1. Decisions of the Federal Social Court of April 2, 2014, on Basic Income Support for Job Seekers (SGB II)
1.1 – Federal Social Court, Judgment of April 2, 2014 – B 4 AS 29/13 R
Basic Income Support for Job Seekers – Application for unemployment benefits under SGB III does not generally include an application for unemployment benefit II – no retroactive benefit payment – no social law restitution
Key Principles (Author)
An application for unemployment benefits under SGB III does not generally include an application for unemployment benefit II. Likewise, the submitted application for benefits to secure subsistence under SGB II – as a subsequent application within the meaning of Section 28 of SGB X – does not have retroactive effect on the application date. The social law restitution claim also does not help the applicants to succeed in their request.
Source: juris.bundessozialgericht.de
2. Decisions of the Federal Social Court of 27 May 2014 on social assistance (SGB XII)
2.1 – BSG, Judgment of 27 May 2014 – B 8 SO 1/13
Guiding principle (author):
Social welfare offices may not charge interest on benefits that they grant to social assistance recipients as loans.
If a social welfare agency must grant social assistance in the form of a loan due to a lack of immediate access to existing assets (§ 89 BSHG or, since January 1, 2005, § 91 SGB XII) and approves this loan by administrative act, it is not entitled to charge additional interest.
Source: juris.bundessozialgericht.de
Note 1:
The Social Court of Freiburg (SG Freiburg) held the same view in its judgment of July 25, 2011, S 9 SO 771/09, and Wahrendorf (in: Grube/Wahrendorf, SGB XII, 3rd ed. 2010, § 91 para. 15) – No interest on a loan pursuant to § 91 SGB XII.
Note 2:
No interest on social assistance granted as a loan, an article by the lawyers of “Social Law in Freiburg”: www.sozialrecht-in-freiburg.de
3. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
3.1 – Bavarian State Social Court, decision of 29 April 2014 – L 7 AS 260/14 B ER
Legal protection in the area of basic income support for job seekers under the German Social Code, Book II (SGB II), is available against enforcement proceedings even in the case of a legally binding reimbursement and recovery order.
Guiding principles (Juris)
: 1. Legal protection against enforcement proceedings is available even in the case of a legally binding decision.
2. The main customs offices are the enforcement authorities for decisions under the German Social Code, Book II (SGB II), Section 40 Paragraph 6 SGB II in conjunction with Section 66 SGB X. Legal protection against measures taken by the enforcement authorities is available through the financial court system.
3. Enforcement authorities under the German Social Code, Book II (SGB II), are the Jobcenter as the issuing authority or, following a corresponding transfer of responsibilities pursuant to Sections 44b and 44c of the SGB II, the Federal Employment Agency with regard to debt collection. Legal recourse is available through social court proceedings.
4. An application for a waiver pursuant to Section 44 of the German Social Code, Book II (SGB II) can render the enforcement of a legally binding recovery order temporarily inadmissible.
5. A review application pursuant to Section 44 of the German Social Code, Book X (SGB X) can temporarily render the enforcement of a legally binding decision inadmissible.
Source: sozialgerichtsbarkeit.de
3.2 – Bavarian State Social Court, Judgment of 23 April 2014 - L 11 AS 512/13
Legal Principles (Juris):
The legal consequences information in a mediation proposal is incorrect if it refers to a previously committed breach of duty that was subsequently overturned and the resulting loss of unemployment benefit II, but then only establishes a 60% reduction due to the overturning of the previous sanction notice. This is not a case of mere over-information.
Source: socialcourtsability.de
Note:
In the same direction, see LSG Bayern, judgment of 23.04.2014 – L 11 AS 410/13
3.3 – Higher Social Court of Saxony-Anhalt, Decision of February 18, 2014 – L 5 AS 63/14 B ER – legally binding.
Principle (Author):
A Romanian national is entitled to provisional approval of unemployment benefit II (ALG II) within the framework of the balancing of interests (similarly, decisions of the 5th Senate of the Higher Social Court of Saxony-Anhalt of February 26, 2013 (L 5 AS 32/13 B ER and L 5 AS 33/13 B) as well as of March 4, 2013 (L 5 AS 6/10 B ER and L 5 AS 7/13 B).
Source: sozialgerichtsbarkeit.de
3.4 – Higher Social Court of Saxony, Judgment of March 13, 2014 – L 3 AS 249/11 – The appeal is granted.
Regarding the question of the division of a tax refund and the crediting of an insurance allowance in the case of jointly assessed spouses where only one spouse has earned taxable income.
Guiding Principles (Author):
A tax refund cannot be divided between both spouses as income to be considered under Section 11 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), if the credit underlying the tax refund is based solely on advance payments made by one spouse. This is the case, at least, if only one spouse has earned income from employment and the tax refund is based on an excessive withholding of tax from their wages as part of the payroll tax deduction procedure. In this case, the tax refund can be unequivocally attributed to one of the spouses. The fact that the spouses were jointly assessed pursuant to Section 26b of the German Income Tax Act (EStG) does not alter this.
However, the tax refund cannot be considered "other income" not only for applicant 2, but also for applicant 1. Therefore, the deduction of an insurance allowance as defined in Section 6 Paragraph 1 No. 1 of the ALG II-V (Regulation on Unemployment Benefit II) is not applicable to applicant 1.
Source: sozialgerichtsbarkeit.de
Note:
The Federal Employment Agency's (BA) knowledge database on the German Social Code, Book II (SGB II) – WDB entry no.: 110103 – www.arbeitsagentur.de –
3.5 – North Rhine-Westphalia State Social Court, decision of 20.05.2014 – L 2 AS 2105/13 B – legally binding
granting of legal aid on the question of whether the funds received by the applicant due to the care of a third person are to be taken into account as reducing income.
Guiding Principles (Author)
The Federal Fiscal Court's requirement that the care of a non-relative corresponds to a moral imperative must be answered taking into account all circumstances of the individual case (Federal Fiscal Court, judgment of 19.08.1996 – III R 4/95) also applies to the present social law question of income exemption.
However, it is incumbent upon the applicant to demonstrate that the assumption of care corresponded to a moral obligation within the meaning of Section 3 No. 36 of the German Income Tax Act (EStG) and was of such a nature that it appeared as a demand or at least an expectation of society, similar to a legal obligation imposed from the outside, in such a way that failure to do so could result in disadvantages in the moral or societal sphere.
The previous statements, such as the claim that the person in need of care and the applicants grew up like siblings, that he is like a relative and has done a lot for them, lack substance.
Source: sozialgerichtsbarkeit.de
3.6 – North Rhine-Westphalia State Social Court, Judgment of 30 January 2014 – L 6 AS 1667/12
The legal basis for claiming a higher additional allowance for hot water preparation is Section 21 Paragraph 7 of the German Social Code, Book II (SGB II)
Guiding Principles (Author):
A need deviating from the standard allowances within the meaning of the opening clause of Section 21 Paragraph 7 Sentence 2 Half-Sentence 2 of
the German Social Code, Book II (SGB II), cannot be established. Personal circumstances of the recipients of assistance that deviate from the norm, or technical peculiarities, are not the decisive criterion for whether benefits exceeding the flat-rate allowances are provided. According to the Federal Social Court's (BSG) case law on the consideration of heating costs, such circumstances do provide indications that higher expenses than reasonable can be taken into account (see Higher Social Court of North Rhine-Westphalia (LSG NRW), decision of May 28, 2013 – L 9 AS 540/13 B). However, this does not absolve the authorities from first determining whether higher expenses exist. Only then does the examination of whether these expenses are reasonable follow. It is only in this context that the specific circumstances of the individual case can be considered.
The conditions for granting an additional allowance exceeding €8.00 and €7.00 for both applicants, as stipulated in the so-called opening clause of Section 21 Paragraph 7 Sentence 2 Half-Sentence 2 of the German Social Code, Book II (SGB II), are not met. According to this provision, higher amounts may be granted if higher actual costs for hot water preparation can be proven, as the flat rates do not contain legally defined limits of reasonableness but are only applied when the hot water production costs cannot be specifically determined due to a lack of appropriate technical equipment.
Source: sozialgerichtsbarkeit.de
3.7 – North Rhine-Westphalia State Social Court, decision of 20 May 2014 – L 2 AS 626/14 B ER – legally
binding integration benefit – funding from the placement budget – costs for acquiring a Class B driver's license – existence of a hiring commitment dependent on possession of the driver's license – discretion reduced to zero.
In principle, a mere promise of employment from an employer does not lead to the job center covering the costs of a driver's license.
Guiding Principles (Author)
The principle that in all cases where an employer has made a hiring commitment that depends on possession of a driver's license, and where the indigent applicant cannot even partially cover the costs of obtaining a driver's license from their own resources, there is a reduction of discretion to zero (seemingly in this direction the Lower Saxony-Bremen State Social Court, decision of October 13, 2011 – L 15 AS 317/11 B ER) cannot be accepted.
In exercising discretion, the purposes of Section 44 of the German Social Code, Book III (SGB III), the circumstances of the individual case, and the specific characteristics of the applicant's interests and life situation must be considered in accordance with Section 39 Paragraph 1 Sentence 1 of the German Social Code, Book I (SGB I). Finally, fiscal interests in the form of a lawful prioritization of the use of the placement budget are not excluded. For this reason alone, establishing a general principle for reducing discretion to zero appears questionable (the mere existence of a promise is also insufficient: Higher Social Court for the State of North Rhine-Westphalia, Decision of November 5, 2010 – L 19 AS 1684/10 B; Higher Social Court of Saxony, Decision of October 26, 2012 – L 3 AS 678/12 B ER; Higher Social Court of Saxony-Anhalt, Decision of January 14, 2013 – L 5 AS 795/12 B ER).
Particularly with regard to benefits from the placement budget, such as the costs of obtaining a driver's license, the decision regarding funding must examine whether these are general expenses that everyone must bear and which are included in the standard allowance for recipients of benefits under the German Social Code, Book II (SGB II), and whether there are alternatives to these costs, such as using public transportation instead of a car. The job center has demonstrated such alternatives in this case. The applicant has not explained why applying for or performing the job for which a driver's license is not a requirement is not possible or reasonable.
The applicant does not face permanent exclusion from the labor market (regarding possible referral to other jobs: Saxony-Anhalt State Social Court, decision of January 14, 2013 – L 5 AS 795/12 B ER). The fact that a driver's license would be helpful for professional integration cannot establish an entitlement for the applicant (see Hamburg State Social Court, May 21, 2010 – L 5 AS 79/09).
Source: socialcourtsability.de
4. Decisions of the Social Courts on Basic Income Support for Job Seekers (SGB II)
4.1 – Social Court Leipzig, Decision of 28 May 2014 – S 3 AS 1885/14 ER
Obligation of the basic income support provider to guarantee the expenses for the new apartment through preliminary legal protection
An obligation on the part of the authority to issue an assurance within the meaning of Section 22 Paragraphs 4 and 6 of the German Social Code, Book II (SGB II), is also possible in preliminary legal protection proceedings.
Guiding Principles (Author):
While a decision in preliminary legal proceedings may not, in principle, prejudge the main issue, which is precisely what happens here when the basic income support provider is obligated under Book II of the German Social Code (SGB II) to issue the assurance, this cannot mean, due to the guarantee of legal protection under Article 19 Paragraph 4 of the Basic Law (GG), that preliminary legal protection is impossible for assurances within the meaning of Section 22 Paragraphs 4 and 6 of Book II of the German Social Code (SGB II).
The principle of prohibiting prejudging the merits of the case must be waived if the guarantee of effective legal protection under Article 19 Paragraph 4 of the Basic Law so requires. Preliminary legal protection for an assurance of the present kind is not generally excluded, but extremely high standards must be applied to the claim for and grounds for the injunction. These high standards are met in view of the relevance of the values increased by 10% under Section 12 of the Housing Cost Ordinance (WoGO) and the fact that the applicant's divorce from her husband, who owns the home she currently occupies, is imminent and her future whereabouts are uncertain. Furthermore, the City of Leipzig, Department of Social Housing Assistance, has confirmed in writing that no apartments are available to the applicant at the standard rates.
Furthermore, there is no need for legal protection for a merely provisional assurance subject to a different decision in the main proceedings, because such an assurance does not put the person concerned in a better position with regard to the certainty of the assumption of the costs for the new accommodation than if it were not given at all (cf. Section 22 Paragraph 2 SGB II old version: LSG Mecklenburg-Vorpommern, decision of 28.10.2008 – L 8 B 299/08; contra: Sächsisches Landessozialgericht, decision of 23.01.2014 – L 7 AS 1826113 B ER; Bayerisches LSG, decision of 27.06.2013 – L 7 AS 330/13 8 ER).
Without an obligation on the part of the job center within the framework of preliminary legal protection, there would be a risk that the apartment would no longer be available due to being allocated to someone else (cf. Saxon State Social Court, decision of 23.01.2014 – L 7 AS 1826/13 B ER).
If doubts exist regarding the plausibility of the concept, the upper limit of what is considered reasonable according to the table value in Section 12 of the Housing Benefit Act (WoGG) – right-hand column – can be used as a basis in preliminary legal proceedings (Saxony Higher Social Court, decision of April 5, 2012 – L 7 AS 425/11 B ER). A safety margin of 10% must be added to this amount (Federal Social Court, judgment of December 12, 2013 – B 4 AS 87/12 R).
The author has a copy of the decision.
4.2 – Potsdam Social Court, judgment of 26.03.2014 – S 38 AS 1542/13 WA – Appeal pending before the Higher Social Court of Brandenburg under file number L 19 AS 1251/14.
There is no legal basis for directly crediting sublet rent against the need for accommodation and heating.
Guiding Principles (Author)
: Subletting income is to be counted towards the standard benefit payment from the employment agency. A flat rate of €30.00 is to be deducted as a contribution for private insurance – the so-called insurance allowance.
The view held by some voices in the literature, that income from subletting can be allocated to the need for accommodation due to the wording of Section 22 Paragraph 1 Sentence 3 of the German Social Code, Book II (SGB II) in its former version, in deviation from Section 19 Sentence 3 of the German Social Code, Book II (SGB II) in its former version (see Berlit in LPK-SGB II, 5th edition 2013, Section 22, marginal note 24; Lauterbach in Gagel, SGB II/SGB III, 52nd supplementary delivery 2014, Section 22, marginal note 18), is not convincing in this respect.
An official directive from the social security provider does not justify a deviation from the provisions of the German Social Code, Book II (SGB II), as interpreted by the job center regarding the crediting of income.
Source: sozialgerichtsbarkeit.de
Note:
Left open by the Federal Social Court (BSG) in its judgment of 29 November 2012 – B 14 AS 161/11 R, para. 19.
4.3 – Social Court Dortmund, Judgment of 14 April 2014 – S 32 AS 4882/12
Italian national is entitled to SGB II benefits – refusal decision according to § 66 SGB I – The assurance according to § 22 para. 4 SGB II is only relevant for cases in which the move has not yet been completed.
Guiding principles (author):
If a positive determination of a right of residence is not possible (solely) for the purpose of job seeking – which is the case in any event and especially if another right of residence can be positively determined under the Freedom of Movement Act/EU – the exclusion of benefits does not apply as a matter of fact.
The exclusion from benefits is not "compliant with EU law" and therefore inapplicable due to the primacy of European secondary law (see, most recently, the decision of the Social Court of Dortmund of February 12, 2014 – S 32 AS 5677/13 ER).
In summary, it must be stated that "the provision of Section 7 Paragraph 1 Sentence 2 No. 2 of the German Social Code, Book II (SGB II), which is based solely on the applicant's status as a foreigner, cannot be justified under the standard of Article 70 in conjunction with Article 4 of Regulation (EC) No 883/2004 and Article 24 Paragraph 2 of Directive 2004/38/EC with regard to the applicants' legal status; it remains inapplicable due to the primacy of EU law" (as stated verbatim in the decision of the Higher Social Court of Hesse of September 30, 2013 – L 6 AS 433/13 B ER).
A refusal decision pursuant to Section 66 of the German Social Code, Book I (SGB I) does not have the effect of a rejection decision on a renewed application for benefits (settlement of the previous rejection notice for the period covered by the rejection notice issued on the new application pursuant to Section 39 Paragraph 2 of the German Social Code, Book X (SGB X) without simultaneous applicability of Sections 86 and 96 of the German Social Courts Act (SGG); cf. Federal Social Court (BSG), judgment of December 11, 2007 – B 8/9b SO 12/06 R; Federal Social Court (BSG), judgment of October 31, 2007 – B 14/11b AS 59/06 R).
Due to the inapplicability of Section 39 SGB II, the objection against the refusal notice (Section 66 SGB I) has suspensive effect.
The existence of an assurance pursuant to Section 22 Paragraph 4 of the German Social Code, Book II (SGB II) regarding the amount of an entitlement to the assumption of housing costs is not constitutive (cf. regarding Section 22 Paragraph 2 SGB II, old version, Federal Social Court (BSG), judgment of November 22, 2011 – B 4 AS 219/10 R). If the recipient of benefits to secure their livelihood under the SGB II considers the assessment of the appropriateness of the costs made by the basic income support provider to be incorrect, the dispute must be resolved directly by addressing the question of which actual housing expenses are to be considered appropriate or – despite being deemed inappropriate – continue to be covered pursuant to Section 22 Paragraph 1 Sentence 3 SGB II (cf. Federal Social Court (BSG), judgment of November 22, 2011 – B 4 AS 219/10 R). The rejection of an assurance constitutes a declaratory administrative act pursuant to Section 31 of the German Social Code, Book X (SGB X), stating that the intended move is not necessary and/or the costs of the new apartment are not reasonable, and that the applicant therefore has no entitlement to the requested assurance (see Federal Social Court (BSG), judgment of April 6, 2011 – B 4 AS 5/10 R). However, as soon as the move has (nevertheless) been carried out, such a declaratory administrative act becomes moot "in another way" pursuant to Section 39 Paragraph 2 of the SGB X (see Higher Social Court of North Rhine-Westphalia (LSG NRW), decision of March 8, 2012 – L 19 AS 2025/11 B).
Source: sozialgerichtsbarkeit.de
4.4 – Social Court of Regensburg, decision of December 6, 2013 (Case No. S 3 AS 650/13 ER)
Guiding principle by lawyer and specialist lawyer for social law Mathias Klose:
The objection against a refusal notice/withdrawal notice (§ 66 I SGB I) also has suspensive effect in the area of basic income support for job seekers under the SGB II.
This also applies if benefits under Book II of the German Social Code (SGB II) are denied/withdrawn, which the job center had granted in implementation of a previous social court decision by which it was obligated in principle to grant benefits; the decision implementing the previous social court decision also constitutes an administrative act.
If the basic income support provider disputes the suspensive effect, the social court can determine, by way of preliminary legal protection, that the objection has suspensive effect.
If the administrative act has already been executed at the time of the decision, meaning that the SGB II benefits have not been paid despite an objection, the social court can order the enforcement to be suspended.
Source: www.ra-klose.com
4.5 – Hildesheim Social Court, Judgment of April 4, 2014 – S 15 AS 531/12 – The appeal is granted.
Heating costs, hot water share
Guiding Principles (Author):
The application of the values in Section 21 Paragraph 7 Sentence 2 Numbers 1-4 of the German Social Code, Book II (SGB II) to determine reasonable costs for hot water preparation is unlawful. This is because these values do not represent a threshold value, the exceeding of which would indicate unreasonable costs.
The job center fails to recognize that, according to Section 22 Paragraph 1 Sentence 1 of the German Social Code, Book II (SGB II), a specific, individual standard applies for determining reasonable limits, and that a flat-rate calculation is inadmissible (see Federal Social Court, Judgment of July 2, 2009 – B 14 AS 36/08 R). However, the job center is precisely applying such a flat-rate calculation by using the values according to Section 21 Paragraph 7 Sentence 2 Numbers 1-4 of the SGB II, irrespective of the individual case. Instead, a determination based on the age-dependent daily hot water consumption required and the local costs for hot water preparation is necessary. The values according to § 21 para. 7 sentence 2 no. 1-4 SGB do not guarantee this (cf. Eckhardt, “On the question of the appropriateness of energy costs for the preparation of hot water in SGB II”, Info also 2012, issue 5, p. 200 ff. with calculation proposals).
Because a concrete determination of the actual energy costs for hot water preparation is not possible in the applicants' case, and thus a separation between heating costs and the energy costs for hot water preparation is not possible, the costs for hot water preparation must be systematically allocated to the heating costs (see North Rhine-Westphalia Higher Social Court, decision of May 28, 2013 – L 9 AS 541/13 B). These costs must be distributed among the household members on a per capita basis.
Source: Attorney Sven Adam, Lange Geismarstraße 55, 37073 Göttingen, full text of the judgment available here: www.anwaltskanzlei-adam.de
5. Decisions of the Social Courts on Social Assistance (SGB X II)
5.1 – Social Court Rostock, Decision of January 3, 2013 – S 8 SO 84/12 ER
Social assistance – Integration assistance – Assistance for appropriate schooling – Coverage of costs for an integration aide when attending after-school care – Necessity of attending after-school care – Facilitating the transition from a special education school to a regular school.
Principle: (SRa 2014, Issue 02, Social Assistance Law – beck-online)
The right to inclusive schooling can also include prior attendance at the after-school care program of a regular school.
Source: www.sozialrecht-aktuell.nomos.de
The full text is available to the author.
5.2 – SG Mannheim, Judgment of 6 May 2014 – S 9 SO 519/14
Pensioner must repay care allowance to social welfare office
Guidelines (Social Association VdK Germany e.V.):
If individuals requiring care receive financial assistance for care from the social welfare office, they must repay this assistance during a short-term inpatient care stay. Even though the care allowance paid by the long-term care insurance fund continues to be paid during short-term inpatient care, the legal regulations generally do not provide for this to apply to the care allowance paid by the social welfare office.
Due to the fundamental importance of the case, the Social Court has granted leave to appeal to the State Social Court of Baden-Württemberg in Stuttgart.
The author has received the verdict.
5.3 – Social Court Detmold, Judgment of 13 May 2014 – S 8 SO 333/12
The provision of Section 4 Paragraph 3 Sentence 1 of the Implementing Regulation to Section 82 of the German Social Code, Book XII (DVO §82SGB XII), which regulates the consideration of a projected income, must be interpreted in conformity with the authorization to mean that, at least when taking into account the calculation methods regulated therein, no more than the actual income is to be considered when granting benefits, in particular if – as in the present case – it turns out before the grant decision becomes legally binding that the income is actually lower than assumed in the projected decision.
Guiding Principles (Author)
: This corresponds to the principle that, according to Section 82 of the German Social Code, Book XII (SGB XII), only readily available funds can be considered as income, i.e., funds that can actually be used to cover living expenses. It also takes into account that, according to the authorization granted by Section 96 Paragraph 1 of the SGB XII, which forms the legal basis for the Implementing Regulation to Section 82 of the SGB XII, only the methods for calculating income can be regulated by ordinance, not what constitutes income in the first place. Therefore, the principles of Section 82 of the SGB XII must be considered when applying the Implementing Regulation to Section 82 of the SGB XII. Adhering to the prognostic assessment required under Section 4 Paragraph 3 of the Implementing Regulation to Section 82 of the SGB XII, even in cases of lower actual income, would ultimately not do justice to the subsistence-securing nature of the benefits under the SGB XII, as there would be a risk of insufficient coverage of needs and thus a threat to the livelihoods of those entitled to benefits.
Source: sozialgerichtsbarkeit.de
5.4 – Social Court Detmold, Judgment of 13 May 2014 – S 8 SO 133/12
No medical assistance will be granted under the German Social Code Book XII (SGB XII) as a subsidy if the applicant owns a condominium in Russia.
Guiding Principles (Author):
It cannot be assumed that the condominium is unusable. The concept of usability requires a purely economic analysis, excluding considerations of personal ownership of assets and, in particular, the feasibility of their realization. Usability, therefore, concerns solely the question of whether a particular asset possesses any economic value that the prospective buyer can utilize.
Benefits for long-term care under the German Social Code, Book XII (SGB XII), must therefore be granted as loans.
Source: sozialgerichtsbarkeit.de
5.5 – Social Court Detmold, Judgment of 27.08.2013 – S 8 SO 127/12 – legally binding
Funeral expense insurance is not a type of insurance typically available to low-income earners (here, €17.30 per month)
Guiding Principles (Author):
The applicant is not entitled to higher benefits after deduction of insurance contributions from her pension income pursuant to Section 82 Paragraph 2 No. 4 of the German Social Code, Book XII (SGB XII). Contributions to the funeral expenses insurance are not legally mandated. Furthermore, they are fundamentally unreasonable.
When interpreting the criterion of "appropriateness," the purpose of the regulation must be considered, and the fact that even those with low incomes often seek to insure against risks that would severely impact their livelihood must be taken into account. The appropriateness of private insurance is thus assessed based on both the specific life risks (reason) and the extent (amount) for which recipients of incomes just above the social assistance threshold typically incur such expenses, as well as the individual circumstances of the person seeking assistance. Crucially, the specific risks to be covered must be determined, and the type of insurance in question must be considered standard for those with lower incomes just above the social assistance threshold. For practical reasons, standardity can be assumed if it can be assumed that more than 50 percent of households just above the social assistance threshold have such insurance. However, there may also be special circumstances in individual cases that justify covering the contributions for private insurance (cf. the above, Federal Social Court, judgment of 29.09.2009, file number: B 8 SO 13/08 R).
Based on this, the applicant is not entitled to deduct the contributions from the income to be considered, because funeral expense insurance is not a type of insurance typically available to those with low incomes just above the social assistance level. This is evident from the results of the 2008 Income and Expenditure Survey, to which the Federal Statistical Office referred in response to the court's inquiry. The circumstances of the individual case do not alter this conclusion.
Source: sozialgerichtsbarkeit.de
5.6 – Social Court Detmold, Judgment of 13.08.2013 – S 8 SO 379/11 – legally binding
According to § 74 SGB XII, the necessary costs of a funeral are covered, insofar as it cannot be reasonably expected of those obligated to bear the costs – Russian Orthodox funeral – a car does not have to be used to pay the funeral costs.
Guiding Principles (Author)
: The applicant is not required to use the car U1 D, inherited from the deceased and valued at EUR 5,515. When assessing whether the liable party can reasonably be expected to bear the costs, certain subjective factors must be considered in addition to the liable party's financial circumstances.
Using the existing estate is unreasonable, as it consists of essential household items that are still necessary for the surviving spouse to maintain an orderly lifestyle, at least under modest financial circumstances.
The applicant herself has not yet reached the age limit stipulated in Section 7a of the German Social Code, Book II (SGB II), and is still obligated under SGB II to take up employment, for which a car is regularly required. The car, valued at €5,515, is also considered a reasonable vehicle, with the court basing its assessment on the value of €7,500 for a car exempt from being counted as income under SGB II pursuant to Section 12, Paragraph 2, No. 2. The court took into account that the asset allowances under SGB II and XII do not typically apply to the person obligated to pay the estate for funeral expenses, but considers it appropriate to refer to this value for the assessment of reasonableness pursuant to Section 74 of SGB XII.
The costs for a customary and appropriate burial must be covered. The costs for transporting the body to the Russian Orthodox cemetery in C1 are not considered appropriate or customary, as a Russian Orthodox burial could also have taken place at the T cemetery in C.
Source: sozialgerichtsbarkeit.de
5.7 – Social Court Detmold, Judgment of 01.04.2014 – S 8 SO 154/13
If a recipient of basic income support for job seekers under the German Social Code, Book II (SGB II) applies for benefits under Section 74 of the German Social Code, Book XII (SGB XII), the question of reasonableness from an economic point of view is governed by Sections 11 – 11 b and 12 of the German Social Code, Book II (SGB II).
Guiding principle (author):
Otherwise, the unconvincing situation would arise where a recipient of benefits under Book II of the German Social Code (SGB II) would have to use income or assets that they do not have to use for their own living expenses for the funeral of another person. Given the different definitions of the socio-cultural subsistence minimum when considering income and assets, it cannot make a difference for the assessment of reasonableness whether the need is defined under one or the other social security system (Federal Social Court, judgment of September 29, 2009, case no.: B 8 SO 23/08 R).
Source: socialcourtsability.de
5.8 – Frankfurt Social Court, Judgment of 27 September 2013 – S 30 SO 138/11 – legally binding
Regarding the commencement of social assistance pursuant to Section 18 Paragraph 1 of the German Social Code, Book XII (SGB XII), and the exception to the principle of "no assistance for the past." Here: Knowledge of the guardianship authority constitutes knowledge of the social assistance provider. The guardianship authority informs the social assistance provider of the need for assistance
Guiding Principles (srif.de):
The wording in Section 18 Paragraph 1 of the German Social Code, Book XII (SGB XII), "commencedes," allows for various interpretations. Since Section 18 Paragraph 2 Sentence 2 of the SGB XII permits retroactive commencement of assistance, there is strong support for the view that retroactive assistance can also be claimed under Section 18 Paragraph 1 of the SGB XII, relating to the point in time when the emergency situation first became known.
The principle derived from Section 18 Paragraph 1, "No assistance for the past," does not entirely preclude this. In these cases, an ex post review reveals precisely that knowledge of the emergency existed, even if it was not initially verified. This ensures that the time elapsed until the conclusion of the investigations into the facts and the law does not necessarily work to the detriment of the person seeking assistance. Knowledge and further clarification of the facts are two distinct aspects. Furthermore, retroactive commencement of assistance to the point in time at which the need for assistance was demonstrated or otherwise apparent is, in principle, possible.
Source: www.srif.de
Full text of the decision: dejure.org
5.9 – Social Court Berlin, decision of 26 May 2014 – S 212 SO 850/14 ER
Assistance with care, housing group supplement for people in need of care in outpatient assisted living communities, no subsidiary nature of social assistance
Principle (Juris):
The housing group supplement pursuant to Section 38a SGB 11, which is granted to a person in need of care in an outpatient-assisted living community, is not to be offset against the assistance for care pursuant to Sections 61 ff. SGB 12.
Social assistance is not subsidiary. Unlike in-kind care benefits, there is no benefit congruence between the housing group supplement and long-term care assistance.
Source: sozialgerichtsbarkeit.de
Note:
SG Halle (Saale) reached the same conclusion in its decision of March 6, 2014 – S 24 SO 223/13 ER
5.10 – Social Court Wiesbaden, Judgment of April 30, 2014 – S 30 SO 47/12
Additional needs allowance for severely disabled persons only upon presentation of the severely disabled person's identity
Key principles (Juris):
A claim for consideration of additional needs as a severely disabled person only arises upon presentation of the official notification from the social welfare office establishing the severe disability or the severely disabled person's identity card. A finding in the justification of the notification regarding when the disability began is irrelevant in this context.
Source: sozialgerichtsbarkeit.de
Note:
The Higher Social Court of Baden-Württemberg, Judgment of September 18, 2013 – L 2 SO 404/13; Social Court of Karlsruhe, Judgment of January 30, 2014, S 1 SO 3002/13 and Higher Social Court of North Rhine-Westphalia, Decision of May 8, 2014 – L 9 SO 55/14 B, held the same view.
5.11 – Social Court Regensburg, decision of 03.04.2014 (file no. S 16 SO 4/14 ER)
Guiding principles from lawyer and specialist lawyer for social law Mathias Klose:
Issuance of an interim injunction against the social welfare provider under the German Social Code Book XII (here: Upper Palatinate district) for reimbursement of travel expenses (here: taxi costs) to necessary outpatient (dental) medical treatment appointments.
The social welfare provider may be obligated, by increasing the standard benefit rate pursuant to Section 27b Paragraph 2 Sentence 2 of the German Social Code, Book XII (SGB XII), to cover the costs of transportation to outpatient (dental) medical treatment for a social welfare recipient residing in a nursing home, provided that no third party, in particular the health insurance fund, is primarily responsible for covering these costs.
Source: www.ra-klose.com
6. Higher Regional Court of Braunschweig, 1st Criminal Senate, Decision of May 19, 2014, 1 Ss 18/14
On the calculation of the daily rate for recipients of benefits under the German Social Code, Book II (SGB II)
Principles (Juris)
1. To determine net income within the meaning of Section 40 Paragraph 2 Sentence 2 of the German Criminal Code (StGB), in the case of recipients of benefits under the German Social Code, Book II (SGB II), in addition to the standard allowance (Section 20 SGB II in conjunction with the announcements of the Federal Ministry of Labour and Social Affairs on the amount of the standard allowances), benefits pursuant to Section 22 SGB II (needs for accommodation and heating) must also be included.
2. When determining the amount of the fine and ordering payment relief, care must be taken to ensure that the recipient of benefits retains 70% of the standard monthly allowance as an essential minimum for subsistence.
Source: www.rechtsprachung.niedersachsen.de
7. Commentary by Prof. Dr. Uwe Berlit, Presiding Judge of the Federal Administrative Court (BVerwG) at juris on the Federal Social Court (BSG), 4th Senate, Judgment of September 10, 2013 – B 4 AS 4/13 R:
Determining the Adequacy of Accommodation Costs by Referring to the Housing Benefit Table Values.
Principle:
Before resorting to the table values according to the Housing Benefit Act (WoGG) to determine the abstractly reasonable accommodation costs as an upper limit, even if the defendant job center has already assumed higher accommodation costs, it cannot be left open whether there is a lack of local information available for determining the abstractly reasonable accommodation costs according to a coherent concept.
Source: Juris: www.juris.de
8. Coherent concept and statistics.
On the jurisprudence of the Federal Social Court and the Bavarian State Social Court regarding the "conclusive concept" for the state capital Munich – An article by Christian v. Malottki, published in issue 03/2014, also available at: www.info-also.nomos.de (pdf)
9. Gießen Social Court: Employment Agency: Waiver of Certificate of Incapacity for Work in Individual Cases - Christmas Holidays.
The Gießen Social Court has ruled that an unemployed person is not always required to submit a certificate of incapacity for work if they are unable to attend an appointment due to illness. In a case like this, the Employment Agency could have exceptionally deviated from its guidelines and waived the otherwise mandatory requirement of a certificate of incapacity for work, especially since the appointment was only intended to discuss the plaintiff's general professional situation.
Gießen Social Court, Judgment of May 14, 2014 – S 14 AL 112/12, published in Juris: www.juris.de.
Author of the case law ticker: Willi 2 of Tacheles – alias Detlef Brock
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
