1.1 – BVerfG 1 BvR 591/08, 1 BvR 593/08 of 16.03.2011
Full crediting of the injury pension against Hartz IV benefits.
This was to be expected, as there is sufficient justification for the "unequal treatment," and the complainants did not claim that they would have had a claim for damages against the employer if the employer's liability privilege did not exist.
Furthermore, the legislature has considerable discretion regarding which income it exempts from being taken into account. This applies particularly to cases of sacrifice for the common good or closely related circumstances. This includes basic pensions for war and military service injuries, as well as victim compensation. In these cases, the state was unable to adequately protect its citizens from harm. The situation is different with accident pensions, as the state is generally not involved in these.
1.2 – Federal Constitutional Court decision of 24 March 2011, – 1 BvR 1737/10-
The amount in dispute does not necessarily indicate whether or not legal representation is required.
"With its decision of 24 March 2011 – 1 BvR 1737/10, the Federal Constitutional Court upheld a constitutional complaint against a rejection of legal aid by the Social Court of Berlin of 4 March 2010 – S 39 AS 21029/09, as well as against the dismissal of the appeal by the Higher Social Court of Berlin-Brandenburg of 10 June 2010 – L 5 AS 610/10 B PKH.".
In a case concerning unemployment benefit II (ALG II), the Social Court rejected the plaintiff's application for legal aid and the appointment of a lawyer, essentially reasoning that a plaintiff who was not in need would not have hired a lawyer for a claim amounting to only €42. The Higher Social Court dismissed the plaintiff's appeal, arguing that legal assistance was unnecessary. Specifically, the court noted that social court proceedings were free of charge and that the dispute was of a minor nature. The court found no reasonable relationship between the amount in dispute (€42) and the potential costs (up to €460).
Following the Federal Constitutional Court's recent decision, the lower court's rulings rejecting the application for legal representation were overturned due to violations of the fundamental right to equality before the law, and the case was remanded to the Social Court for a new decision. The Federal Constitutional Court stated, among other things, that the amount in dispute cannot be used to determine whether legal representation is necessary. Rather, this depends on whether there is equality of arms between the parties. It must be taken into account that the litigant is facing experienced and legally knowledgeable representatives of the authorities. A reasonable litigant will therefore regularly retain a lawyer unless, exceptionally, they possess sufficient legal knowledge and skills themselves
(Reported by Rain Neubacher, law firm Püschel & Kollegen, Mahlow)
Note: See the decision of the Federal Constitutional Court of 24 March 2011 – 1 BvR 2493/10 –, commented on by social law expert Attorney Ludwig Zimmermann, Nomos The Law on Basic Income Security – Current Information on the Development of the Law on Basic Income Security
Guiding principle regarding the Federal Constitutional Court's decision on trivial matters
In social court proceedings, legal aid cannot be denied solely on the grounds of a small amount in dispute (7 EUR per month). The appointment of a lawyer through legal aid is necessary in social court proceedings if there is a significant imbalance in the parties' skills and knowledge. This is the case with a public authority that has legal representatives, unless the party exceptionally possesses sufficient knowledge and skills themselves. (Federal Constitutional Court, Chamber Decision of March 24, 2011 – 1 BvR 2493/10)
2. Decisions of the Federal Social Court of 13 April 2011 on basic income support for job seekers (SGB II)
2.1 – Federal Social Court (BSG) judgment of 13 April 2011, – B 14 AS 98/10 R –
If recipients of Hartz IV benefits are unlawfully assigned one-euro jobs, they are entitled to back payment of the collectively agreed wage.
Note: See also an article by social law expert Attorney Ludwig Zimmermann in the Nomos specialist forum for livelihood security
The Federal Social Court (BSG) ruled on April 13, 2011 – B 14 AS 98/10 R – that a benefit recipient who is not employed in an "additional" 1 EURO job may have a public-law claim for reimbursement against the benefit provider.
Although the Federal Administrative Court (BVerwG) ruled on December 16, 2004 (5 C 71.03) that Section 19 Paragraph 2 of the Federal Social Assistance Act (BSHG), as it stood at the time, also applied in favor of "additionally" employed persons, it remained entirely unclear whether Section 262 of the German Social Code, Book III (SGB III) also applied in favor of benefit recipients.
Contrary to the ruling of the Baden-Württemberg State Social Court (LSG BW) on November 2, 2009 (L 1 AS 746/09), I have consistently assumed that Section 262 also applies to benefit recipients (Das Hartz IV Mandat, Baden-Baden 2010, Chapter 3, Paragraph 174).
The Federal Social Court (BSG) has now had to decide on the appeal of another panel of the Baden-Württemberg State Social Court (LSG BW) (case number L 13 AS 419/07) and also seems to have accepted the protective effect of Section 262 of the German Social Code, Book III (SGB III). I am eager to see the reasoning behind the judgment.
In a decision dated December 16, 2008, B 4 AS 60/07 R, the 4th Senate still doubted whether Section 262 of the German Social Code, Book III (SGB III) has a third-party protective character (see paragraph 28, quote: "Doubts as to whether an examination of this characteristic can also be demanded of employable persons in need of assistance who defend themselves against the reduction of their benefit entitlement are at least appropriate from the point of view that the objective of the additionality characteristic is likely to be geared more towards the protection of competitors.")
For me, this decision is therefore a minor sensation.
2.2 – Federal Social Court (BSG) judgment of 13 April 2011, – B 14 AS 53/10 R-
Hartz IV recipients are only entitled to basic furnishings for their initial apartment and clothing after release from prison, which meet simple needs.
The prices used for the individual furnishings and clothing items are clearly presented, including their sources; they are also calculated in such a way that, in addition to the – generally reasonable – purchase of used goods, the purchase of new goods is also possible. Finally, for clothing, changes due to laundry and seasonal factors were also taken into account.
2.3 – Federal Social Court (BSG) judgment of 13 April 2011, – B 14 AS 85/09 R-
When determining the appropriate housing costs, the entire urban area of Berlin forms the relevant comparison area.
2.4 – Federal Social Court (BSG) judgment of 13 April 2011, – B 14 AS 32/09 R-
No increased Hartz IV benefits for long-term tenants
Reasons such as the fact that HB has lived in the apartment since 1959; and that he keeps a comprehensive archive in it, particularly on the topics of sports, the Ministry for State Security and football, in which he is internationally recognized as a scientific expert, do not explain why he should have a higher entitlement to housing benefits than the appropriate amount beyond the expired six-month period of Section 22 Paragraph 1 Sentence 3 of the German Social Code, Book II (SGB II).
To determine a reasonable price per square meter, the Berlin rent index should be consulted. However, regarding the building age category it uses (1965 to 1972) with a basic standard of amenities and a living area of 40 to under 60 square meters, it must be established that such apartments are statistically so common across all districts that this building age category alone can be used. If no building age category can be used, it is advisable to calculate a weighted arithmetic value based on the distribution of apartments in the population across the respective building age categories (see Federal Social Court judgment of October 19, 2010 – B 14 AS 50/10 R).
3. Decision of the Federal Social Court of 24 February 2011 on basic income support for job seekers (SGB II)
3.1 – Federal Social Court (BSG) judgment of 24 February 2011, – B 14 AS 45/09 R –
If the applicant, as (co-)heir, has assumed the universal succession of her grandmother, it must be assumed that a sum of money resulting from the inheritance is to be classified as assets, because HB received the sum as an individual gift by way of a legacy and thus as a claim against the estate (Section 1939 of the German Civil Code (BGB), see only Weidlich in Palandt, BGB, 70th edition 2011, Section 1939, marginal note 5 with further references).
In the case of universal succession, the inheritance passes directly to the heirs by operation of law, irrespective of the fact that, due to the right of disclaimer, an heir is only acquired upon acceptance. Upon the testator's death, the heir can dispose of their share of the estate (cf. Section 2033 Paragraph 1 Sentence 1 of the German Civil Code), without it being necessary to enforce claims against other heirs (for details, see Federal Social Court, SozR 4-4200 § 12 No. 12).
This very possibility of disposal constitutes an inflow within the meaning of the case law cited (The German Social Code, Book II (SGB II) itself does not distinguish between income and assets. As the senates of the Federal Social Court (BSG) responsible for the SGB II have already ruled, income within the meaning of Section 11 Paragraph 1 SGB II is generally everything of value that someone receives after submitting an application, and assets are what they already possessed before submitting the application (see, for example, BSG judgment of July 30, 2008 – B 14 AS 26/07 R – SozR 4-4200 § 11 No. 17 and BSGE 101, 291 = SozR 4-4200 § 11 No. 15; see also judgment of October 28, 2009 – B 14 AS 62/08 R). The starting point is the actual inflow, unless a different inflow is legally determined to be decisive. The fate of the claim is irrelevant).
In the case of universal succession, the decisive factor is that the inheritance occurred with the grandmother's death before the (first) application was filed (see, in this respect, Federal Social Court judgment of October 28, 2009 – B 14 AS 62/08 R – juris para. 22). The receipt of the sum of money in June 2008 from this inheritance constitutes, in this case, the liquidation of existing assets and is therefore still to be classified as assets (cf. Federal Social Court judgment of September 6, 2007 – B 14/7b AS 66/06 R – BSGE 99, 77 = SozR 4-4200 § 12 No. 5, para. 19 in each case).
If, on the other hand, HB has only become the holder of a claim against the estate upon the inheritance, allowances are not to be taken into account because in this case, at the time of receipt of the sum of money, it is income within the meaning of Section 11 of the German Social Code, Book II (BSG judgment of October 28, 2009 – B 14 AS 62/08 R – paragraph 22).
4. Decision of the Federal Social Court of 18 January 2011 on basic income support for job seekers (SGB II)
4.1 – Federal Social Court (BSG) judgment of 18 January 2011, – B 4 AS 14/10 R –
No Hartz IV benefits abroad
Anyone living outside of Germany cannot receive Hartz IV benefits. This also applies to unemployed people who live in neighboring countries and have worked in Germany as so-called cross-border commuters. The law stipulates that Hartz IV recipients must have their habitual residence in Germany. After all, the benefit amount is calculated based on a standard of living within Germany
With Section 7 Paragraph 1 Sentence 1 Number 4 of the German Social Code, Book II (SGB II), the legislator – in accordance with the general principle that, at least in the case of tax-financed benefits, the residence is the determining factor (Mrozynski, SGB I, General Part, 4th edition 2010, Section 30, marginal notes 9, 12) – expressly referred to the concept of habitual residence in Section 30 Paragraph 1 of the German Social Code, Book I (SGB I) (see Bundestag printed matter 15/1516, p. 52). According to Section 30 Paragraph 3 Sentence 2 of the German Social Code, Book I (SGB I), a person has their habitual residence where they reside under circumstances that indicate that they are not merely staying temporarily in that place or area.
A claim to benefits to secure subsistence does not arise from a restriction of the territoriality principle of Section 7 Paragraph 1 Sentence 1 No. 4 SGB II in conjunction with Section 30 SGB I.
5. Decisions of the Federal Social Court of 14 April 2011 on social assistance (SGB XII)
5.1 – Federal Social Court (BSG) judgment of 14 April 2011, – B 8 SO 18/09 R –
A normative division (according to headcount) is not justified if – as in the present case – there is neither a community of activity nor a community of need between the residents or a household community with other persons in need of assistance.
5.2 – Federal Social Court (BSG) judgment of 14 April 2011, – B 8 SO 12/09 R-
No higher allowance pursuant to Section 82 Paragraph 3 Sentence 3 of the German Social Code, Book XII (SGB XII) for a person over 70 years of age.
The unreasonableness of employment due to his age, which HB cites as grounds for applying the regulation, is precisely the standard case under the German Social Code, Book XII (SGB XII), which provides assistance for subsistence (Chapters 3 and 4 of the SGB XII) only for those over 65 and those unable to work. For the special social assistance benefits of Chapters 5 to 9, which are also available to other persons in need, the provisions of Sections 85 et seq. of the SGB XII apply to the crediting of income.
5.3 – Federal Social Court (BSG) judgment of 14 April 2011, – B 8 SO 19/09 R –
The care allowance is a cost of accommodation within the meaning of Section 29 of the German Social Code, Book XII (SGB XII), because it is a mandatory obligation arising from the tenancy agreement and is also included as a condition in the notification to the landlord regarding the promotion of social housing.
5.4 – Federal Social Court (BSG) judgment of 14 April 2011, – B 8 SO 23/09 R –
The transitional provisions of Section 147 of the Federal Social Assistance Act (BSHG) and Section 115 of Book XII of the German Social Code (SGB XII) do not only cover reimbursement claims relating to costs incurred before 1994. Rather, these provisions also apply to costs that arose after 1993 but relate to ongoing reimbursement cases from before 1994. Like Sections 108 of the BSHG and 108 of Book XII of the German Social Code (SGB XII), they focus not on the individual reimbursement claim, but on the entire reimbursement case.
6. Decisions of the State Social Courts on basic income support for job seekers (SGB II)
6.1 – Lower Saxony-Bremen State Social Court, Decision of April 8, 2011, -L 13 AS 104/11 B ER-
There is no legal basis for higher benefits under the German Social Code, Book II (SGB II) from 1 January 2011 onwards (as also ruled by the lower court, Social Court of Oldenburg, decision of 18 February 2011, – S47 AS 196/11 ER –, published in the case law ticker of Tacheles, week 9/2011).
Source: Tacheles readers
6.2 – State Social Court of Saxony-Anhalt, decision of 09.03.2011, – L 2 AS 87/11 ER (L 2 AS 484/10) –
According to Section 39 No. 1 of the German Social Code, Book II (SGB II), objections and appeals against an administrative act that cancels, withdraws, revokes or reduces basic income support benefits for job seekers do not have suspensive effect.
The suspensive effect of an appeal against a decision (following the revocation of a benefit award) that regulates the recipient's obligation to reimburse benefits is not excluded. However, analogous application is also precluded in light of the clear provision of Section 39 Paragraph 1 of the German Social Code, Book II (SGB II), in the revised version applicable from the beginning of 2009 (without transition) (see Conradis in LPK-SGB II, 3rd edition, Section 39, marginal notes 4 and 11).
An objection to a decision on the refusal of benefits pursuant to Section 66 of the German Social Code, Book I (SGB I) generally has no suspensive effect.
According to Section 39 No. 1 of the German Social Code, Book II (SGB II), in the version valid from January 1, 2009, objections and appeals against an administrative act that revokes, withdraws, rescinds, or reduces basic income support benefits do not have suspensive effect. This new regulation clarifies the previous version of the law. According to the former No. 1 of the provision, decisions based on Section 66 of the German Social Code, Book I (SGB I) were also immediately enforceable, according to the prevailing opinion (see Conradis in: LPK-SGB II, 3rd edition 2009, Section 39, marginal note 1; Hengelhaupt in: Hauck/Notfz, SGB II, Section 39, marginal note 76; contra: Coseriu/Holzhey in: Linhart/Adolph, SGB II, Section 39, marginal note 10). The legislator's intent is clear: there should be no change in the legal situation regarding the assessment of refusal notices under Section 66 of the German Social Code, Book I (SGB I). The legislator merely intended to clarify that revocation and reimbursement notices are not covered by Section 39 No. 1 of the German Social Code, Book II (SGB II). The intention was simply to expand and clarify the provision (see Bundestag Printed Matter 16/10810, p. 50 on No. 14 (Section 39 SGB II)). Therefore, the existing regulations continue to apply to refusal notices under Section 66 SGB I (established case law of the Senate, see decision of September 24, 2010, B 5 AS 36/10 B ER; see also: Higher Social Court of Lower Saxony-Bremen, decision of March 8, 2010, L 13 AS 34/10 B ER).
The dissenting opinion, which is based on the wording of the newly revised Section 39 Paragraph 1 of the German Social Code, Book II (SGB II) (Hessian State Social Court, decision of December 27, 2010, L 9 AS 612/10 B ER; Baden-Württemberg State Social Court, decision of April 8, 2010, L 7 AS 304/10 ER-B), does not sufficiently consider the legislative intent and the legislative history of the provision and leads to an unjustified differentiation within Section 66 of the German Social Code, Book I (SGB I). For the purposes of applying this section, the suspensive effect cannot depend on whether a benefit has already been granted and revoked due to a lack of cooperation or whether a requested benefit is denied from the outset.
6.4 – Hessian State Social Court decision of 25 March 2011, – L 9 AS 108/11 B –
In social court proceedings, an appeal against the rejection of the granting of legal aid is excluded if no legal remedy is available in the main proceedings (see decision of the Senate of 6 July 2009 – L 9 AS 274/08 AS -).
This has not changed as a result of the new regulation of Section 172 Paragraph 3 No. 1 of the Social Court Act (SGG) in the version of the Third Act Amending Book Four of the Social Code and Other Acts of August 5, 2010 (Federal Law Gazette I 1127), which entered into force on August 11, 2010.
The Senate therefore sees it the same way as the 7th Senate of the Hessian. The Higher Social Court (LSG) (decision of October 4, 2010 – L 7 AS 436/10 B –) saw no reason to deviate from its previous case law, so that in main proceedings, an appeal against a decision rejecting legal aid for lack of prospects of success pursuant to Sections 73a, 127 Paragraph 2 Sentence 2 Half-Sentence 2 of the German Code of Civil Procedure (ZPO) remains inadmissible if the value of the subject matter of the main proceedings does not exceed the value threshold for the admissibility of the appeal (similarly, Higher Social Court of Saxony-Anhalt, decision of December 13, 2010 – L 5 AS 426/10 B –; Higher Social Court of Berlin-Brandenburg, decisions of September 27, 2010 – L 20 AS 1602/10 B PKH – and of December 22, 2010 – L 34 AS 2182/10 B PKH –; contra Higher Social Court of Berlin-Brandenburg, decision of 29. October 2010 – L 25 B 2246/08 AS PKH -; Saxon State Social Court, decision of December 9, 2010 – L 3 AS 240/09 B PKH -).
6.5 – Bavarian State Social Court Judgment of March 29, 2011 – L 8 AS 75/1-
No appeals via email
SMS, Twitter, and email have largely replaced traditional forms of written communication. Does this also apply to legal transactions with courts, particularly the filing of appeals?
Starting point
A plaintiff challenged the repayment of approximately €1,300 in Hartz IV benefits. His challenge was unsuccessful; the social court dismissed his claim. The plaintiff appealed this ruling, not in writing, but via email.
The decision
The Bavarian State Social Court has clarified that emails for lodging appeals do not meet the legal formal requirements of procedural law.
Impact of the decision
Electronic legal communication will eventually replace paper documents in the courts. However, for reasons of legal certainty, certain formal requirements will then apply to access to the courts. Unsigned emails, not least because of their redundant and arbitrary nature, will certainly continue to be insufficient for filing appeals.
Note: See Bavarian State Social Court decision of 09.03.2011, – L 7 AS 151/11 B ER –, published in the case law ticker of Tacheles KW 15/2011.
The appeal submitted by email is invalid for another reason. An email intended to be equivalent to a signed document must, according to Section 65a Paragraph 1 Sentences 3 and 4 of the Social Court Act (SGG), be provided with a qualified electronic signature or transmitted via another approved secure method. An appeal must be filed in writing according to Section 173 Sentence 1 of the SGG. This means that a document signed by hand must be submitted (cf. Section 126 Paragraph 1 of the German Civil Code (BGB) and Meyer-Ladewig, Social Court Act, 9th edition 2008, Section 173, marginal note 3). There is no provision that waives the signature requirement (as in Section 92 Paragraph 1 Sentence 3 of the SGG for actions: "The action shall be signed") for appeals. The email of February 17, 2011, however, did not have a qualified electronic signature.
6.6 – Berlin-Brandenburg State Social Court, decision of 28 February 2011, – L 14 AS 205/11 B ER –
As long as the person in need of assistance is receiving benefits, they will usually be dependent on the basic income support provider covering their accommodation costs (BSG, judgment of May 7, 2009 – B 14 AS 31/07 R –).
Against this background, every employable person in need of assistance is entitled to receive the benefits to which they are legally entitled in a timely manner, enabling them to fulfill their contractual obligations to their landlord in a timely manner. The risk of eviction, legal proceedings for late rent payment (with the associated costs), or even an eviction lawsuit is generally unreasonable for them (most recently, the Senate's decision of August 31, 2010 – L 14 AS 1263/10 B ER –).
Accordingly, grounds for an order will regularly only be denied if the employable person in need of assistance can cover the actual expenses, at least provisionally, from income ("allowances") or assets ("protected assets") that are not to be taken into account.
7. Decisions of the social courts on basic income support for job seekers (SGB II)
7.1 – Darmstadt Social Court Judgment of 14 March 2011, – S 22 AS 395/10 –
The job center is not obligated to cover unreasonable accommodation costs simply because the apartment offers ideal conditions for intended self-employment.
1. The determination of the abstract limits of reasonableness for the costs of accommodation pursuant to Section 22 Paragraph 1 of the German Social Code, Book II (SGB II) is carried out in the district of Bergstraße according to a coherent concept.
2. The comparison area, irrespective of municipal political boundaries, should be large enough to represent a statistically valid and measurable housing market.
3. If the SGB II benefit provider does not limit its data collection to the simple market segment, it is not obliged to collect data on the number of rooms, furnishings, location or building structure.
4. Frustrating costs for personal contributions to the renovation and conversion of the rented property, even if they were particularly high, do not render the move unreasonable.
7.2 – Aachen Social Court, Judgment of April 6, 2011, – S 5 AS 462/10 –, Appeal allowed
The question of how future unclear income should be taken into account when granting provisional benefits has not yet been sufficiently clarified in case law.
According to Section 2 Paragraph 3 Sentence 1 of the Ordinance on the Calculation of Income and the Disregard of Income and Assets for Unemployment Benefit II/Social Assistance (ALG II-V) as amended on December 17, 2007 (Federal Law Gazette I 2007, 2942), and amended on July 23, 2009 (Federal Law Gazette I 2009, 2340), a monthly average income may be used as the basis for calculation if, in the case of ongoing income during the benefit period, it is expected that this income will vary in amount. The monthly average income for each month in the benefit period is the portion of the income that results from dividing the total income for the benefit period by the number of months in the benefit period (see Sentence 2 of Section 2 Paragraph 3 ALG II-V).
The average monthly income of the previous benefit period should be used as a guideline (see also the Federal Employment Agency's Implementation Guidelines for the Application of Book II of the German Social Code [DH-BA SGB II], No. 11.8). Section 2, paragraph 3, sentence 2 of the ALG II-V (Regulation on Unemployment Benefit II) expressly only applies to income that is known in total, stipulating that the total income of the benefit period (i.e., the future period) is to be divided by the number of months in the (future) period. However, if the total income for the (future) period – as is also the case here with the income for each individual month of this period – is not yet known and no change compared to the previous period is expected, the defendant is entitled to use the total income of the previous benefit period and to base the benefit calculation on the average monthly income of this benefit period.
7.3 – Bremen Social Court decision of 05.04.2011, – S 23 AS 497/11 ER –
Even under the new legal situation (§ 22 para. 8 SGB II nF), the interruption of the electricity supply constitutes an emergency situation almost equivalent to homelessness (see decision of the 21st Chamber of the Social Court of 10 February 2009 – S 21 AS 6/09 ER).
It follows that the service provider usually has to assume corresponding electricity debts and can only deviate from this in atypical cases.
While Section 22 Paragraph 8 Sentence 1 of the German Social Code, Book II (SGB II nF) generally places the decision regarding the assumption of debts to secure housing at the discretion of the benefit provider ("may"), when exercising this discretion regarding the assumption of energy cost arrears, the provider must consider all circumstances of the individual case within the framework of a comprehensive overall assessment. This includes, for example, the amount of the arrears, the reasons that led to the energy cost arrears, the composition of the group of people threatened by a potential energy disconnection (especially the impact on young children), the possibilities and reasonableness of alternative energy supply options, past behavior (e.g., whether this is a first-time or repeated arrears), efforts to adjust consumption patterns, and a demonstrable willingness to help oneself (see, regarding Section 22 Paragraph 5 of the former version: Berlit, in: LPK-SGB II, 2nd edition, 2007, Section 22, marginal note 118 with further references).
7.4 – Social Court Kassel Judgment of 01.03.2011, – S 6 AS 175/09 -, Appeal allowed
In cases of legally binding prior sanctions, the court must review the legality of the prior sanctions. This is because, particularly in cases where it is readily apparent to the court that the previous sanction order is unlawful, the courts would fail in their duty to protect and promote the fundamental rights of the individual (Federal Constitutional Court, decision of May 12, 2005, 1 BvR 569/05, para. 26) if they knowingly left the unlawfulness of the previous sanction order unchallenged.
This does not mean that the previous sanction order itself becomes the subject of dispute. However, the courts must, ex officio, incidentally review the legality of the previous sanction upon which the sanction for the repeated breach of duty is based (Berlit in: Münder (ed.), SGB II, 3rd ed. 2009, § 31 para. 86). If there is no lawful prior sanction, the sanction notice is unlawful due to repeated breach of duty and must be revoked.
In cases of reductions in SGB II benefits due to repeated breaches of obligations, it is necessary that corresponding prior sanction notices exist which establish the existence of a prior sanction event and a corresponding sanctionable event at the lower sanction level (BSG judgment of 09.11.2010, – B 4 AS 27/10 R, para. 20).
The question that is decisive for the present legal dispute, namely whether, in the case of a sanction notice for a repeated breach of duty, it is sufficient for a legally binding sanction notice at the first sanction level to exist, has not yet been sufficiently clarified within the higher court jurisprudence.
According to the Bavarian State Social Court (LSG), in cases of repeated breaches of duty, the legally binding previous sanction notices should have legal effect (Bavarian LSG, decision of 26.04.2010, L 7 AS 212/10 B ER, para. 18), so that the SGB II benefit provider is not obliged to review the previous sanction notice.
The Higher Social Court of Berlin-Brandenburg (decision of 12 October 2007, L 14 AS 1550/07 ER, para. 3) and the Higher Social Court of Lower Saxony-Bremen (decision of 22 June 2009, L 7 AS 266/09 B ER, para. 11 with reference to BSG, SozR 3-4100 § 119 No. 23) rightly require, in agreement with parts of the academic literature (cf. Valgolio in: Hauck & Noftz (eds.), SGB II, 13th supplement VII/07, § 31 para. 105; Berlit in: Münder (ed.), SGB II, 3rd ed. 2009, § 31 para. 86), that in the case of sanctions for repeated breaches of duty, lawful prior sanctions at the respective lower levels must exist.
7.5 – Gelsenkirchen Social Court, decision of March 30, 2011, – S 27 AS 667/11 ER –
Greek citizens are not excluded from benefits under the German Social Code, Book II (SGB II)
The applicant is not excluded from benefits under the German Social Code, Book II (SGB II) pursuant to Section 7 Paragraph 1 Sentence 2. According to this provision, foreigners who are neither employed nor self-employed in the Federal Republic of Germany, nor entitled to freedom of movement under Section 2 Paragraph 3 of the Freedom of Movement Act/EU, and their family members for the first three months of their right of residence (Section 7 Paragraph 1 Sentence 2 No. 1 SGB II), and foreigners whose right of residence is solely for the purpose of seeking employment, and their family members (Section 7 Paragraph 1 Sentence 2 No. 2 SGB II), are excluded from benefits under the SGB II.
Although the applicant entered the Federal Republic of Germany solely for the purpose of seeking employment and established his habitual residence here only for this purpose, so that, according to the wording, the exclusion from benefits under Section 7 Paragraph 1 Sentence 2 Number 2 of the German Social Code, Book II (SGB II) would apply, this exclusion is not applicable to the applicant because, as a Greek national, he can invoke the principle of equal treatment under Article 1 of the European Convention on Human Rights (ECHR), which Greece, along with the Federal Republic of Germany, has signed (see in detail the Federal Social Court's judgment of October 19, 2010 – B 14 AS 23/10 R).
7.6 – Berlin Social Court, decision of 17 February 2011, – S 149 AS 414/11 ER –
1. There are doubts as to whether the indefinite exclusion from benefits pursuant to Section 7 Paragraph 1 Sentence 2 Number 2 of the German Social Code, Book II (SGB II), without differentiation as to whether job seeking was already the purpose of entry or later became the sole purpose of residence, is compatible with the European enabling provision of Article 24 Paragraph 2 of Directive 2004/38/EC (Citizens' Rights Directive) in conjunction with Article 14 Paragraph 4 Letter b of the Citizens' Rights Directive.
2. The conformity of the exclusion of benefits with European law is irrelevant if another right of residence exists. Such a right can arise not only from the freedom of movement for workers and the right of establishment, but also, under certain circumstances, from parental responsibility for a minor child entitled to freedom of movement.
3. Insofar as it cannot be sufficiently clarified within the framework of preliminary legal protection proceedings whether another right of residence exists, a balancing of interests regularly weighs in favor of the applicants, given that benefits under the German Social Code, Book II (SGB II) continuously ensure the guarantee of a dignified minimum standard of living under Article 1 Paragraph 1 of the German Basic Law (GG) in conjunction with the social state principle of Article 20 Paragraph 1 of the German Basic Law (GG).
7.7 – Social Court Berlin Judgment of 18 January 2011, – S 157 AS 26445/08 –
If it remains unclear whether a payment from relatives to support a Hartz IV recipient is intended as a gift or merely a loan, this works to the detriment of the Hartz IV recipient. The payment is considered income and is therefore deducted from their Hartz IV benefits.
To counteract the risk of misuse of public funds, a clear distinction must be made between disguised gifts, maintenance payments, and loans when money flows between relatives. It must be verified whether a loan agreement was actually concluded and is genuinely intended. A minimum requirement for a loan is that a concrete agreement regarding the repayment obligation has been reached no later than the time the money is transferred. At the very least, there must be clarity regarding the amount owed or how this amount is to be determined.
8. Decisions of the State Social Courts on Social Assistance (SGB XII)
8.1 – State Social Court of Saxony-Anhalt, decision of March 29, 2011, – L 8 SO 6/11 B ER –
The provisional nature of interim legal protection means that the other grounds for appeal within the meaning of Section 144 Paragraph 2 of the Social Court Act (SGG) are not to be examined within the framework of Section 172 Paragraph 3 No. 1 of the Social Court Act (SGG) (see, e.g., Higher Social Court of Berlin-Brandenburg, decision of September 30, 2010 – L 20 AS 1702/10 B – ; decision of the Senate of February 4, 2011 – L 8 SO 22/10 B ER – not published).
9. Decisions of the social courts on social assistance (SGB XII)
9.1 – Berlin Social Court decision of 02.03.2011, – S 49 SO 109/11 ER –
According to Section 2 Paragraph 1 of the German Social Code, Book XII (SGB XII), there is no entitlement to social assistance if the necessary assistance is already provided by other sources, in particular by providers of other social benefits. This also applies analogously to assistance with appropriate schooling, since the educational support of school-age children is primarily the responsibility of the school and not the social assistance provider (see Baden-Württemberg Higher Social Court, judgment of November 18, 2010 - L 7 SO 6090/08 -).
https://sozialgerichtsbarkeit.de
10. Kiel Regional Court, Judgment by Consent of 08.12.2010, – 17 O 160/10-
Jobcenter is liable for damages in the event of late payment of ALG II (unemployment benefit II) if the benefit recipient submitted the application for continued payment in a timely manner.
ALG II recipients are entitled to compensation for the financial loss (bank chargeback costs - here 29.65 euros) incurred due to late payment.
There was a claim for official liability under Article 34 of the Basic Law in conjunction with Section 839 of the German Civil Code, which had to be asserted before the Regional Court of Kiel and was to be directed at the damage which an official had caused to another person through intentional or negligent breach of duty.
According to the local social courts, there is no so-called social law claim for restitution that could be asserted before the Social Court.
Source: Attorney Helge Hildebrandt, article in Hempels street magazine (poverty newspaper) No. 180, April 2011, p. 26.
11. Social Law Current Issue 2/2011, a contribution by Dr. Björn Harich, judge at the Social Court Bremen and currently a research assistant at the Federal Social Court.
Legal aid and subsistence level
www.socialrecht-aktuell.nomos.de (pdf)
12. Slides on the German Social Code, Book II (SGB II), prepared by Harald Thome, as of April 12, 2011
13. Neue Justiz Issue 04/2011, an article by social law expert Attorney Ludwig Zimmermann
Beneficiaries under the German Social Code, Book II (SGB II)
13. Technical information on the German Social Code, Book II (SGB II) / New directives:
FH on Sections 11, 11a, 11b SGB II / Status: April 11, 2011
FH on Section 20 SGB II / Status: April 11, 2011
FH on Section 23 SGB II / Status: April 11,
2011 FH on Section 24 SGB II / Status: April 11, 2011
FH on Section 27 SGB II / Status: April 11, 2011
FH on Section 44a SGB II / Status: April 11, 2011
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
