VERDICT
In the legal dispute
xxx,
– Plaintiff –
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen
against
Göttingen district xxx,
– Defendant –
The 35th Chamber of the Social Court of Hildesheim, in the oral proceedings of April 10, 2017, with Judge xxx and Lay Judges xxx and xxx presiding, has ruled as follows:
1. The defendant is ordered, by amending the decisions of the City of Göttingen dated April 30, 2014, May 8, 2014 and July 21, 2014, as modified by the defendant's decision on the objection dated July 22, 2014 and by the decision of the City of Göttingen dated August 4, 2014, to grant the plaintiff basic income support for job seekers under Book Two of the Social Code (SGB II) for the period from March 1, 2014 to September 30, 2014, as a subsidy in the statutory amount.
2. The defendant shall bear the plaintiff's necessary extrajudicial costs.
FACTS OF THE CASE
The plaintiff seeks from the defendant the grant of subsistence benefits under the Second Book of the Social Code in the form of a subsidy instead of the loan previously granted, for the waiting period until the defense of his master's thesis.
The plaintiff was granted vocational training assistance under the Federal Training Assistance Act (BAföG) during his studies at Humboldt University of Berlin. He most recently received benefits for the period from October 1, 2012, to September 30, 2013 – as confirmed by the BAföG notification from the responsible student services organization in Berlin dated September 20, 2012 (see page 9 of the defendant's administrative file). After the vocational training assistance expired, the plaintiff was employed on a temporary basis as a so-called "student assistant with a bachelor's degree" at the University of Göttingen from October 1, 2013, to March 31, 2014. It is undisputed between the parties that the plaintiff had already begun his master's degree examination at this time and had submitted his master's thesis on February 18, 2014. The plaintiff was waiting for a date to "defend" his master's thesis, thus completing his master's studies.
During the waiting period, the plaintiff submitted an application to the City of Göttingen on March 25, 2014, for basic income support for job seekers under Book Two of the German Social Code (SGB II). Furthermore, effective March 31, 2014, the plaintiff was deregistered from Humboldt University of Berlin and submitted the corresponding deregistration certificate to the City of Göttingen (see page 34 of the defendant's administrative file).
The City of Göttingen rejected the plaintiff's application for benefits under Book II of the German Social Code (SGB II) by decision dated April 30, 2014, stating that, according to Section 7 Paragraph 5 of the SGB II, the plaintiff was ineligible for benefits because he was still studying at Humboldt University in Berlin. This course of study was, in principle, objectively eligible for funding within the meaning of Section 7 Paragraph 5 of the SGB II. The plaintiff was still awaiting the defense of his master's thesis, so his studies were not yet formally completed. Whether the plaintiff was actually still receiving educational assistance was irrelevant, as the exclusion from benefits depended solely on the objective eligibility for funding. No grounds for granting a loan were identified.
The plaintiff, through his legal representative, filed an objection on May 7, 2014, against the rejection notice issued by the City of Göttingen. He argued that, according to the jurisprudence of the Federal Social Court, the exclusion from benefits under Section 7 Paragraph 5 of the German Social Code, Book II (SGB II), only applies if a student remains organizationally affiliated with the university and is actively pursuing their studies. The plaintiff, however, had been deregistered from the university, was therefore no longer affiliated with the university organization, and was no longer actively pursuing his studies. He was merely awaiting a hearing date for the defense of his master's thesis.
On May 8, 2014, the City of Göttingen amended its rejection notice of April 30, 2014, granting provisional benefits under the German Social Code, Book II (SGB II), as a loan for the period from March 1, 2014, to September 30, 2014. On July 21, 2014 (following an interim appeal), a further amended notice was issued, according to which the City of Göttingen also covered the monthly heating electricity costs of €0.90 as a loan for the aforementioned benefit period.
The plaintiff's objection of May 7, 2014, was rejected by the defendant, who had since become responsible for the case, with a formal notice of rejection dated July 22, 2014. The defendant reasoned that the provision in Section 7 Paragraph 5 of the German Social Code, Book II (SGB II) refers to the abstract eligibility for funding of the training and that any individually expired eligibility for funding of studies is not relevant for the exclusion from benefits. Furthermore, in the case of university studies, eligibility for funding ends at the end of the month in which the last examination is completed. This would be the defense of the master's thesis. Only after this does the exclusion from benefits under Section 7 Paragraph 5 of the SGB II no longer apply.
By further notice dated 04.08.2014, the city of Göttingen amended the provisional loan approval of benefits in the notices of 08.05.2014 and 21.07.2014 for the partial period from 01.08.2014 to 30.09.2014, again taking into account health and long-term care insurance contributions.
On August 9, 2014, the plaintiff filed a lawsuit against the defendant's decision on the objection before the local social court.
The plaintiff maintains that, according to the jurisprudence of the Federal Social Court, a prerequisite for exclusion from benefits is that a student remains organizationally affiliated with the university and is simultaneously pursuing their studies in practice. Neither of these conditions applies to him: he was deregistered effective March 31, 2014, and is therefore no longer organizationally affiliated with Humboldt University of Berlin. Furthermore, he is not pursuing his studies in practice. Rather, he submitted his master's thesis on February 18, 2014, and is merely awaiting a date for the required defense of his thesis. This no longer constitutes studying in the practical sense.
The plaintiff requests
that the defendant, by amending the decisions of the City of Göttingen dated April 30, 2014, May 8, 2014, and July 21, 2014, as modified by the defendant's decision on the objection dated July 22, 2014, and by the amendment decision of the City of Göttingen dated August 4, 2014, be ordered to grant the plaintiff basic income support for job seekers under Book Two of the Social Code in the statutory amount as a subsidy for the period from March 1, 2014, to September 30, 2014.
The defendant requests
that the action be dismissed.
He considers the contested decision lawful and refers first to his reasoning in the initial and appeal decisions. Furthermore, he is of the opinion that the plaintiff's studies only end with the final examination stage, i.e., the defense of the master's thesis. The student's deregistration or a temporary leave of absence is irrelevant in this respect. The defendant also indirectly infers this from the 1991 administrative regulations on BAföG (Federal Training Assistance Act), according to which student financial aid can be extended during the last two semesters for students on leave of absence or deregistered. However, if the studies are fundamentally eligible for funding, the exclusion of benefits under Section 7 Paragraph 5 of the German Social Code, Book II (SGB II) applies.
For further details of the facts and the submissions of the parties, reference is made to the court file and to the administrative file of the defendant.
REASONS FOR THE DECISION
The action is admissible and well-founded.
The plaintiff is entitled to the granting of SGB II benefits in the statutory amount for the period from 01.3.2014 to 30.09.2014 in the form of a grant – and not only as a loan – as is the case in the previous notices of the city of Göttingen dated 08.5.2014, 21.07.2014 and 04.08.2014.
The requirements for the granting of benefits under Book II of the German Social Code (SGB II) are met in the plaintiff's case:
- The plaintiff's need for assistance under Sections 7 and 9 of Book II of the German Social Code (SGB II) following the termination of his employment at the University of Göttingen and the prior termination of his student financial aid under the Federal Training Assistance Act (BAföG) is undisputed between the parties. This is ultimately also demonstrated by the provisional loan-based granting of benefits under Book II of the German Social Code (SGB II) for the period from March 1, 2014, to September 30, 2014, as set out in the notices issued by the City of Göttingen on May 8, 2014, July 21, 2014, and August 4, 2014.
- Contrary to the defendant's legal opinion, the exclusion from benefits under Section 7 Paragraph 5 of Book II of the German Social Code (SGB II) does not apply to the plaintiff for the period in dispute because the requirements for this exclusion are not met in his case.
According to Section 7 Paragraph 5 of the German Social Code, Book II (SGB II), trainees whose training is eligible for funding under the Federal Training Assistance Act or Sections 60 to 62 of the German Social Code, Book III (SGB III), are not entitled to unemployment benefit II, social assistance, or benefits for education and participation beyond the benefits provided under Section 27 (loan-based granting).
The group of people thus described is therefore, in principle, excluded from benefits to secure their livelihood. This is because, according to the legislator's intent, basic income support is not meant to enable the pursuit of education that is, in principle, eligible for other forms of funding, at a "second level," by ensuring general subsistence during the training (see Federal Social Court, judgment of September 30, 2008 — B 4 AS 28/07 R, SozR 4-4200 § 7 No. 9; also Spellbrink/G. Becker, in: Eicher, SGB II Commentary, 3rd ed. 2013, § 7 para. 166).
Section 7 paragraph 5 of the German Social Code, Book II (SGB II) therefore contains an exclusion of benefits for students during the period of their studies.
In this context, the legislator does not consider individual or actual personal funding opportunities, but rather an objective standard. Essentially, the only decisive factor is whether the training, or more specifically the studies, are objectively eligible for funding "in principle".
In its decision of March 22, 2012 (B 4 AS 102/11 R), cited by the plaintiff, the Federal Social Court specified the criterion of "eligibility for funding in principle" in Section 7 Paragraph 5 of the German Social Code, Book II (SGB II), to the effect that the exclusion from benefits only applies if
- the student remains organizationally affiliated with the university, and
- the student continues to actually pursue his studies.
The Federal Social Court made this clarification in the context of a case concerning the receipt of benefits by a student on leave of absence. The Federal Social Court deemed the exclusion from benefits justified because the student on leave was not actually pursuing her studies.
In the court's view, however, there are no apparent reasons against applying this clarification to the plaintiff's present case. The court could not, in any case, find any indication in the cited decision that the Federal Social Court had only made this clarification for the specific case it decided and that this clarification therefore lacked general applicability.
Applying the clarification provided by the Federal Social Court, the plaintiff is not excluded from benefits: His deregistration from the university—for whatever reason—became effective on March 31, 2014, meaning he was no longer organizationally affiliated with Humboldt University of Berlin. Since the two conditions developed by the Federal Social Court must be met cumulatively, the court is of the opinion that it is no longer relevant whether the plaintiff was actually still "pursuing" his master's studies while awaiting the date for his thesis. However, there is considerable support for the view that merely waiting for the final part of the master's examination, namely the defense of the thesis, does not constitute actual study. In this respect, the court considers the studies to form the basis for the later examination phase, parts of which the plaintiff had already completed when he submitted his thesis on February 18, 2014, and was merely awaiting the date for its defense. The chamber does not see this as a course of study in the actual sense — as required by the Federal Social Court for an exclusion from benefits.
To the extent that the defendant relies on the administrative regulation for the Federal Training Assistance Act of 1991 (BAföGVwV 1991) to justify the exclusion from benefits, the court finds that this does not lead to a different result: The administrative regulation contains a discretionary decision that was clearly created for cases of hardship. Whether the plaintiff constitutes such a case of hardship, even in light of the clear clarification in the case law of the Federal Social Court, did not need to be determined by the court. In any case, the legislature pursued a different objective with the Federal Training Assistance Act and the associated administrative regulations than is the case with the German Social Code, Book II (SGB II). Therefore, the legislative considerations for the Federal Training Assistance Act cannot be applied without examination to cases of exclusion from benefits under Section 7 Paragraph 5 of the SGB II. In any event, the question of exclusion from benefits under Section 7 Paragraph 5 of the SGB II depends on individual funding opportunities for studies – even according to the defendant's own statements. Insofar as the defendant refers to the administrative regulation on BAföG from 1991, he is at least partly contradicting his previous statement about the only relevant funding option to be assessed objectively.
However, if one already considers individual hardship grounds, the Chamber is of the opinion that a "more than a fortiori" conclusion also applies in favor of the plaintiff:
Section 7, paragraph 5 contains a corresponding reference to the possibility of granting benefits as a loan pursuant to Section 27, paragraph 4 of the German Social Code, Book II (SGB II). Previously, the grounds for hardship were even directly regulated in Section 7, paragraph 5, sentence 2 of the SGB II. According to the relevant case law, grounds for hardship within the meaning of Section 27, paragraph 4, sentence 1 of the SGB II include, for example:
- the extension of the duration of education beyond the maximum funding period under the Federal Training Assistance Act (BAföG) due to the birth and raising of a child,
- an extremely low BAföG rate that does not cover basic needs,
- an excessively long duration of studies or training due to illness, disability, etc., or
- the fact that a student is in the examination phase shortly before completing their education (cf. Spellbrink/G. Becker, in: Eicher, loc. cit., Section 7, marginal note 194).
However, if the exclusion of benefits is not to apply completely in exceptional cases—as described above—even when the maximum funding period is exceeded, and the possibility of a loan-based grant still exists, this must apply all the more if the maximum funding period is not exceeded at all, or if the final examination is extended through no fault of the student, for example, because a final examination date is delayed. In these cases, the granting of benefits under Book II of the German Social Code (SGB II) as a subsidy should also be considered. The clarification provided by the Federal Social Court, described above, has provided the necessary clarity in this regard.
After all this, the claim was to be granted and the plaintiff was to be awarded SGB II benefits for the period in dispute in the legally prescribed amount as a subsidy.
The decision on costs is based on § 193 SGG.
The following is information on legal remedies.
