BSG, judgment of March 22, 2010, – B 4 AS 68/09 R
A reduction in unemployment benefit II according to Section 31 Paragraph 4 No. 3b SGB II comes into consideration if the event relevant to the blocking period occurs at a time when the person concerned - in this case due to the exercise of employment subject to compulsory insurance - has a social insurance legal relationship with the BA as a SGB III provider was standing.
++ Note: See note on: BSG 4th Senate, judgment of March 22, 2010 - B 4 AS 68/09 R -
Author: Dr.
Michael E. Reichel, RiSG Publication date: August 26, 2010
Source: Juris
Standards: § 16a SGB 2, § 15a SGB 2, § 32 SGB 2, § 119 AFG, § 123 SGB 3, § 25 SGB 3, § 27 SGB 3, § 8 SGB 4, § 25 BSHG, § 144 SGB 3, § 31 SGB 2
Reference: jurisPR-SozR 17/2010 Note 1
Editor: Dr.
Thomas Voelzke, Chairman RiBSG Prof. Dr. Rainer Schlegel, Chairman RiBSG
Reduction in unemployment benefit II after employer dismissal due to behavior contrary to the employment contract
++ Note: See Duisburg Social Court judgment of July 20, 2010, - S 31 AS 306/09 -
A job loss due to termination by the employer represents a typical application of Section 31 Paragraph 4 No. 3b SGB II (see BSG, judgment of March 22, 2010, B 4 AS 68/09 R). Its application also applies in the event that a cross-border commuter is not entitled to SGB III benefits (Tacheles case law ticker KW 34 / 2010).
++ Note: See BSG, judgment of December 17, 2009 - B 4 AS 20/09 R- (case law ticker from Tacheles 15/2010)
++ Note: See note on: BSG 4th Senate, judgment of December 17th, 2009 - B 4 AS 20/09 R -
Author: Cornelia Gebhardt, RA'in and FA'in for social law
Publication date: July 29th, 2010
Source: Juris
standards: § 48 SGB 10, § 24 SGB 2, § 15a SGB 2, § 15 SGB 2, § 31 SGB 2
Reference: jurisPR-SozR 15/2010 Note 1
Editor: Dr.
Thomas Voelzke, Chairman RiBSG Prof. Dr. Rainer Schlegel, Chairman RiBSG
Reduction of unemployment benefit II if you do not take part in an offered training measure
Guiding principle
If the behavior required of the person in need of help is already regulated in Section 31 Para. 1 SGB II and if the person in need of help has no connection to the legal circle of SGB III, the basic security provider is not entitled to grant unemployment benefit II due to the existence of the prerequisites for the entry of a blocking period (§ 31 Paragraph 4 No. 3 Letter b SGB II).
2. Decision of the Federal Social Court of June 1, 2010 on basic security for job seekers (SGB II)
Surcharges for night, Sunday and public holiday work must be taken into account as income in SGB II.
They are not earmarked income, because for the assumption of earmarking for income on a private law basis, an agreement must have been made from which it can be seen objectively that the employee should (only) use the service for a very specific purpose (cf. BSG -B 14 AS 64/08 R -Judgment of October 28, 2009 on severance payments).
The supplements for night, Sunday and public holiday work serve the same purpose as the benefits to secure a living under SGB II, because a different purpose cannot be determined (as concluded by LSG Berlin-Brandenburg, judgment of March 26, 2010 - L 32 AS 1771/09; Dau in jurisPR-SozR 3/2010 note 1).
Tax-free surcharges such as Sunday, public holiday and night surcharges are generally to be taken into account as income and are only deducted if expenses actually increase in accordance with Section 11 Paragraph 2 Sentence 1 No. 5 SGB II.
Tax-free supplements for night work paid by the employer are not designated income according to Section 11 Paragraph 3 No. 1 a SGB II, even if they are tax-free according to Section 3 b EStG (different opinion of the BSG, judgment of March 21, 1990 -7 RAr 86/87-SozR 3-4100 § 138 No. 2 with reference to the judgment of August 21, 1962 -11 RV 1056/60- SozR No. 18 on § 33 BVG).
3. Decision of the Federal Social Court of July 13th. 2010 on basic security for job seekers (SGB II)
BSG, judgment of July 13, 2010, – B 8 SO 14/09 R –
An employable person is not to be given preventive debt advice to avoid the need for help
Unlike SGB XII, SGB II does not provide for so-called preventive debt advice (Schumacher in Oestreicher, SGB II/SGB Section 16 Paragraph 2 SGB II contains a general clause for additional integration services that are listed as examples and not exhaustively; However, according to its wording, the regulation basically links the benefits to professional integration and the need for help. The accompanying or supplementary service to be provided must therefore be necessary for the integration of the employable person in need of assistance, because the indebtedness situation is a labor market-specific barrier to integration (Luthe in Hauck/Noftz, SGB XII, K § 11 RdNr 58a, as of June 2010). As an employed person, the person in need of assistance does not need to be integrated into work and, given her income, is not in need of assistance within the meaning of Section 7 Paragraph 1 Sentence 1 No. 3 in conjunction with Section 9 SGB II because she can secure her own living with her own income from work.
In the event of an interim order, the control power cannot be reduced to 70%.
It corresponds to established case law of the LSG NRW, in principle, if there is a credibly justified claim to an order, to provisionally approve standard benefits of 100 percent (cf. only 20th Senate LSG NRW, decision of May 2, 2007 - L 20 B 310/06 AS ER) .
4.2 - State Social Court of North Rhine-Westphalia decision of August 13, 2010, - L 6 AS 999/10 B ER-
A sanction notice is not unlawful if it does not contain any final regulations regarding the approval of supplementary benefits or benefits of value.
The reference to a possible application for benefits sufficiently satisfies the legal purpose of Section 31 Paragraph 3 Sentence 6 in conjunction with Paragraph 6 Sentence 6 SGB II. The regulation is intended to ensure that basic services are guaranteed for those in need of help, even in the context of a sanction. Since this is a discretionary decision in which the individual needs and the will of the person in need of help must be taken into account, a supplementary approval of benefits in kind without the participation of the person concerned is not possible (cf. LSG NRW, decision of December 10, 2009, L 9 B 51/09 AS ER).
++ Note: SG Bremen has a different opinion, decision of June 1st, 2010, - S 22 AS 965/10 ER and State Social Court of Lower Saxony-Bremen, decision of April 21st, 2010, - L 13 AS 100/10 B ER -, case law ticker from Tacheles 25/ 2010)
++ Note: The consortium is not exempt from the obligation to ensure the physical subsistence minimum because it pointed out to the person in need of help in the respective sanction notice that such benefits could be granted upon request. – This is insufficient according to constitutional guarantees, which aim to safely and even temporarily avoid falling below the physical minimum subsistence level, and is not necessary because a decision according to Section 31 Paragraph 3 Sentence 6 and 7 SGB II is not possible could be made without the involvement of the applicant. Furthermore, the Arge ignores the fact that the benefits in accordance with Section 31 Paragraph 3 Sentence 6 SGB II do not require a new application for benefits if - as is the case here - an existing approval of unemployment benefit II based on an application for benefits is interfered with (LSG Berlin- Brandenburg, resolution of December 16, 2008, Ref.: L 10 B 2154/08 AS ER; SG Kassel, resolution of January 21, 2010, Ref.: S 6 AS 373/09 ER).
The decision on additional benefits in kind or monetary benefits must be made ex officio, as a separate application from the person in need is not necessary (SG Kassel, decision of January 21, 2010, Ref.: S 6 AS 373/09 ER). A separate application for benefits is not a decision or benefit requirement. Such an application requirement does not arise from the law. The social law relationship established by the application for benefits is neither ended nor interrupted by the sanction decision (Berlit in: Münder (ed.), LPK-SGB II, 3rd A. 2009, § 31 Rn. 106). It should also be noted that the basic security provider is constitutionally obliged to keep the benefit event “under control”. It is therefore his responsibility to accompany the sanction with initiatives to adequately deal with the benefit case (LSG Berlin-Brandenburg, decision of December 16, 2008, Ref.: L 10 B 2154/08 AS ER; LSG North Rhine-Westphalia, decision of September 9, 2009 , Ref.: L 7 B 211/09 AS ER).
4.3 – Dortmund Social Court Judgment of June 9, 2010, S 29 AS 209/08, appeal permitted
According to Section 23 Para. 3 No. 3 SGB II, the costs of participating in a multi-day educational seminar as part of a school working group are to be borne by the basic social security provider according to SGB II, even if it was not carried out in a class group.
According to Section 23 Paragraph 3 No. 3 SGB II, services for school trips lasting several days are not included in the standard benefit within the framework of school regulations. They are provided separately. The concept of a school trip is not defined by law, the only thing that is stipulated is that it must be a school trip within the framework of school law regulations (decision of the North Rhine-Westphalia State Social Court of June 25, 2009 - L 1 B 40/08 AS -).
4.4 - Neuruppin Social Court judgment of August 18, 2010,- S 26 AS 704/08-
There is no entitlement to benefits for accommodation and heating if the applicant has not incurred any actual expenses because a third party made the monthly payments (cf. Federal Social Court, judgment of August 20, 2009, - B 14 AS 34/08 R- )
5. Report from the German Association of June 2, 2010, No. 14/06
Remaining obligations from a rental agreement that is given up with a view to moving into a stationary facility, but which results in payment obligations for rent, move-out renovations, eviction, clearing out and moving costs, can be factually based on Section 29 SGB XII; The social assistance provider in whose area the apartment relating to the remaining obligations is located is locally responsible for assistance.
According to case law, the provision of Section 29 SGB L 13 SO 26/07 ER, paragraph 4).
The costs of moving out renovations must be reimbursed as part of the basic security in old age if the recipient of assistance is obliged to do so under the rental agreement and the move to another apartment was necessary from the perspective of the appropriateness of the costs.
Costs for the move-out renovation and the costs associated with preparing or making the apartment habitable are costs of accommodation (BVerwG of April 30, 1992 - 5 C 26/88, paragraph 9 and BSG of December 16, 2008 - B 4 AS 49/07 R, paragraph 25).
6. On the legal quality of Section 22 Paragraph 2a SGB II for young adults who need to become independent
1st edition (as of: 4/2008)
Prof. Dr. Peter Schruth on behalf of the Berlin Legal Aid Fund Jugendhilfe eV
Structure
Preliminary remark p. 03
1. Problem p. 03
2. The limited scope of application of Section 22 Paragraph 2a SGB II p. 05
2.1.
Deadline regulation p. 07 2.2.
First extract p. 07 2.3.
Relocation of the entire community of needs p. 09 2.4.
Prerequisite for existing need for help p. 10 2.5.
Declaration of assurance before conclusion of contract p. 11 3. Fiscal motives of the legislature p. 11
4. Facts of Section 22 Paragraph 2a SGB II p. 14
4.1.
§ 22 paragraph 2a sentence 2 SGB II p. 15 4.1.1.
Serious social reasons (No.1) p. 15 4.1.1.1.
Severe disruption of the parent-child relationship p. 18 4.1.1.2.
Endangering the welfare of the child p. 20 4.1.1.3.
Marriage or partnership-like relationships p. 21 4.1.1.4.
Necessary separation of siblings p. 21 4.1.1.5.
External accommodation p. 22 4.1.1.6.
Sanction consequences p. 22 4.1.2.
Labor market-related necessity (No. 2) p. 23 4.1.3.
Other, similarly serious reasons (No.3) p. 25 4.2.
§ 22 paragraph 2a sentence 3 SGB II p. 25 4.3.
§ 22 paragraph 2a sentence 4 SGB II p. 26 4.4.
Classification of specific case constellations p. 27 4.4.1.
Independence following educational assistance p. 27 4.4.2.
Special problems of young women p. 28 4.4.3.
Precarious escape into (shared) housing p. 31 5. Procedural issues p. 33
5.1.
Local jurisdiction p. 33 5.2.
Involvement of youth and social welfare providers p. 34 5.3.
Legal consequences of the granted/rejected assumption of costs p. 35 5.4.
Objection and social legal protection p. 36 Results p. 36
References p. 40
7. Note on: LArbG Munich 4th Chamber, judgment of December 3rd, 2009 - 4 Sa 602/09
Authors: Prof. Dr.
Wolfhard Kohte, Manuela Willig, research assistant
Publication date: August 25, 2010
Source: Juris
Standards: § 307 BGB, § 85 SGB 11, § 76 SGB 11, § 72 SGB 11, § 84 SGB 11, § 115 SGB 10, § 30 SGB 2, § 33 SGB 2, § 138 BGB, § 10 AEntG 2009, § 12 AEntG 2009, § 14 SGB 11, § 1 PflegeArbbV, § 2 PflegeArbbV, § 13 AEntG 2009, § 8 AEntG 2009 Reference
: jurisPR-ArbR 34/ 2010 Note 1
Editor: Prof. Franz Josef Düwell, Chairman RiBAG
Prof. Klaus Bepler, Chairman RiBAG
Immoral wages for a geriatric nurse
Orientation sentence
Immorality of the employment contractual remuneration agreement of a geriatric nurse (hired with a basic monthly remuneration of 750 euros gross with a weekly working time of 42 hours) with state recognition for a standard remuneration in the sense of the principles of the relevant case law of the BAG or corresponding remuneration for independent providers Welfare care of, extrapolated to such a weekly working time, around 2,100 euros gross according to § 138 BGB.
Quote: As a consequence of the “Hartz IV” legislation, there has been growing employment in the low-wage sector in Germany in recent years (Waltermann, report on the 68th DJT, 2010, p. B 70 ff.), so that in the meantime In a series of legal proceedings in recent years, labor courts have determined the invalidity of remuneration agreements in accordance with Section 138 of the German Civil Code (BGB) and granted employees claims for back pay (illustrated ArbG Dortmund of May 29, 2009 - 4 Ca 274/08, with note Kohte, jurisPR-ArbR 17/2009 Note 1; current overview in Brecht-Heitzmann, note on BAG EzA BGB 2002 § 138 No. 5, mwN). The pivotal point of such proceedings is often the question of how the objective value of the work is to be determined, since according to the case law of the BAG, a contractual regulation is immoral if there is a noticeable disproportion between performance and consideration and other circumstances that can be assessed as immoral are added , without any awareness of immorality or an intention to cause harm being involved. Rather, knowledge of the facts from which the immorality arises is sufficient (BAG of April 26, 2006 - 5 AZR 549/05 - AP No. 63 to § 138 BGB).
The LArbG Munich is the first appellate court to use detailed data to determine in detail the immorality of an employment contractual remuneration agreement in the care industry, which is generally considered to be one of the growth sectors due to demographic change (see ArbG Herne v. for the area of outpatient care). 05.08.1998 - 5 Ca 4010/97 - PersR 2000, 87, with note Feldhoff, also Grimberg, AiB 2000, 366). The regulation on mandatory working conditions for the care industry that came into force on August 1, 2010 (BAnz of July 27, 2010, No. 110, p. 2571) confirms this development, but also leaves room for further decisions in the future, based on the example of the LArbG Munich can orientate themselves.
