided, and if the content of the service—as in the legally privileged employer model, the specific details of which must generally be left to the person receiving care—is covered by the regulations governing care benefits, then, due to the necessary link between proportionate housing costs and care, the objective of the benefit requires the application of the more favorable provisions regarding the consideration of income under Sections 85 et seq. of the German Social Code, Book XII (SGB XII).
juris.bundessozialgericht.de
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See also: Federal Social Court strengthens employer model under SGB XII.
2. Decision of the Federal Social Court on the child supplement
2.1 – BSG, Judgment of 14 March 2012 – B 14 KG 1/11 R
When assessing eligibility for the child supplement, the actual costs of accommodation must be taken into account.
3. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
3.1 – Bavarian State Social Court, decision of 07.01.2013 – L 7 AS 832/12 B PKH
A commitment regarding the costs of future housing pursuant to Section 22 Paragraph 4 of the German Social Code, Book II (SGB II) serves the purpose of providing the individual with clarity about the future coverage of the costs of the new apartment before a move. It is not a prerequisite for receiving ongoing benefits.
If the move occurs without prior assurance, there is no legal basis for a lawsuit seeking the subsequent issuance of such assurance. The assurance's informative and warning function becomes ineffective. Reasonable housing costs will be determined as part of the approval or denial of ongoing benefits.
Note:
See Federal Social Court (BSG), judgment of April 6, 2011 – B 4 AS 5/10 R.
The legal interest in obtaining a separate assurance as a preliminary partial ruling for the assumption of reasonable accommodation costs due to the fundamental necessity of the move ceases to exist if, due to a change of residence that has since taken place, the subject matter of a possible assurance is now to be decided in separate legal proceedings concerning the amount of accommodation costs.
3.2 – Bavarian State Social Court, decision of 20 December 2012 – L 7 AS 862/12 B ER
An administrative act concerning integration pursuant to Section 15 Paragraph 1 Sentence 6 of the German Social Code, Book II (SGB II) is immediately enforceable pursuant to Section 39 No. 1 of the SGB II. Preliminary legal protection against obligations arising from the administrative act concerning integration must be sought by filing an application for an order suspending its enforcement pursuant to Section 86b Paragraph 1 No. 2 of the German Social Courts Act (SGG).
The affected party requests that the court temporarily suspend the obligations arising from the integration administrative act, thereby preventing sanctions under Sections 31 et seq. of the German Social Code, Book II (SGB II). However, the contested decision does not include any sanctions. The affected party is therefore seeking preventive legal protection against potentially enacted sanctions.
For preventive legal protection, a qualified legal interest is required, which includes, in particular, that the affected party cannot be referred to subsequent legal remedies. Subsequent legal remedies against the sanction are regularly possible and sufficient. Preliminary legal protection is generally not intended to answer legal questions unrelated to a present emergency.
3.3 – Bavarian State Social Court, Judgment of 21.01.2013 – L 7 BK 5/12, Appeal allowed.
Even with regard to the child supplement pursuant to Section 6a BKGG, a temporary household of parents and their child must be taken into account.
Instructions for calculating the child supplement in the case of a temporary household receiving benefits.
Furthermore, the child supplement is based on the actual expenses for accommodation and heating. A reduction according to Section 22 Paragraph 1 Sentence 3 of the German Social Code, Book II (SGB II) does not apply.
sozialgerichtsbarkeit.de
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Federal Social Court (BSG), judgment of March 14, 2012 – B 14 KG 1/11 R
When assessing eligibility for the child supplement, the actual costs of accommodation must be taken into account.
3.4 – Bavarian State Social Court, Judgment of 21 January 2013 – L 7 BK 8/12
Additional expenses for the midday meal of pupils are covered under Section 28 Paragraph 6 SGB II and Section 6b BKGG so that they can participate in the social life of the school community.
The costs of self-organized lunches for students cannot be covered for either religious or health reasons.
A payment of the additional costs to the claimant is also excluded due to § 29 SGB II, which only permits personalized vouchers or direct payments.
3.5 – Bavarian State Social Court, Judgment of 16 January 2013 – L 11 AS 583/10
1. If a revocation notice contains a revocation of an administrative act with effect for both the past and the future, the requirements of Section 48 Paragraph 1 Sentence 2 of the German Social Code, Book X (SGB X) must be met for the period relating to the past. If these requirements are not met, it must be examined whether the part of the revocation notice relating to the future fulfills the requirements of Section 48 Paragraph 1 Sentence 1 of the German Social Code, Book X (SGB X).
2. The criterion for distinguishing between the future and the past within the meaning of Section 48 of the German Social Code, Book X (SGB X), is the notification of the revocation notice. The future, within the meaning of Section 48, paragraph 1, sentence 1 of the SGB X, begins on the day after notification.
3. The 3-day fiction of Section 37 Paragraph 2 of the German Social Code, Book X (SGB X) regarding the notification of a written administrative act transmitted by mail does not apply if the postage due notice is merely affixed by a case worker without the case worker actually sending the administrative act to the post office or placing it in a mailbox.
4. Employable benefit recipients who cannot regularly reach the job center from their current location, which is outside their place of residence, within 75 minutes using the means of transport available to them, are considered to be outside the area of proximity in terms of time and location within the meaning of Section 7 Paragraph 4a of the German Social Code, Book II (SGB II). If the benefit recipient only returns to their place of residence on very isolated days, and these days are unknown to the job center and cannot be specifically clarified, the exclusion from benefits applies continuously.
5. A provisional revocation of a revocation order based on Section 328 Paragraph 1 Sentence 1 Number 3 of the German Social Code, Book III (SGB III) in conjunction with Section 40 Paragraph 1 Sentence 2 Number 1a of the German
Social Code, Book II (SGB II), following a court order suspending the effect of an action against the revocation order, is unlawful. The reservation of provisionality can be lifted separately, so that a final revocation remains in effect. sozialgerichtsbarkeit.de
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Bavarian State Social Court, 11th Senate, Judgment of February 2, 2012 – L 11 AS 853/09.
An exclusion from benefits pursuant to Section 7 Paragraph 4a of the German Social Code, Book II (SGB II) does not apply if the benefit recipient resides within the local area. Daily postal accessibility is not a requirement. Availability, as required by Section 119 Paragraph 5 of the German Social Code, Book III (SGB III) for entitlement to unemployment benefits, is not a prerequisite for receiving unemployment benefit II.
3.6 – Berlin-Brandenburg State Social Court, Judgment of 21 November 2012 – L 18 AS 59/11
If a qualified rent index exists – as is the case here for Berlin – it can generally be assumed that an apartment is available at the price per square meter appropriate according to the rent index (cf. BSG, judgment of 13 April 2011 – B 14 AS 32/09 R –; judgment of 13 April 2011 – B 14 AS 106/10 R).
Finally, the length of residence, the age of the plaintiffs and their continued presence in the social environment are not decisive factors (cf. BSG, judgment of April 13, 2011 – B 14 AS 32/09 R).
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Specifically for Berlin, the Federal Social Court has ruled that if a qualified rent index exists with corresponding scientifically sound findings on the housing stock, it can be assumed that an apartment is available at the price per square meter appropriate according to the rent index (BSG, Judgment of 13.04.2011 – B 14 AS 32/09 R; cf. LSG Berlin-Brandenburg, Judgment of 10.05.2012 – L 32 AS 741/11).
3.7 – Berlin-Brandenburg State Social Court, decision of 10 December 2012 – L 18 AS 3108/12 B PKH
1. In the case of reimbursement claims pursuant to Section 328 Paragraph 3 Sentence 2 of the German Social Code, Book II (SGB II), Section 40 Paragraph 2 Sentence 1 of the German Social Code, Book II (SGB II) (now Section 40 Paragraph 4 Sentence 1 of the German Social Code, Book II (SGB II)) does not apply.
2. The limitation of liability for minors in Section 1629a of the German Civil Code also applies in reimbursement proceedings (cf. regarding a claim for reimbursement under Section 50 of the German Social Code, Book X, Federal Social Court, judgment of July 7, 2011 – B 14 AS 153/10 R = SozR 4-4200 § 38 No. 2).
However, until the still minor reaches the age of majority, liability is unlimited.
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The Federal Social Court (BSG), in its judgment of August 23, 2012 – B 4 AS 169/11 R,
held that Section 40 Paragraph 2 Sentence 1 of the German Social Code, Book II (SGB II) (the predecessor provision of Section 40 Paragraph 4 Sentence 1 SGB II) is not applicable by analogy to the reimbursement of provisionally granted benefits under Section 40 Paragraph 1 Sentence 2 Number 1a SGB II (SGB II) (SGB II) in conjunction with Section 328 Paragraph 3 Sentence 2 SGB III.
There is no unintended regulatory gap, as a beneficiary of a provisional benefit grant who is ultimately rejected for benefits to secure their livelihood under SGB II can subsequently apply for housing benefit in accordance with Section 25 Paragraph 3 Sentence 1 in conjunction with Section 7 Paragraph 1 Sentence 1 Number 1 of the Housing Benefit Act.
3.8 – State Social Court of Saxony-Anhalt, Judgment of 13 December 2012 – L 5 AS 21/09
Default interest owed to the lending bank is not considered housing costs within the meaning of Section 22 Paragraph 1 of the German Social Code, Book II (SGB II). (
sozialgerichtsbarkeit.de
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Similarly – Baden-Württemberg State Social Court, judgment of May 22, 2012 – L 13 AS 3212/11
3.9 – State Social Court of Saxony-Anhalt, decision of 18 December 2012 – L 5 AS 30/11 B
If the inheritance occurred during the ongoing receipt of benefits under the German Social Code, Book II (SGB II), and there has been no interruption in the receipt of benefits since then, the increase resulting from the inheritance constitutes income within the meaning of Section 11 Paragraph 1 Sentence 1 of the SGB II (see Federal Social Court (BSG), judgment of October 28, 2009, file no.: B 14 AS 62/08 R, paragraphs 21, 22; judgment of January 25, 2012, file no.: B 14 AS 101/11 R, paragraph 18).
Note:
Federal Social Court (BSG) ruling of February 24, 2011, – B 14 AS 45/09 R –
If a recipient of benefits under Book II of the German Social Code (SGB II) receives money from an inheritance where the inheritance (i.e., the death of the testator) occurred before the commencement of benefits, then this is considered assets, not income. This also applies if the actual receipt of the money occurs later.
3.10 – Hessian State Social Court L 6 AS 817/12 B 01.02.2013
1. The legal question of whether the crediting of parental allowance received against benefits under the German Social Code, Book II (SGB II) pursuant to Section 11 Paragraph 1 Sentence 1 SGB II in the version applicable here from January 1, 2011, is constitutional appears, in view of the case law of the Federal Constitutional Court, to no longer require clarification.
2. The question of the constitutionality of standard benefit rates is a difficult legal issue that has not yet been definitively settled by the highest court (see also the decisions of the Higher Social Court of North Rhine-Westphalia of May 31, 2012 – L 12 AS 1862/11 B, of July 12, 2012 – L 7 AS 813/12 B, and of August 6, 2012 – L 19 AS 734/12 B; and the Higher Social Court of Hesse of November 6, 2012 – L 6 AS 469/12 B). While the Federal Social Court has issued a ruling on July 12, 2012 – B 14 AS 189/11 R – regarding the constitutionality of Sections 19 Paragraph 1 Sentence 1, 20 Paragraph 1 and Paragraph 2 Sentence 1 of the German Social Code, Book II (SGB II), this ruling is not yet definitively settled. Ultimately, however, the Federal Constitutional Court will have to decide whether the legislator has met the high requirements it postulated for determining and justifying the standard needs, taking into account the scope for discretion.
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Regarding point 1, see also – Berlin-Brandenburg State Social Court, decision of 22 October 2012 – L 14 AS 1607/12 NZB –
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Regarding point 2, it should be mentioned that the constitutional complaint against the judgment of the Federal Social Court (BSG) of July 12, 2012 – B 14 AS 153/11 R concerning the amount of the standard benefit was not accepted for decision (Federal Constitutional Court, 1st Senate, 3rd Chamber, of November 20, 2012 – 1 BvR 2203/12).
4. Decisions of the Social Courts on Basic Income Support for Job Seekers (SGB II)
4.1 – Social Court Hildesheim, Judgment of 04.01.2013 – S 15 AS 1325/11
The job center must pay the family higher rent because the method used to determine the price per square meter does not meet the requirements of a coherent concept as prescribed by social law.
For example, there was a lack of verifiable information about the standards these apartments met.
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The job center of the district of Northeim has now suffered a defeat before the Hildesheim Social Court.
4.2 – Social Court Berlin, decision of 10 January 2013 – S 205 AS 26758/12 ER
1. Upon summary review, Section 6 Paragraph 7 of the WAufwV BE is not covered by the enabling provision of Section 22b of the Second Book of the Social Code (SGB 2).
2. In any case, Section 6 Paragraph 7 of the WAufwV BE (Bavarian Housing and Care Ordinance) must be interpreted teleologically to mean that the reimbursement of expenses for accommodation and heating in the actual amount is also excluded if the beneficiary can rent a "regular" apartment even without the involvement of the body mentioned in the ordinance.
4.3 – Social Court Lüneburg, decision of 11.02.2013 – S 45 AS 50/13 ER
The job center must cover the costs of a commercially organized move for a Hartz IV recipient suffering from several health limitations.
The authorities may not refer to the help of friends and acquaintances in the abstract when a person is moving.
www.rechtsprechung.niedersachsen.de
4.4 – Oldenburg Social Court, Judgment of 13 November 2012 – S 48 AS 1104/12
Costs of visitation rights § 21 para. 6 SGB II – Recipients of basic income support are entitled to reimbursement of costs for four visits per month with their child.
Short news item on “Commentary on the judgment of the Social Court Oldenburg of 13.11.2012, file no.: S 48 AS 1104/12 (Costs of visitation rights)” by attorney Michael Grübnau-Riecken, LL.M., originally published in: NZS 2013 issue 4, 153 – 154.
This article was written by Ass. jur. Christine Bonke-Heseler.
www.verwaltungspraxis.jurion.de
5. Decisions of the State Social Courts on Social Assistance (SGB XII)
5.1 – Hessian State Social Court, decision of 09.11.2010 – L 7 SO 134/10 B ER
1. Rent arrears pursuant to Section 34 of the German Social Code, Book XII (SGB XII a.F.) are not to be covered if it is foreseeable that the apartment cannot be retained in the future. This is to be assumed if the rent exceeds the reasonable limit pursuant to Section 29 Paragraph 1 Sentence 2 of the German Social Code, Book XII (SGB XII a.F.) and the person in need of assistance will not be able to cover the excess amount from their standard allowance for personal or financial reasons.
2. Under the conditions of point 1, maintenance assistance for the previous apartment is also excluded in accordance with § 67 SGB XII.
3. Whether assistance is to be granted in accordance with Section 67 of the German Social Code, Book XII (SGB XII) for the procurement of another dwelling must be decided separately.
Note:
BSG, Judgment of 15 November 2012 – B 8 SO 22/10 R
The conceivable legal bases for entitlement to the procurement of accommodation in the SGB XII (§§ 67, 68, 11 SGB XII) provide for the right to the procurement of accommodation.
6. Decisions of the State Social Courts on Asylum Law
6.1 – Bavarian State Social Court, decision of 18 January 2013 – L 8 AY 5/12 ER
1. Regarding the reduction of the cash amount or the admissibility of restricting benefits to what is absolutely necessary, according to the decision of the Federal Constitutional Court of 18 July 2012.
2. On the question of whether migration policy considerations do not justify a reduction in the standard of living below the physical and socio-cultural minimum standard of living from the outset.
3. The suspension of enforcement within the meaning of Section 199 Paragraph 2 Sentence 1 of the Social Court Act (SGG) requires special circumstances (Bavarian State Social Court [BayLSG] of 17 September 2010, Case No.: L 8 AS 650/10 ER; 10 May 2010, Case No.: L 14 R 880/09 R; 3 March 2010, Case No.: L 20 R 924/09 R; 17 December 2009, Case No.: L 19 R 936/09 ER).
4. An application for suspension by a basic income support provider ordered to provide benefits to secure subsistence under SGB II/SGB XII can only in rare cases lead to the temporary non-granting of awarded subsistence benefits by way of Section 199 Paragraph 2 (Bay LSG 08.02.2006, L 10 AS 17/06 ER).
5. An order in basic income support proceedings based on a balancing of interests and consequences is inherently based on a prognosis, and it is rare to assume such an extreme degree of incorrectness in the contested decision as would be necessary to avert the legally mandated effect anyway (§ 175 SGG).
sozialgerichtsbarkeit.de
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similarly to point 1 – SG Hildesheim, decision of 06.12.2012 – S 42 AY 152/12 ER and SG Altenburg, decision of 11 October 2012 – S 21 AY 3362/12 ER – No reduction of the cash amount.
7. On February 21, 2013, the German Bundestag passed an amendment to the Education and Participation Package.
The draft bill dated January 9, 2013, can be found here:
dipbt.bundestag.de (pdf)
8. Are the invitations from the job centers invalid?
Nuremberg – On March 14, 2013, the Nuremberg Social Court will decide in case S 10 AS 679/10 whether those affected must comply with invitations from job centers – in this case, the Nuremberg-City Job Center. These invitations could be invalid and unlawful, meaning that those affected do not have to comply with them, or that the job centers would have to revoke them in the appeal process.
standpunkte.blogsport.de
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Regarding the granting of legal aid, the letter requesting the report raises concerns insofar as a purpose for the report is not specified (cf. LSG NRW, decision of 13.07.2007 – L 20 B 114/07 AS).
For the German Social Code, Book III (SGB III), it is widely accepted that the specific purpose of the report must be stated, at least in brief. Otherwise, a grace period is not applicable (see Baden-Württemberg State Social Court, judgment of September 27, 2002, L 8 AL 855/02 with further references). This legal question has not yet been clarified, at least not for the German Social Code, Book II (SGB II) (see, however, Hamburg State Social Court, decision of February 13, 2007, L 5 B 43/07 ER AS; Münster Social Court, decision of September 18, 2006, S 3 AS 136/06 ER).
Author of the legal case ticker: Willi 2 from Tacheles
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
