Manufacturing claim under social law

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The social law manufacturing claim is a public liability claim of the citizen against a social service provider , which the case law has developed through judicial training . In the matter it is - depending on the wording - a "sub-case" or a "parallel" or a "further development of the claim to remedy the consequences ".

purpose

The social law manufacturing claim is aimed at compensating for breaches of duty by a social service provider, in particular from its obligation to provide information ( Section 13 SGB ​​I ), to advise ( Section 14 SGB ​​I) and to provide information ( Section 15 SGB ​​I). If the citizen incurs a disadvantage because he has received incorrect or incomplete advice from a social authority, he can, under the conditions of the social law manufacturing claim, demand to be placed as he would have been if the authority had behaved lawfully. In their work, the social service providers must ensure that social rights are realized as far as possible ( Section 2 (2) HS. 2 SGB I).

requirements

The social courts have awarded a manufacturing claim under the following conditions:

  1. The beneficiary has suffered a disadvantage or damage. For example, he is not entitled to a social benefit that he should have applied for ( Section 16 SGB ​​I) because he had not made a corresponding application.
  2. A social service provider has acted or has failed to do what it should have done. It may be that the clerk who advised the person concerned failed to point out that the service on which the citizen is dependent is a service that can only be provided upon request.
  3. The action or omission of the carrier was objectively contrary to duty (illegal). There was an obligation which had the aim of preventing precisely the disadvantage that had materialized in the specific case ( protective purpose context ). Specifically: an obligation to advise under the law.
  4. The action or failure of the authority was the cause of the damage. In this respect, the doctrine of the legally essential condition applies in social law. This means that there must be a condicio sine qua non with regard to success, which should also be recorded according to the meaning and purpose of the respective social law system.
  5. The disadvantage that has arisen can subsequently be eliminated by lawful administrative action . This requirement is a general expression of the rule of law.

The claim therefore does not presuppose any fault on the part of the administrator in looking after the person concerned. It also applies to breaches of duty by an authority other than that which made the disadvantageous decision. The entitlement does not apply in the relationship between social benefit providers.

The claim should be excluded in the event of gross contributory negligence on the part of the beneficiary.

application

In the literature, it has been warned against considering the social law manufacturing claim “prematurely as a panacea in the case of assumed misconduct by social service providers”. Because the case law had not applied the manufacturing claim in the past in all areas of social law.

In particular, she did not transfer it to social welfare law for a long time . Only through the classification of social assistance in the Social Security Code and the associated transfer of judicial responsibility for social welfare matters of the administrative jurisdiction of the social jurisdiction since 2005 this has changed. While the BVerwG, with reference to the principle of “no social assistance for the past”, had refused to apply the manufacturing claim, the BSG has meanwhile moved away from this position because the basic security is an application-dependent benefit.

In the meantime, the Federal Social Court also applies the manufacturing claim to the law of basic security for job seekers ("Hartz IV"), after this had been largely advocated in the literature.

In housing benefit law , for which the administrative courts are still responsible, the Federal Administrative Court has largely restricted the application of the social law manufacturing claim by excluding it in the event that a reinstatement in the previous state in the social administration proceedings according to § 27 SGB ​​X is possible. The court saw no room for the application of the manufacturing claim under judicial law, because there is no loophole in the law.

The BSG did not follow this view of the Federal Administrative Court in a ruling on the Bavarian State Education Allowance because it did not consider § 27 SGB ​​X to be a final regulation. The manufacturing claim is applicable in addition to the reinstatement, because the scope of the two legal institutions is not the same.

In the law of statutory health insurance , Section 13 (3) SGB V must be observed. If “non-postponable” benefits are unlawfully rejected by the health insurance company and if the insured person incurs costs as a result of their procurement, these are to be reimbursed by the health insurance company “insofar as the benefit was necessary”. § 18 SGB ​​IX applies to rehabilitation services .

Regarding the Advance Maintenance Act , case law has denied both the reinstatement in the previous status and a manufacturing claim because payments for previous periods are not possible.

In the law of unemployment insurance , the BSG decided that the missing unemployment registration could not be replaced retrospectively by a social law manufacturing claim. The same applies to objective and subjective availability as a feature of unemployment in the legal sense. However, according to the general opinion, the application for unemployment benefit can be made on the day on which it would have been made if the advice had been given in good time and correctly.

From the interpretation rule of Section 2 II of Book I of the Social Code, it was concluded that the authority had to accommodate the citizen, especially in the case of short deadlines for submitting an application, so that advice could still take place at a point in time that would enable the citizen to take action.

Legal consequence

The legal consequence of the social law manufacturing claim is the compensation of the respective disadvantage by granting the person concerned the legal position "which he would have had if the procedure had been properly carried out from the start." He is thus treated in the administrative procedure as if he had an application whose position he should have been pointed out, placed in good time.

Competitions

Because the social law production claim is based on judicial legal training, it can only be considered if no other legally determined compensation situation is relevant. The problem here is that the official liability only compensates the person concerned for damage in money, while the general claim for the removal of consequences is intended to restore an earlier situation. To the extent that these claims are empty, there is room for the application of the manufacturing claim.

literature

  • Claus-Peter Bienert: The expiry of an entitlement to unemployment benefit due to incorrect advice from the Employment Agency and the socio-legal production claim. At the same time, a comment on the judgment of the social court in Giessen of July 8, 2015 - S 14 AL 13/15 . In: info also . 2016, p. 59 .
  • Dagmar Felix : Manufacturing claim under social law and official liability. On the relationship between two liability instruments . In: SGb . 2014, p. 469 .
  • Alexander Gagel : The manufacturing requirement. Its importance in the concept of correction tools according to recent case law . In: SGb . 2000, p. 517 .
  • Reimund Schmidt-De Caluwe : The social law manufacturing claim : an examination of the origin and development of a particular liability in social law, its relationship to social procedure and state liability law as well as a criticism of its dogmatics so far . Duncker and Humblot, Berlin 1992, ISBN 3-428-07370-3 (Zugl .: Giessen, Univ., Diss., 1991).

Individual evidence

  1. ^ Fritz Ossenbühl: State liability law . 4th edition. CH Beck, Munich 1991, ISBN 3-406-33768-6 , pp. 278 (§ 39 1. d)).
  2. ^ Fritz Ossenbühl: State liability law . 4th edition. CH Beck, Munich 1991, ISBN 3-406-33768-6 , pp. 278 (§ 39 1. d) with reference to BSGE 34, 124, 126).
  3. ^ A b Fritz Ossenbühl: State liability law . 4th edition. CH Beck, Munich 1991, ISBN 3-406-33768-6 , pp. 278 (§ 39 1. d) with reference to BSGE 49, 76, 79).
  4. ^ Stefan Muckel: Social law . 3. Edition. CH Beck, Munich 2009, ISBN 978-3-406-57624-9 (§ 16 Rn. 27).
  5. ^ Gerhard Igl and Felix Welti: Social law . 8th edition. Werner Verlag, Neuwied 2007, ISBN 978-3-8041-4196-4 (§ 76 Rn. 10 with reference to BSGE 32, 60).
  6. ^ A b Stefan Muckel: Social law . 3. Edition. CH Beck, Munich 2009, ISBN 978-3-406-57624-9 (§ 16 Rn. 29).
  7. ^ Stefan Muckel: Social law . 3. Edition. CH Beck, Munich 2009, ISBN 978-3-406-57624-9 (§ 16 marginal number 31 with reference to BSGE 49, 76, 77f.).
  8. ^ Stefan Muckel: Social law . 3. Edition. CH Beck, Munich 2009, ISBN 978-3-406-57624-9 (§ 16 marginal number 31 with reference to BSGE 51, 49ff .; 112, 114).
  9. ^ Stefan Muckel: Social law . 3. Edition. CH Beck, Munich 2009, ISBN 978-3-406-57624-9 (§ 16 marginal number 31 with reference to BSGE 86, 78).
  10. ^ Fritz Ossenbühl: State liability law . 4th edition. CH Beck, Munich 1991, ISBN 3-406-33768-6 , pp. 277 (§ 39 1. c) with reference to BSGE 34, 124, 128ff.). : "It is the case if the person concerned intentionally or grossly negligently did not use his own information options, namely grossly negligently did not adequately determine the data in his personal area for the disposition."
  11. ^ So explicitly: Gerhard Igl and Felix Welti: Social Law . 8th edition. Werner Verlag, Neuwied 2007, ISBN 978-3-8041-4196-4 (§ 76 Rn. 11).
  12. ↑ In this sense also: Johannes Münder: Lehr- und Praxiskommentar Sozialgesetzbuch II . Ed .: Johannes Münder. 3. Edition. Nomos Verlag, Baden-Baden 2009, ISBN 978-3-8329-4639-5 (§ 4 SGB II marginal number 5 with further references). : "However - as is always the case with the social law manufacturing claim - it is necessary that there is causality and that the breach of the advisory obligations is the main reason for the insufficient or insufficient granting of benefits."
  13. ↑ Law on the classification of social welfare law in the SGB of December 27, 2003 (Federal Law Gazette I 3022) and: Seventh SGG Amendment Act of December 19, 2004 (Federal Law Gazette I 3302).
  14. ↑ Johannes Münder: Text and Practice Commentary on the Social Code II . Ed .: Johannes Münder. 3. Edition. Nomos Verlag, Baden-Baden 2009, ISBN 978-3-8329-4639-5 (§ 4 SGB II marginal number 4 with further references).
  15. ↑ Stephan Niewald: Teaching and Practice Commentary on the Social Code XII . Ed .: Johannes Münder u. a. 8th edition. Nomos Verlag, Baden-Baden 2008, ISBN 978-3-8329-2930-5 (§ 41 SGB XII Rn. 17 with reference to BSG SozR 4-2600 § 4 No. 2 and BSG, judgment of March 27, 2007 - B. 13 R 58/06 R).
  16. ^ Last discussed by: BSG: Judgment - B 4 AS 28/09 R. February 18, 2010, accessed on September 22, 2010 (Rn. 25). ; more detailed: BSG: Judgment - B 14 / 11b AS 63/06 R. October 31, 2007, accessed on September 22, 2010 (Rn. 13ff.).
  17. ↑ Johannes Münder: Text and Practice Commentary on the Social Code II . Ed .: Johannes Münder. 3. Edition. Nomos Verlag, Baden-Baden 2009, ISBN 978-3-8329-4639-5 (§ 4 SGB II marginal number 4).
  18. ↑ Wolfgang Eicher, Wolfgang Spellbrink (Ed.): Social Code II . 2nd Edition. CH Beck, Munich 2008, ISBN 978-3-406-55833-7 (§ 4 SGB II margin no. 7 with further references).
  19. ↑ BVerwG: judgment of April 18, 1997 - 8 C 38/95 . In: NJW . 1997, p. 2966 (Principles 2 and 3).
  20. ↑ BSG: Judgment - B 10 EG 9/05 R. February 2, 2006, accessed on September 22, 2010 . - There also on the relationship of § 44 SGB X to the social law manufacturing claim. Detail the status of the dispute: Bernd Sagittarius: Social Code X . Ed .: Matthias von Wulffen. 6th edition. CH Beck, Munich 2008, ISBN 978-3-406-56000-2 (§ 44 SGB X Rn. 33).
  21. ^ Gerhard Igl and Felix Welti: Social law . 8th edition. Werner Verlag, Neuwied 2007, ISBN 978-3-8041-4196-4 (§ 76 Rn. 11 with further references).
  22. ↑ Udo Geiger: Brief note on SG Karlsruhe, info also 2010, 17 . In: info also . 2010, p. 20th f., 20 (with reference to BSG of January 31, 2006 - B 11a AL 15/05 R and BSG of May 7, 2009 - 72/08 B).
  23. ↑ Udo Geiger: Brief note on SG Karlsruhe, info also 2010, 17 . In: info also . 2010, p. 20th f., 20 .
  24. ↑ Voelzke: § 2 II SGB I . In: jurisPK-SGB I . 1st edition. juris, 2005 (Rn. 27, with reference to: BSG of October 26, 1982 - 12 RK 37/81 - SozR 1200 § 14 No. 13 (status: September 22, 2006)).
  25. ↑ BSGE 32, 60, quoted from: Gerhard Igl and Felix Welti: Social Law . 8th edition. Werner Verlag, Neuwied 2007, ISBN 978-3-8041-4196-4 (§ 76 Rn. 10).
  26. ^ Gerhard Igl and Felix Welti: Social law . 8th edition. Werner Verlag, Neuwied 2007, ISBN 978-3-8041-4196-4 (§ 76 Rn. 10).